ORDER :

This present revision petition is filed against the order dated 7-9-2022 passed by ASJ, Tarana District Ujjain in ST No. 40/2021, whereby, the charge of section 306 of the IPC has been framed against the applicant.

2. As per the prosecution case, the deceased committed suicide because of the harassment caused by the applicant for demanding the loan amount and excess interest on the same.

3. Learned counsel for the respondent/state opposed the prayer and submits that there is a suicide note left by the deceased. After perusal of the suicide note, it is noted that there is allegation that the deceased had taken loan from the applicant and he was demanding loan amount and interest.

4. It is alleged that he was being harassed by the applicant by demanding the excess interest on the same.

5. Learned counsel for the applicant submits that there is no basic ingredient of section 107 of IPC to constitute the offence under section 306 of IPC.

6. The Apex Court in the case of Chitresh Kumar Chopra vs. State of (Govt of NCT of Delhi), reported in 2009 (16) SCC 605, Shabbir Hussain vs. State of M. P. in SLP (Cri) No. 7284/2017, Amalendu Pal vs. State of West Bangal , reported in (2010) 1 SCC 707, Rajesh vs. State of M. P. in CRR No. 3155/2011 decided on 9-7-2019 , held that there is no evidence regarding instigation which is one of the most important ingredient under section 107 of the IPC to constitute the offence under section 306 of IPC and set aside the charge under section 306 of the IPC.

7. Section 107 of the IPC makes it obligatory for the prosecution to show and establish the elements of instigation. The Apex Court in the case of Sanju @ Sanjay Singh Sengar vs. State of M.P. , AIR 2002 SC 1998 has opined as under :—

8. Even if we accept the prosecution story that the appellant did tell the deceased to go and die, that itself does not constitute the ingredient of instigation the word instigate denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea it is in a fit of anger and emotion.

8. In the case of Sanju @ Sanjay (supra) the accused allegedly told the deceased “to go and die” yet Apex Court opined that it does not constitute the ingredient of “instigation”. In the instant case, if story of the prosecution is read and believed as such, it would be clear that the appellants did not in any manner instigate the deceased to commit suicide. There is no element of “incitement” or “instigation” on their behalf. Thus, section 306 of the IPC is not attracted against the appellants.

9. The ancillary question is whether their acts fall within the ambit of section 306 of the IPC. In Gangula Mohan Reddy vs. State of Andhra Pradesh , (2010) 1 SCC 750 , the Apex Court opined as under :—

17. 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 this 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 this act must have been intended to push the deceased into such a position that he committed suicide.

10. The principle flowing from this judgment is that the overt act of accused pers