PRINCIPLES
OF Quashing of F.I.R for offence U/S 306 of IPC
A criminal proceedings or First Information Report
(F.I.R) may be quashed by the High Courts, if as per law and with a view to
secure interest of justice, such orders are necessary. The law in this regard
has evolved over the years and a set of guidelines are also issued periodically
by hon’ble Supreme Court. However, undoubtedly, the power of quashing u/s 482
of the Code of Criminal Procedure is a very comprehensive power available to
high court for preventing abuse of process of court or to secure the ends of
justice.
Before going further and with a view to elucidate
the basic premise of Section of 482 of Code of Criminal Procedure, a celebrated
judgment pronounced by the Supreme Court reported as State of Haryana
& Ors. Vs. Bhajan Lal & Ors. (1992) Supp (1) SCC 335. The Supreme Court has held
that it may not be possible to
lay down any precise, clearly defined and inflexible guidelines or rigid
formulae and to specify an exhaustive list of the cases, where such power
should be exercised. However, by way of illustration, the Supreme Court laid
down the following categories of cases wherein such power could be exercised
either to prevent abuse of the process of the Court or otherwise to secure the
ends of justice.
“(1) Where the
allegations made in the First Information Report or the complaint, even if they
are taken at their face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused.
(2) Where the allegations in the First
Information Report and other materials, if any, accompanying the F.I.R. do not
disclose a cognizable offence, justifying an investigation by police officers
under Section 156(1) of the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations
made in the FIR or 'complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out a case against the
accused.
(4) Where the allegations in the FIR do
not constitute a cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer without an order of
a Magistrate as contemplated under Section 155(2)of the Code.
(5) Where the allegations made in the FIR
or complaint are so absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is sufficient ground
for proceeding against the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution and continuance
of the proceedings and/or where there is a specific provision in the Code or
the concerned Act, providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal grudge.”
In Geo Verghese Versus The State of Rajasthan & Anr, Criminal
Appeal No. 1164 OF 2021, the
Supreme Court had to deal with the aspect of quashing qua the offence u/s 306
of Indian Penal Code.
As regards the facts of the
case, one student of Class 9th of the institution, unfortunately,
committed suicide in the morning at about 04:00 AM on 26.04.2018. The Mother of
the deceased-student lodged the FIR in question on 02.05.2018 before the
concerned Police Station under Section 306 IPC after about 7 days of the
suicide, alleging that her son committed suicide due to mental harassment meted
out by the teacher/appellant.
Broad contour of F.I.R
In Geo Verghese(Supra) the F.I.R was as under:
On 26.04.2018, my son, aged
14 years was found hanging with the fan in the room at 04:00 AM by his
grandmother. Immediately, the knot was opened and after bringing him down, he was
immediately taken to Hospital where doctors declared him brought dead. The
Hospital administration informed the concerned Police Station immediately and
on the same day, the body of deceased was handed over to the police and
postmortem was conducted. It is further stated in the FIR that on 19.04.2018,
the deceased informed her that on the said day his PTI (Physical Training
Instructor) had harassed and insulted him in the presence of everyone, because
of which he was under deep mental pressure. However, she persuaded her son and
sent him to the School on Monday. Thereafter, on 25.04.2018, when the child was
in the School, a telephone call was received from school at about 09:00 AM
calling the parents to come to the school on the next day i.e., 26.04.2018.
When her Son (since deceased) returned from the school on 25.04.2018 again he
was under very much pressure and on being inquired he told that today again that
PTI Sir has harassed and insulted him very much. On this she persuaded the
child that we will go to school tomorrow and will discuss because a phone call
came from the school. Thereafter, the child had been under more severe pressure
and tension. He went to his room to sleep and was found hanging at about 04:00
AM. It is further stated that on 30.04.2018 at 11:00 AM, Assistant
Sub-Inspector, came to the house and searched his room where a suicide note in
two pages and curtain which was used for hanging and other items like a blank
copy from which two pages were torn and note book, etc. were recovered.
When the F.I.R is analysed in the touchstone of
law what may be evident is that as per the penal provisions prescribed in
Indian penal Code, suicide in itself is not an offence as a person committing
suicide goes beyond the reach of law but an attempt to suicide is considered to
be an offence under Section 309 IPC. The abetment of suicide by anybody is also
an offence under Section 306 IPC. In
this write up, though, I confine it to section 306 of IPC. Before delving further,
it may be worthwhile to reproduce section 306 of the IPC which reads as under
:-
“306. Abetment of suicide.—If any person commits suicide, whoever
abets the commission of such suicide, shall be punished with imprisonment of
either description for a term which may extend to ten years, and shall also be
liable to fine.”
It is more often it is to be ascertained by
courts, if there was any element of instigation to commit suicide. The ordinary
dictionary meaning of the word ‘instigate’ is to bring about or initiate,
incite someone to do something. The Supreme Court in the case of Ramesh Kumar Vs. State of
Chhattisgarh (2001) 9 SCC 618 has defined the word ‘instigate’ as under :-
“Instigation is to goad, urge forward,
provoke, incite or encourage to do an act.”
The scope and ambit of
Section 107 IPC and its co-relation with Section 306 IPC has been discussed
repeatedly by the Supreme Court. In the
case of S.S.Cheena Vs.
Vijay Kumar Mahajan and Anr. (2010) 12 SCC 190, it was observed as under:-
“Abetment involves a mental process of
instigating a person or intentionally aiding a person in doing of a thing.
Without a positive act on the part of the accused to instigate or aid in
committing suicide, conviction cannot be sustained. The intention of the
legislature and the ratio of the cases decided by the Supreme Court is clear
that in order to convict a person under Section 306 IPC there has to be a clear
mens rea to commit the offence. It also requires an active act or direct act
which led the deceased to commit suicide seeing no option and that act must
have been intended to push the deceased into such a position that he committed
suicide.”
In a recent pronouncement,
the Supreme Court in the case of Arnab Manoranjan Goswami Vs. State of Maharashtra & Ors., (2021) 2 SCC 427 while considering the co-relation of Section 107 IPC with
Section 306 IPC has observed as under :-
“47. The above decision thus arose in a
situation where the High Court had declined to entertain a petition for
quashing an FIR under Section 482 of the 14 (2014) 4 SCC 453 PART I 33 CrPC.
However, it nonetheless directed the investigating agency not to arrest the
accused during the pendency of the investigation. This was held to be
impermissible by this Court. On the other hand, this Court clarified that the
High Court if it thinks fit, having regard to the parameters for quashing and
the self restraint imposed by law, has the jurisdiction to quash the
investigation ―and may pass appropriate interim orders as thought apposite in
law. Clearly therefore, the High Court in the present case has misdirected
itself in declining to enquire prima facie on a petition for quashing whether
the parameters in the exercise of that jurisdiction have been duly established
and if so whether a case for the grant of interim bail has been made out. The
settled principles which have been consistently reiterated since the judgment
of this Court in State of Haryana vs Bhajan Lal (Bhajan Lal) include a
situation where the allegations made in the FIR or the complaint, even if they
are taken at their face value and accepted in their entirety, do not prima
facie constitute any offence or make out a case against the accused. This legal
position was recently reiterated in a decision by a two-judge Bench of this
Court in Kamal Shivaji Pokarnekar vs State of Maharashtra.
48. The striking aspect of the impugned
judgment of the High Court spanning over
fifty-six pages is the absence of any evaluation even prima facie of the most
basic issue. The High Court, in other words, failed to apply its mind to a fundamental issue which needed to be
considered while dealing with a petition for quashing under Article 226 of the
Constitution or Section 482 of the CrPC. The High Court, by its judgment dated
9 November 2020, has instead allowed the petition for quashing to stand over
for hearing a month later, and therefore declined to allow the appellant‘s
prayer for interim bail and relegated him to the remedy under Section 439 of
the CrPC. In the meantime, liberty has been the casualty. The High Court having
failed to evaluate prima facie whether the allegations in the FIR, taken as
they stand, bring the case within the fold of Section 306 read with Section 34
of the IPC, this Court is now called upon to perform the task.”
In
the case of M. Arjunan Vs.
State, Represented by its Inspector of Police (2019) 3 SCC 315 , a two-Judge Bench of
Supreme Court has expounded the
ingredients of Section 306 IPC in the following words:-
“The essential ingredients of the offence
under Section 306 I.P.C. are: (i) the abetment; (ii) the intention of the
accused to aid or instigate or abet the deceased to commit suicide. The act of
the accused, however, insulting the deceased by using abusive language will
not, by itself, constitute the abetment of suicide. There should be evidence
capable of suggesting that the accused intended by such act to instigate the
deceased to commit suicide. Unless the ingredients of instigation/abetment to
commit suicide are satisfied, accused cannot be convicted under Section 306
I.P.C.”
In the case of Ude Singh & Ors. Vs. State of
Haryana(2019) 17 SCC 301, which elucidated on the essential ingredients of
the offence under Section 306 IPC in the following words:-
“16. In cases of alleged abetment of
suicide, there must be a proof of direct or indirect act/s of incitement to the
commission of suicide. It could hardly be disputed that the question of cause
of a suicide, particularly in the context of an offence of abetment of suicide,
remains a vexed one, involving multifaceted and complex attributes of human
behaviour and responses/reactions. In the case of accusation for abetment of
suicide, the Court would be looking for cogent and convincing proof of the
act/s of incitement to the commission of suicide. In the case of suicide, mere
allegation of harassment of the deceased by another person would not suffice
unless there be such action on the part of the accused which compels the person
to commit suicide; and such an offending action ought to be proximate to the
time of occurrence. Whether a person has abetted in the commission of suicide
by another or not, could only be gathered from the facts and circumstances of
each case.
16.1. For the purpose of finding out if a
person has abetted commission of suicide by another; the consideration would be
if the accused is guilty of the act of instigation of the act of suicide. As
explained and reiterated by this Court in the decisions above-referred,
instigation means to goad, urge forward, provoke, incite or encourage to do an
act. If the persons who committed suicide had been hypersensitive and the
action of accused is otherwise not ordinarily expected to induce a similarly
circumstanced person to commit suicide, it may not be safe to hold the accused
guilty of abetment of suicide. But, on the other hand, if the accused by his
acts and by his continuous course of conduct creates a situation which leads
the deceased perceiving no other option except to commit suicide, the case may
fall within the four-corners of Section 306 IPC. If the accused plays an active
role in tarnishing the self-esteem and self-respect of the victim, which
eventually draws the victim to commit suicide, the accused may be held guilty
of abetment of suicide. The question of mens rea on the part of the accused in
such cases would be examined with reference to the actual acts and deeds of the
accused and if the acts and deeds are only of such nature where the accused
intended nothing more than harassment or snap show of anger, a particular case
may fall short of the offence of abetment of suicide. However, if the accused
kept on irritating or annoying the deceased by words or deeds until the
deceased reacted or was provoked, a particular case may be that of abetment of
suicide. Such being the matter of delicate analysis of human behaviour, each
case is required to be examined on its own facts, while taking note of all the
surrounding factors having bearing on the actions and psyche of the accused and
the deceased.”
In the case of Narayan Malhari Thorat Vs. Vinayak
Deorao Bhagat and Anr.
(2019) 13 SCC 598 wherein the judgment
rendered by the High Court quashing the FIR under Section 482 was set aside. In
the said case, an FIR was registered under Section 306 IPC stating that the son
and daughter-in-law were teachers in a Zila Parishad School where the accused
was also a teacher used to make frequent calls on the mobile of the
daughter-in-law, and used to harass her. Despite the efforts of the son of the
informant in trying to make the accused see reason and stop calling, the
accused continued with his activity. On 09.02.2015, there was a verbal
altercation between the son of the informant and the accused and on 12.02.2015,
he committed suicide leaving a note stating that his family life has been
ruined by the accused who, should not be pardoned and should be hanged.
Under Section 482 Cr.PC, a
petition was filed by the accused challenging the FIR, which was allowed by the
High Court and thereafter, was challenged before Supreme Court. The appeal was
allowed by Supreme Court and made the following observations:-
“We now consider the facts of the present
case. There are definite allegations that the first respondent would keep on
calling the wife of the victim on her mobile and keep harassing her which
allegations are supported by the statements of the mother and the wife of the
victim recorded during investigation.
The record shows that 3-4 days prior to the suicide there was an altercation
between the victim and the first respondent. In the light of these facts,
coupled with the fact that the suicide note made definite allegation against
first respondent, the High Court was not justified in entering into question
whether the first respondent had the requisite intention to aid or instigate or
abate the commission of suicide. At this juncture when the investigation was
yet to be completed and charge-sheet, if any, was yet to be filed, the High
Court ought not to have gone into the aspect whether there was requisite mental
element or intention on part of the respondent.”
Thus, in a case where allegation of actively
facilitating suicide is there in F.I.R and also to the effect that continuous harassment
was meted out on the victim and such conduct was not rectified even after objected
by the victim, this will amount to facilitating the commission of suicide.
Therefore, in order to attract Section 306 of
Indian Penal Code there must be an allegation of either direct or indirect act
of incitement to the commission of offence of suicide and mere allegations of
harassment of the deceased by another person would not be sufficient in itself,
unless, there are allegations of such actions on the part of the accused which
compelled the commission of suicide. Further, if the person committing suicide
is hypersensitive and the allegations attributed to the accused is otherwise
not ordinarily expected to induce a similarly situated person to take the
extreme step of committing suicide, it would be unsafe to hold the accused
guilty of abetment of suicide. Thus, what is required is an examination of
every case on its own facts and circumstances and keeping in consideration the
surrounding circumstances as well, which may have bearing on the alleged action
of the accused and the psyche of the deceased.
The Supreme Court in the above backdrop, in the Geo verghese (Supra) had to test whether
the ingredients of offence under Section 306 IPC exist, even prima-facie, to continue with the investigations. The FIR
recites that victim boy was under deep mental pressure because the appellant
herein had harassed and insulted him in the presence of everyone and he was not
willing to go to school on 25.04.2018 but was persuaded to go to school by the
complainant. When he returned from the school, again he was under very much
pressure and on being enquired told that today again he was harassed and
insulted by the PTI Sir (the appellant). The boy was informed that the parents
have been called to school next day and this brought him under further severe
pressure and tension.
In the First Information Report and as also the
statement of the complainant recorded by the police, no reasons or cause for
the appellant to harass and insult the victim are spelled out nor there are any
details with respect to any action on the part of the appellant by which the
deceased boy might have felt being harassed and insulted.
As s a PT Teacher, the appellant was imparting
Physical Training to the students from 1st to 5th standard and being a member of the Disciplinary Committee, was
also charged with the duty of maintaining discipline in the school which
included keeping a watch upon students and oversee that they are attending the
classes instead of bunking the same and moving around in the school premises
without permission. It was also stated that the victim, a student of class 9,
generally used to bunk his classes and was warned by the appellant and other
school staff a number of times. On 19.04.2018, he was caught by the appellant
bunking classes and moving around the school campus without any cause or
permission and a warning was given to him. On 25.04.2018, he was caught bunking
classes and again the appellant issued him a warning and on account of
persistent act of bunking classes, reported the same to the Principal of the
School, who informed the parents of the boy to come to the school. It is a
solemn duty of a teacher to instill discipline in the students. It is not uncommon
that teachers reprimand a student for not being attentive or not being upto the
mark in studies or for bunking classes or not attending the school. The
disciplinary measures adopted by a teacher or other authorities of a school,
reprimanding a student for his indiscipline, in our considered opinion, would
not tantamount to provoking a student to commit suicide, unless there are
repeated specific allegations of harassment and insult deliberately without any
justifiable cause or reason. A simple act of reprimand of a student for his
behaviour or indiscipline by a teacher, who is under moral obligations to
inculcate the good qualities of a human being in a student would definitely not
amount to instigation or intentionally aid to the commission of a suicide by a
student.
A teacher or school authorities cannot remain
indifferent to any indiscipline act of a student. It is not only a moral duty
of a teacher but one of the legally assigned duty under Section 24 (e) of the
Right of Children to Free and Compulsory Education Act, 2009 to hold regular
meetings with the parents and guardians and apprise them about the regularity
in attendance, ability to learn, progress made in learning and any other act or
relevant information about the child.
No further overt act has been attributed to the
appellant either in the First Information Report or in the statement of the
complainant, nor anything in this regard has been stated in the alleged suicide
note. The alleged suicide note only records insofar as, the appellant is
concerned, ‘THANKS (PTI) OF MY SCHOOL’. Thus, even the suicide note does not
attribute any act or instigation on the part of the appellant to connect him
with the offence for which he is being charged.
It is observed by hon’ble Supreme Court that if,
a student is simply reprimanded by a teacher for an act of indiscipline and
bringing the continued act of indiscipline to the notice of Principal of the institution
who conveyed to the parents of the student for the purposes of school
discipline and correcting a child, any student who is very emotional or
sentimental commits suicide, can the said teacher be held liable for the same
and charged and tried for the offence of abetment of suicide under section 306
IPC. The answer is to be “No” as per Supreme Court.
Considering the facts that the appellant held a
post of a teacher and any act done in discharge of his moral or legal duty
without their being any circumstances to even remotely indicate that there was
any intention on his part to abet the commission of suicide by one of his own
pupil, no mens rea can be attributed. Thus, the very element of
abetment is conspicuously missing from the allegations levelled in the FIR. In
the absence of the element of abetment missing from the allegations, the
essential ingredients of offence under section 306 IPC do not exist. The
Supreme Court was thus pleased to quash the F.I.R. It is also held that every
high court has inherent power to act ex debito justitiae i.e to do real and substantial justice, or to prevent abuse of
the process of the Court. The powers being very wide in itself imposes a solemn
duty on the Courts, requiring great caution in its exercise. The Court must be
careful to see that its decision in exercise of this power is based on sound
principles. The inherent power vested in the Court should not be exercised to
stifle a legitimate prosecution. However, the inherent power or the
extra-ordinary power conferred upon the High Court entitles the said Court to
quash a proceeding, if it comes to the conclusion that allowing the proceeding
to continue would be an abuse of the process of the Court, or the ends of
justice require that the proceeding ought to be quashed.
In the case of State of Karnataka Vs. L. Muniswamy
& Ors(1977) 2 SCC 699 may be relevant to note at this stage:-
“The whole some power under Section 482
CrPC entitles the High Court to quash a proceeding when it comes to the
conclusion that allowing the proceeding to continue would be an abuse of the
process of the Court or that the ends of justice require that the proceeding
ought to be quashed The High Courts have been invested with inherent power,
both in civil and criminal matters, to achieve a salutary public purposes. A
Court proceeding ought not to be permitted to degenerate into a weapon of
harassment or persecution. The Court observed in this case that ends of justice
are higher than the ends of mere law though justice must be administered
according to laws made by the legislature.”
In Madhavrao Jiwajirao Scindia & Anr. Vs. Sambhajirao
Chandrojirao Angre & Ors. (1988) 1 SCC 692 , the Supreme Court observed in paragraph 7 as under :-
“7. The legal position is well-settled that when a prosecution at
the initial stage is asked to be quashed, the test to be applied by the court
is as to whether the uncontroverted allegations as made prima facie establish
the offence. It is also for the court to take into consideration any special
features which appear in a particular case to consider whether it is expedient
and in the interest of justice to permit a prosecution to continue. This is so
on the basis that the court cannot be utilised for any oblique purpose and
where in the opinion of the court chances of an ultimate conviction is bleak
and, therefore, no useful purpose is likely to be served by allowing a criminal
prosecution to continue, the court may while taking into consideration the
special facts of a case also quash the proceeding even though it may be at a
preliminary stage.”
In the case of M/s.Zandu Pharmaceutical Works Ltd.
& Ors. Vs. Mohd. Sharaful Haque & Anr. (2005) 1 SCC 122 the Supreme Court observed as under :-
“It would be an abuse of process of the
court to allow any action which would result in injustice and prevent promotion
of justice. In exercise of the powers court would be justified to quash any
proceeding if it finds that initiation/continuance of it amounts to abuse of
the process of court or quashing of these proceedings would otherwise serve the
ends of justice. When no offence is disclosed by the complaint, the court may
examine the question of fact. When a complaint is sought to be quashed, it is
permissible to look into the materials to assess what the complainant has
alleged and whether any offence is made out even if the allegations are
accepted in toto.”
The Supreme Court adverting
on the suicide note has observed that :
“Insofar as, the suicide note is concerned,
despite our minute examination of the same, all we can say is that suicide note
is rhetoric document, penned down by an immature mind. A reading of the same
also suggests the hypersensitive temperament of the deceased which led him to
take such an extraordinary step, as the alleged reprimand by the accused, who
was his teacher, otherwise would not ordinarily induce a similarly
circumstanced student to commit suicide.
In the absence of any material on record even, prima-facie, in the FIR or statement of the complainant,
pointing out any such circumstances showing any such act or intention that he
intended to bring about the suicide of his student, it would be absurd to even
think that the appellant had any intention to place the deceased in such
circumstances that there was no option available to him except to commit
suicide. In the absence of any specific allegation and material of definite
nature, not imaginary or inferential one, it would be travesty of justice, to
ask the appellant-accused to face the trial. A criminal trial is not exactly a
pleasant experience and the appellant who is a teacher would certainly suffer
great prejudice, if he has to face prosecution on absurd allegations of
irrelevant nature.
The F.I.R was thus quashed. Though, the Supreme
court had noted that the bench was conscious of the pain and suffering of the
complainant who is the Mother of the deceased boy. It is also very unfortunate
that a young life has been lost in this manner, but our sympathies and the pain
and suffering of the complainant, cannot translate into a legal remedy, much
less a criminal prosecution.
CONCLUSION
The High Courts have sweeping power u/s 482 of
Code of Criminal Procedure for securing the ends of justice and to prevent abuse
of process of courts. However, the said power is used with circumspection by
the high courts and the high courts are often self restraint. Though, the power
under section 482 of Cr.P.C is a guarantee to the ordinary citizen that in the
event as aforesaid, the high court may set right the agony or tyranny of such petitioners
who are roped in wrongfully and/or in malicious pursuit. It is not unusual to
find out that some cases are lodged to wreak vengeance and to unleash vendetta
and therefore in apt cases the high courts exercises power to redress the grievance
of individuals, who may have been framed or wrongly roped in an offence. The
Supreme Court, has power under Article 136 of Constitution of India and also as
per Article 142 of Constitution of India, Supreme Court has unbridled power and
the order of the Supreme Court shall be law of land. However, Supreme Court
being in the top of the echelon, onerous responsibility lies with high courts
to set right the wrong and to undo mala fide of a wily litigant.
-----------
Anil
k Khaware
Founder &
Senior Associate
Societylawandjustice.com
