The need for a clear mens rea and an active act to establish abetment under Section 306 IPC, and the consideration of trial delay due to the pandemic as a factor in granting bail.

JUDGMENT :

Vikas Bahl, J.

1. This is the first petition under Section 439 of Cr.P.C. for grant of regular bail in FIR No.26 dated 21.07.2021, under Section 306 IPC, at Police Station GRP Gurugram.

2. Learned counsel for the petitioner has submitted that petitioner is the 29 years old daughter-in-law of the deceased and has been falsely implicated in the present case. It is submitted that even a perusal of the alleged suicide note would show that no specific incident has been mentioned in the said suicide note that could implicate her in the present case and no overt act has been attributed to the petitioner. It is submitted that the version given in the FIR is beyond the allegations which have been made in the suicide note. It is further submitted that nothing is to be recovered from the petitioner and she is not involved in any other case. It is also stated that although, it is mentioned in the suicide note that the marriage had been performed between the petitioner and son of the deceased, six months prior to the date of the alleged suicide note and no complaint has ever been given against the petitioner by the deceased or by the complainant, alleging any kind of harassment. It is further submitted that the petitioner has been in custody since 02.08.2021 and there are 19 prosecution witnesses, but none of them have been examined and the trial is likely to take time, moreso, in view of the present pandemic and thus, the petitioner deserves the concession of regular bail.

3. Learned State counsel, on the other hand, has opposed the present petition for regular bail and has submitted that in the present petition, there is a suicide note written by the deceased, which held the present petitioner to be responsible for his commission of suicide.

4. This Court has heard the learned counsel for the parties and has perused the paper book.

5. The Hon'ble Supreme Court of India in Special Leave to Appeal (Crl.) No.7284 of 2017 titled as “Shabbir Hussain vs. The State of Madhya Pradesh & Ors.” decided on 26.07.2021 has held as under:-

“On 10.09.2014, due to certain matrimonial dispute, Roshan Bee, wife of deceased Firoz Khan moved to her parental home. On 22.09.2014, Firoz Khan committed suicide in his house by consuming poison and also left four suicide notes.

Shabbir Hussain, brother of the deceased - Firoz Khan, preferred complaint i.e. Crime No. 1403/2014, which was registered against respondent Nos.2 to 4 under Section 306/34 IPC. After investigation, chargesheet was filed against respondent Nos.2 to 4 and Trial commenced against respondent Nos.2 to 4. Respondent Nos.2 to 4 preferred Criminal Revision No.725/2016 under Section 397/401 Cr.P.C. before the High Court of Madhya Pradesh at Indore. The High Court allowed the Criminal Revision filed by respondent Nos.2 to 4, aggrieved by which, the petitioner has preferred this special leave petition.

Learned counsel for the petitioner submitted that the High Court committed an error in allowing the Criminal Revision, especially after 10 witnesses had already been examined. He referred to the suicide notes that were written by the deceased Firoz Khan, to support his submissions that Firoz was harassed by respondent Nos.2 to 4, due to which he took his own life. He argued that abetment of the offence of suicide by respondent Nos.2 to 4 is prima facie made out as the harassment by respondent Nos.2 to 4 facilitated the act of suicide by the deceased.

In order to bring a case within the provision of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigating or by doing a certain act to facilitate the commission of suicide.

Mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to an offence under Section 306 IPC [Amalendu Pal v. State of West Bengal (2010) 1