ORDER

1. This petition under Section 482 of the Code of Criminal Procedure, 1973 has been preferred by the petitioner/accused for quashment of FIR No.921/2020 for the offence punishable under Section 306/34 of the IPC at Police station Chandan Nagar, District Indore and the final report filed in connection with the said FIR.

2. As per the prosecution, on 27.06.2020 deceased namely; Gopal Mandhania committed suicide by hanging himself. On his death. a merg was registered and investigation was commenced during the course of which a suicide note in handwriting of the deceased was recovered. The statements of various witnesses were also recorded. From the aforesaid, it transpired that the deceased had got the other co-accused to pay some amount to the petitioner through him and he was liable to pay that amount on that account and the petitioner was not returning the said amount to the other co-accused on account of which the deceased felt harassed. On account of harassment having been meted out to him by petitioner as aforesaid, the deceased eventually committed suicide. On completion of the investigation, the charge sheet has been filed by the Police before the Court concerned.

3. Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been implicated in the case. The entire allegations as leveled against the petitioner even if taken to be true at his face value do not amount to an offence punishable under Section 306/34 of the IPC. There is no allegation against the petitioner of either instigating or abetting the deceased in any manner to commit suicide and it cannot be said that due to acts of the petitioner the deceased had no other option but to commit suicide. He had various other legal remedies available to him.

4. The act alleged against the petitioner is only to the effect that he had taken some amount at the behest of the deceased from a third person and was not returning that amount to him due to which he felt harassed. The same cannot in any manner be said to be abetment or instigation or even a remote cause for the deceased to commit suicide. It is hence submitted that the FIR registered against the petitioner be quashed.

5. Per contra, learned counsel for the respondents/State has submitted that there is sufficient material available on record to proceed against the petitioner and it cannot be said that no offence whatsoever is made out in view of which the petition deserves to be dismissed.

6. I have heard the parties at length and have perused the record.

7. Section 107 of IPC makes it obligatory for the prosecution to show and establish the element of instigation. The Apex Court in the case of Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh (AIR 2002 SC 1998), has opined as under :- 13. ... 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.”

13.

8. In the case of Sanju (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 prosecution is read and believed as such, it will be clear that the petitioner had taken loan from a third person at the behest of the deceased who was pressurizing the deceased for return of the amount and the petitioner was not returning the amount due to which he was harassed.

9. The ancillary question is whether his acts fall within the ambit of Section 306 of the IPC. In Gangula