KANCHAN SHARMA versus STATE OF UTTAR PRADESH & ANR. on 17 September 2021

194

SUPREME COURT REPORTS

[2021] 6 S.C.R.

AKANCHAN SHARMA

v.

STATE OF UTTAR PRADESH & ANR.

(Criminal Appeal No. 1022 of 2021)

BSEPTEMBER 17, 2021

[R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]

Penal Code, 1860 – s.306 – Deceased (brother ofcomplainant) went to the house of appellant and consumed poisonby taking out from a small bottle which he carried in his pocket –CProceedings against appellant u/s.306, IPC and 3(2)(v) of the SCand ST Act – High Court rejected application of appellant u/s.482,CrPC – On appeal, held: Merely because deceased consumedpoison in front of the house of the appellant, that itself will notindicate any relation of the appellant with the deceased – AbsolutelyDno material to allege that appellant abetted for suicide of thedeceased within meaning of s.306, IPC – Even with regard tooffence alleged u/s.3(2)(v) of the SC and ST Act, except vague andbald statement that appellant and other family members abuseddeceased by uttering casteist words, nothing on record to attractany of the ingredients for the alleged offence – Earlier, appellantEand her father had gone to police station and complained againstdeceased as he was continuously calling appellant and proposingthat she should marry him with a threat that he will die otherwise– Having regard to same and in absence of any material withinthe meaning of s.107 IPC, there is absolutely no basis to proceedFagainst the appellant u/s.306 IPC and s.3(2)(v) of the SC and STAct – It would be travesty of justice to compel the appellant to facecriminal trial without any credible material whatsoever – HighCourt erred in rejecting application of appellant u/s.482, CrPC –Cognizance order/NBW as well as proceedings u/s.306, IPC and3(2)(v) of the SC and ST Act against the appellant, set aside –GScheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) Act, 1989 – s.3(2)(v) – Code of Criminal Procedure, 1973– s.482.

Penal Code, 1860 – s.306 – Abetment of suicide – Withoutpositive act on the part of the accused to instigate or aid inH

committing suicide, no one can be convicted for offence u/s.306 –To proceed against any person for the offence u/s.306 it requiresan active act or direct act which led the deceased to commit suicide,seeing no option and that act must have been intended to pushthe deceased into such a position that he committed suicide.

Code of Criminal Procedure, 1973 – s.482 – High Court, onfacts, erred in rejecting application filed by appellant u/s.482,CrPC by merely recording a finding that in view of the factualdisputes, same cannot be decided in a petition u/s.482, CrPC –Cognizance order/NBW as well as proceedings u/s.306, IPC and3(2)(v) of the SC and ST Act against the appellant, set aside –Penal Code, 1860 – s.306 – Scheduled Castes and the ScheduledTribes (Prevention of Atrocities) Act, 1989 – s.3(2)(v).

Words and Phrases – Abetment – Meaning of – Held:‘Abetment’ involves mental process of instigating a person orintentionally aiding a person in doing of a thing.

Allowing the appeal, the Court

Conclusion

HELD:1. Except the self-serving statements of thecomplainant and other witnesses stating that deceased was inlove with the appellant, there is no other material to show thatappellant was maintaining any relation with the deceased. Fromthe material placed on record it is clear that on the date ofincident, the deceased went to the house of the appellant andconsumed poison by taking out from a small bottle which he hascarried in his pocket. Merely because he consumed poison infront of the house of the appellant, that itself will not indicateany relation of the appellant with the deceased. ‘Abetment’involves mental process of instigating a person or intentionallyaiding a person in doing of a thing. Without positive act on thepart of the accused to instigate or aid in committing suicide, noone can be convicted for offence under Section 306, IPC. Toproceed against any person for the offence under Section 306IPC it requires an active act or direct act which led the deceasedto commit suicide, seeing no option and that act must have beenintended to push the deceased into such a position that hecommitted suicide. There is nothing on record to show thatappellant was maintaining relation with the deceased and furtherthere is absolutely no material to allege that appellant abetted A

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Afor suicide of the deceased within the meaning of Section 306,IPC. Even with regard to offence alleged under Section 3(2)(v)of the Scheduled Castes and the Scheduled Tribes (Preventionof Atrocities) Act, 1989, except vague and bald statement thatthe appellant and other family members abused deceased byuttering casteist words, there is nothing on record to show toBattract any of the ingredients for the alleged offence also. [Para9][199-F-H; 200-A-C]

2. In fact, at earlier point of time when the deceased wasstalking the appellant, the appellant along with her father wentto the police station complained about the calls which were beingCmade by the deceased to the appellant. Same is evident fromthe statement of S.I. In his statement recorded he has clearlydeposed that the father along with the appellant went to thepolice post and complained against the deceased who wascontinuously calling the appellant and proposing that she shouldDmarry him with a threat that he will die otherwise. Having regardto such material placed on record and in absence of any materialwithin the meaning of Section 107 of IPC, there is absolutelyno basis to proceed against the appellant for the alleged offenceunder Section 306 IPC and Section 3(2)(v) of the ScheduledECastes and the Scheduled Tribes (Prevention of Atrocities) Act,1989. It would be travesty of justice to compel the appellant toface a criminal trial without any credible material whatsoever.[Para 10][202-F-H; 203-A]

3. In view of the same, the High Court has committedFerror in rejecting the application filed by the appellant underSection 482, CrPC by merely recording a finding that in view ofthe factual disputes same cannot be decided in a petition underSection 482, CrPC. [Para 11][203-A-B]

4. The application filed under Section 482 CrPC standsGallowed and the cognizance order/NBW against appellant as wellas proceedings of Special Trial arising out of Crime underSection 306, IPC and 3(2)(v) of the Scheduled Castes and theScheduled Tribes (Prevention of Atrocities) Act, 1989 pendingin the court of Additional District & Sessions Judge/SpecialHJudge (SC & ST Act) are set aside. [Para 12][203-B-C]

Chitresh Kumar Chopra v. State (Govt. of NCT ofADelhi) (2009) 16 SCC 605 : [2009] 13 SCR 230 ;Amalendu Pal @ Jhantu v. State of West Bengal (2010)1 SCC 707 : [2009] 15 SCR 836 ; S.S. Chheena v.Vijay Kumar Mahajan & Anr. (2010) 12 SCC 190 :[2010] 9 SCR 1111 ; and Rajiv Thapar & Ors. v.BMadan Lal Kapur (2013) 3 SCC 330 : [2013] 3 SCR52 – relied on.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.1022 of 2021.

D

From the Judgment and Order dated 18.07.2019 of the HighCourt of Judicature at Allahabad in Application u/s 482 No.27662 of2019.

Sanchit Garga, Adv. for the Appellant.

E

Aviral Saxena, Sarvesh Singh Baghel, Advs. for the Respondents.

The Judgment of the Court was delivered by

R. SUBHASH REDDY, J.

1. Leave granted.

F

2. This criminal appeal is filed by the applicant in ApplicationNo.27662 of 2019, aggrieved by the order dated 18.07.2019 passed bythe High Court of Allahabad, dismissing her application filed underSection 482 of Code of Criminal Procedure (Cr.PC).

3. That on 11.05.2018, an FIR bearing Case Crime No.278/2018was registered at P.S. T.P. Nagar Police Station, District Meerut onthe complaint of Vijaydeep (complainant and brother of the deceased)under Sections 328, 302, IPC and 3(2)(v) of The Scheduled Castes andthe Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short,‘the Act’), alleging that his brother Vikas (deceased) was called by the G

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Aappellant – Kanchan Sharma on 04.05.2018 at her house. At that pointof time his brother was on duty at PVM Logistic Company and on suchcall, he went to the house of the appellant, wherein the appellant’s father,mother and sister met his brother and all of them abused his brotherwith casteist abuses and forcefully administered poison to him andconsequently his brother became unconscious. Complainant furtherBstated that his brother was taken to hospital and due to the negligenceof the hospital, he died.

4. Initially FIR was registered for offences punishable underSections 328, 302 of IPC and Section 3(2)(v) of the Act against theappellant, her brother and sister. After investigation, final report wasCfiled only against the appellant for the offence under Section 306 IPCand Section 3(2)(v) of the Act. On filing such final report, cognizancewas taken against the appellant and on 21.02.2019 non-bailable warrantswere issued against the appellant. After filing of the final report, casewas registered against the appellant in Special Sessions Trial No.23 ofD2019 (State v. Kanchan Sharma) under Section 306 IPC and Section3(2)(v) of the Act, which is pending on the file of the Additional District& Sessions Judge / Special Judge, Scheduled Castes & Scheduled Tribes(Prevention of Atrocities) Act, Meerut.

5. Appellant herein has approached the High Court for quashingEof cognizance order / NBW issued against her as well as the criminalproceedings in Special Trial No.23 of 2019 pending on the file of theAdditional District & Sessions Judge / Special Judge, Scheduled Castes& Scheduled Tribes (Prevention of Atrocities) Act, by way of applicationunder Section 482, Cr.PC for quashing the proceedings. It was the caseof the appellant before the High Court that no offence is made outFagainst the appellant to proceed for trial for the alleged offence underSection 306, IPC and Section 3(2)(v) of the Act. The High Court, byimpugned order, has disposed of the petition mainly on the ground thatthe disputed questions of fact cannot be adjudicated at this stage underSection 482, Cr.PC.G6. We have heard Sri Sanchit Garga, learned counsel for theappellant and Sri Aviral Saxena, learned counsel for the 1[st]respondent-State. Though the 2[nd] respondent-complainant is served,there is no appearance on his behalf before this Court.

7. Sri Garga, learned counsel for the appellant has mainlyHcontended that there is absolutely no basis to proceed against the

appellant for alleged offence under Section 306, IPC and Section 3(2)(v) of the Act. It is submitted that except that the appellant was harassedby the deceased by following her and proposing marriage with him thereis absolutely no basis to allege that the appellant has abetted the suicideof the deceased. It is submitted that on the day of incident, i.e.,04.05.2018 deceased came to the house of the appellant and startedshouting that he would marry the appellant and if her marriage wasnot solemnized he would consume poison. Within no time thereafter heconsumed poison from a small bottle which he was holding in his handand fell unconscious and thereafter died in the hospital. It is submittedthat in absence of any of the ingredients of Section 306/107, IPC,appellant cannot be subjected to trial for the offence under Section 306,IPC and Section 3(2)(v) of the Act. It is submitted that by consideringthe material as it is on record even the offence under Section 3(2)(v)of the Act is not made out.

8. On the other hand, learned counsel for respondent no.1-Statehas submitted that the deceased was maintaining relation with theappellant. As she has refused to marry the deceased, deceased hascommitted suicide by consuming poison. In view of the relationmaintained by her, it amounts to abetment for committing the suicideby the deceased within the meaning of Section 306 of IPC. It is furthersubmitted that the appellant and other members of the family haveabused the deceased by uttering casteist words, as such, appellant isrightly sought to be prosecuted for the offence under Section 3(2)(v)of the Act.

9. Having heard learned counsel on both sides, we have perusedthe impugned order and other material placed on record. Except theself-serving statements of the complainant and other witnesses statingthat deceased was in love with the appellant, there is no other materialto show that appellant was maintaining any relation with the deceased.From the material placed on record it is clear that on the date of incidenton 04.05.2018 deceased went to the house of the appellant andconsumed poison by taking out from a small bottle which he has carriedin his pocket. Merely because he consumed poison in front of the houseof the appellant, that itself will not indicate any relation of the appellantwith the deceased. ‘Abetment’ involves mental process of instigatinga person or intentionally aiding a person in doing of a thing. Withoutpositive act on the part of the accused to instigate or aid in committingsuicide, no one can be convicted for offence under Section 306, IPC.

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ATo proceed against any person for the offence under Section 306 IPCit requires an active act or direct act which led the deceased to commitsuicide, seeing no option and that act must have been intended to pushthe deceased into such a position that he committed suicide. There isnothing on record to show that appellant was maintaining relation withthe deceased and further there is absolutely no material to allege thatBappellant abetted for suicide of the deceased within the meaning ofSection 306, IPC. Even with regard to offence alleged under Section3(2)(v) of the Act it is to be noticed that except vague and baldstatement that the appellant and other family members abused deceasedby uttering casteist words but there is nothing on record to show toCattract any of the ingredients for the alleged offence also. This Courtin the case of Chitresh Kumar Chopra v. State (Govt. of NCT ofDelhi)[1]had an occasion to deal with the aspect of abetment. In thesaid case this Court has opined that there should be an intentionto provoke, incite or encourage the doing of an act by the accused.Besides, the judgment also observed that each person’s suicidabilityDpattern is different from the other and each person has his own ideaof self-esteem and self-respect. In the said judgment it is held that it isimpossible to lay down any straightjacket formula dealing with the casesof suicide and each case has to be decided on the basis of its ownfacts and circumstances. In the case of Amalendu Pal @ JhantuEv. State of West Bengal[2]in order to bring a case within the purviewof Section 306, IPC this Court has held as under :

“12. Thus, this Court has consistently taken the view that beforeholding an accused guilty of an offence under Section 306 IPC,the court must scrupulously examine the facts and circumstancesFof the case and also assess the evidence adduced before it inorder to find out whether the cruelty and harassment meted outto the victim had left the victim with no other alternative but toput an end to her life. It is also to be borne in mind that in casesof alleged abetment of suicide there must be proof of direct orindirect acts of incitement to the commission of suicide. MerelyGon the allegation of harassment without there being any positiveaction proximate to the time of occurrence on the part of theaccused which led or compelled the person to commit suicide,conviction in terms of Section 306 IPC is not sustainable.

1 (2009) 16 SCC 605H2 (2010) 1 SCC 707

KANCHAN SHARMA v. STATE OF UTTAR PRADESH & ANR.[R. SUBHASH REDDY, J.]

13. In order to bring a case within the purview of Section 306IPC there must be a case of suicide and in the commission ofthe said offence, the person who is said to have abetted thecommission of suicide must have played an active role by an actof instigation or by doing certain act to facilitate the commissionof suicide. Therefore, the act of abetment by the person chargedwith the said offence must be proved and established by theprosecution before he could be convicted under Section 306 IPC.”

In the judgment in the case of S.S. Chheena v. Vijay KumarMahajan & Anr.[3]this Court reiterated the ingredients of offence ofSection 306 IPC. Paragraph 25 of the judgment reads as under :

“25. Abetment involves a mental process of instigating a personor intentionally aiding a person in doing of a thing. Without apositive act on the part of the accused to instigate or aid incommitting suicide, conviction cannot be sustained. The intentionof the legislature and the ratio of the cases decided by this Courtis clear that in order to convict a person under Section 306 IPCthere has to be a clear mens rea to commit the offence. It alsorequires an active act or direct act which led the deceased tocommit suicide seeing no option and that act must have beenintended to push the deceased into such a position that hecommitted suicide.”

In the judgment in the case of Rajiv Thapar & Ors. v. MadanLal Kapur[4]this Court has considered the scope of the provision underSection 482, Cr.PC and has laid down the steps which should befollowed by the High Court to determine the veracity of a prayer forquashing of proceedings in exercise of power under Section 482, Cr.PC.Paragraph 30 containing the four steps read as under :

“30. Based on the factors canvassed in the foregoing paragraphs,we would delineate the following steps to determine the veracityof a prayer for quashment raised by an accused by invoking thepower vested in the High Court under Section 482 CrPC:

30.1. Step one: whether the material relied upon by the accusedis sound, reasonable, and indubitable i.e. the material is of sterlingand impeccable quality?

3 (2010) 12 SCC 190

4 (2013) 3 SCC 330

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30.2. Step two: whether the material relied upon by the accusedwould rule out the assertions contained in the charges levelledagainst the accused i.e. the material is sufficient to reject andoverrule the factual assertions contained in the complaint i.e. thematerial is such as would persuade a reasonable person to dismissand condemn the factual basis of the accusations as false?

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30.3. Step three: whether the material relied upon by the accusedhas not been refuted by the prosecution/complainant; and/or thematerial is such that it cannot be justifiably refuted by theprosecution/complainant?

C30.4. Step four: whether proceeding with the trial would resultin an abuse of process of the court, and would not serve the endsof justice?

30.5. If the answer to all the steps is in the affirmative, the judicialconscience of the High Court should persuade it to quash suchDcriminal proceedings in exercise of power vested in it underSection 482 CrPC. Such exercise of power, besides doing justiceto the accused, would save precious court time, which wouldotherwise be wasted in holding such a trial (as well asproceedings arising therefrom) specially when it is clear that thesame would not conclude in the conviction of the accused.”E

10. By applying the aforesaid ratio decided by this Court, wehave carefully scrutinized the material on record and examined the factsof the case on hand. Except the statement that the deceased was inrelation with the appellant, there is no material at all to show thatappellant was maintaining any relation with the deceased. In fact, atFearlier point of time when the deceased was stalking the appellant, theappellant along with her father went to the police station complainedabout the calls which were being made by the deceased to the appellant.Same is evident from the statement of S.I. Manoj Kumar recorded on05.07.2018. In his statement recorded he has clearly deposed that theGfather along with the appellant went to the police post and complainedagainst the deceased who was continuously calling the appellant andproposing that she should marry him with a threat that he will dieotherwise. Having regard to such material placed on record and inabsence of any material within the meaning of Section 107 of IPC, thereis absolutely no basis to proceed against the appellant for the allegedHoffence under Section 306 IPC and Section 3(2)(v) of the Act. It would be travesty of justice to compel the appellant to face a criminal trialwithout any credible material whatsoever.

11. In view of the same, we are of the view that the High Courthas committed error in rejecting the application filed by the appellantby merely recording a finding that in view of the factual disputes samecannot be decided in a petition under Section 482, Cr.PC.

12. For the aforesaid reasons, this appeal is allowed and Orderdated 18.07.2019 passed by the High Court of Allahabad in ApplicationNo.27662 of 2019 is set aside. Consequently, the said application standsallowed by quashing the order/NBW dated 21.02.2019 as well asproceedings of Special Trial No.23 of 2019 (State v. Kanchan Sharma)arising out of Crime No.0278 of 2018 under Section 306, IPC and 3(2)(v)of The Scheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) Act, 1989 pending in the court of Additional District &Sessions Judge / Special Judge (SC & ST Act), Meerut.

Bibhuti Bhushan Bose

Appeal allowed.

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