The necessity of active instigation or aiding in committing suicide, mens rea, and a direct act intended to push the deceased into committing suicide for conviction under Section 306 IPC.

JUDGMENT

Vikas Bahl, J. (Oral) - This is a first bail application under Section 439 Cr.P.C. for grant of regular bail to the petitioner in FIR No.216 dated 27.11.2021, registered under Sections 306 and 34 IPC (Section 205 IPC has been added later on), at Police Station Nihal Singh Wala, District Moga.

2. Learned counsel for the petitioner has submitted that in the present case, as per the allegations in the FIR, petitioner was annoyed with the complainant on account of the fact that the petitioner was under the impression that the complainant/deceased was helping his wife Raman Kaur in staying away from the petitioner and on account of the same, petitioner used to threaten the deceased. It is submitted that the said act of the petitioner done by him for protecting his marriage, cannot be stated to be a criminal act. It is further submitted that the petitioner has been in custody since 28.11.2021 and the challan has already been presented and there are 26 prosecution witnesses, none of whom have been examined, thus, the trial is likely to take time. It is also submitted that the petitioner is the sole breadwinner of the family and has three minor children, including one minor daughter. It is submitted the petitioner is not involved in any other case. Further, reliance has been placed upon a judgment of 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 SCC 707].

Abetment by a person is when a person instigates another to do something. Instigation can be inferred where the accused had, by his acts or omission created such circumstances that the deceased was left with no option except to commit suicide. [Chitresh Kumar Chopra v. State (Government of NCT of Delhi)(2009) 16 SCC 605].

In the instant case, the allegations against Respondent Nos. 2 and 4 is that they harassed the deceased. There is no other material on record which indicates abetment. The High court did not commit any error i