The requirement of instigation and mens rea in abetment cases

1. BEING aggrieved by the order dated 5th August, 2009 passed by the learned Additional Sessions Judge, Fast Track Court No. 2, Asansol, District Burdwan, the petitioner has approached this Court for redressal of his grievance.

2. HEARD Mr. Singh, learned Counsel for the petitioner who submits that the materials in the case diary do not and cannot constitute any offence under section 306 of the Indian Penal Code. He submits the from the copies of the documents supplied to the petitioner/ accused person under section 207 of the Code of Criminal Procedure, it could be gathered there is no element so as to constitute abatement for commission of suicide. Mr. Singh has sought to derive support by referring to a number of decisions both of this Court as well as of the Apex Court.

Referring to the decision of a Single Bench in the case of Sandip Bhattacherjee vs. State of West Bengal and Ors., reported in 2008(1) C Cr. LR (Cal) 151, Mr. Singh submits that in the present case also, there is no meterial so as to suggest that there had been any instigation for commission of suicide.

3. MR. Singh, referring to the decision of the Apex Court, reported in 2005 SCC (Cri) 543 (Netai Dutta vs. State of West Bangal and Ors.), has submitted that proceedings under section 306 of Indian Penal Code without any factual foundation would only lead to sheer harassment to the accused without any fruitful result. In the said case the Apex court held that in such circumstances, it would be fit for the exercise of High Court's extraordinary jurisdiction under section 482 of the Code of Criminal Procedure and quash the criminal proceedings.

4. IN course of submission, Mr. Singh has further referred to a decision of the Apex Court in the case between Sanju @ Sanjay Singh Sengar vs. State of M.P., reported in 2002 SCC (Cri) 1141, There the Apex Court clearly observed that the word 'Instigate' denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. The Apex Court in the facts of the said case further observed that there must be presence of mens rea in such instigation.

Reference has also been made to the Apex Court decision in the case between Ramesh Kumar vs. State of Chhattisgarh. reported in 2001 Cr. LJ 4724. The relevant observation of the Apex Court in the case is ''Instigation is to goad, urge forward, provoke, incite or encourage to do 'an act'. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out."

5. REFERENCE has also been made to other Single Bench decisions of this Court as reported in 2009(1) C Cr. LR (Cal) 930 (Aloke Roy and Ors. vs. State of West Bengal and Anr.) and 2009 Cr. LJ 4678 (Anil Kumar Sarkar vs. State of West Bengal and Ors.).

6. MR. Singh further mentions that the post-mortem report would also not indicate that the victim could have committed suicide. He also invited attention of this Court to the statements recorded at the time of holding of inquest. Thus in support of his contention that the cause of death continues to be veiled in mystery, he adds that unless there is positive material to the satisfaction of the judicial conscience Court that there has been instigation that compelled the victim to commit suicide, question of any abatement for commission of suicide can hardly arise.

Mr. Roy, learned Counsel appearing on behalf of the opposite party No. 2/de facto complainant, submits that the complaint was lodged under a peculiar circumstance and the son of the deceased victim, namely the de facto complainant, subsequently took steps even for withdrawal of the case through the State administration. Mr-. Roy categorically submits that further proceedings of the case is not likely to yield any result except that it would cause further hara