Kanwaljit Singh Ahluwalia, J.
1. The present petitioners have invoked the inherent jurisdiction of this Court; seeking quashing of case FIR No. 70 dated 20.11.2006 registered at Police Station Dhilwan, District Kapurthala, under Section 306 IPC. The said FIR which has been annexed with the present petition as Annexure P-1 has been instituted at the instance of one Gurbax Kaur wife of Joginder Singh (deceased). A perusal of the FIR reveals that one Mohan Singh Lambardar along with Malkiat Singh and present petitioners had borrowed a sum of Rs. 15,00,000/- from Joginder Singh, husband of the complainant. It has been further alleged that the said amount was demanded by Joginder Singh on various occasions but Mohan Singh and others kept dilly-dallying. It has been further entailed in the FIR that a day prior to his death Joginder Singh had gone to the house of Mohan Singh and Malkiat Singh for taking back his money who instead of returning the money insulted the complaint and pushed him out of their house. The said fact was disclosed to the complaint who was abroad by her husband on phone. It has also been alleged that daughter-in-law of the complainant recovered a written note from the pocket of her husband in which the deceased has stated that he has committed suicide because Mohan Singh and others including the present petitioner have not returned his money.
2. The sole question of law which arises in the present petition is that even if the version which has been put forth by the complaint in, the FIR is taken to be correct, whether the same will disclose the commission of any offence. It has been vehemently urged by the learned Counsel for the petitioners that the allegation entailed in the FIR do not spell out the necessary ingredients for the commission of an offence under Section 306 IPC which provides punishment for abetment to suicide. As abetment has been defined under Section 107 IPC, the question as to whether any abetment is made out or not will necessarily require reference to the said provision. For this reason, it would be apposite here to reproduce Section 107 of IPC which reads as under:
Abetment of a thing: A person abets the doing of a thing, who:
First - Instigates any person to do that thing; or
Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing.
3. Learned Counsel for the state has very fairly stated that the case of the prosecution is not covered by the second or third part of Section 107 of IPC, since as per the FIR or other material there is not an iota of evidence to suggest that the present petitioners have intentionally aided or engaged with any person in any conspiracy. However, he has strenuously argued that the case of the prosecution is squarely covered by first limb of Section 107 of IPC which pertains to instigation as the present petitioners along with Mohan Singh and Malkiat Singh have clearly instigated the deceased to commit suicide, since despite various attempts made by the deceased they refused to pay him his money. This leads to the question as to what is meant by instigation which would constitute abetment for the purposes of Section 306 of IPC. It has been well settled by a catena of decisions that instigation means to goad, urge, provoke, incite or encourage someone to do an act. A coordinate bench of this Court in the case of Vikram Singh v. State of Haryana 2003 (2) R.C.R. (Criminal) 805 observed as under:
The word 'instigate' literally means to goad, urge forward, provoke, incite, or encourage to do an act. A person is said to instigate another when he actively suggests or stimulates him to the act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. To constitute instigation it is not necessary that express words should be used to indicate what should be done by the person to whom the directions are given. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is actually done by the person whom he abets.
4. It would be pertinent to mention here that the aforesaid decision of this Court was approved and upheld by the Supreme Court in Surender v. State of Haryana 2007 (1) R.C.R. (Criminal) 288. The meaning, scope and ambit of instigation was also discussed by the Supreme Court in the case of Sanju @ Sanjay Singh Sengar v. State of Madhya Pradesh, wherein the court was pleased to observe as under:
A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences, were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty.
5. From the aforesaid, the principle of law which can be culled out is that instigation for the purposes of abetment would be made out when the deceased is provoked or incited to commit suicide by words or action of the accused. However, the touchstone to determine whether acts or action constitute abetment by instigation would be whether such acts or action would induce a similarly circumstanced individual in a given society to which the deceased belong to commit suicide. For this reason the courts on various occasions when similar allegations have been made as mentioned in the FIR above have come to the conclusion that offence of abetment for the purpose of Section 306 is not made out. Reference can be made to the case of Ajay Patodia v. State of M.P. 2004 Cri.LJ. 197 where the accused was to pay Rs. 16,75,000 to the deceased but the same was not paid despite repeated demands. It was held by the court that offence under Section 306 is not made out for the following reasons:
In the present case, from perusal of the allegations made against the present applicant, at the most it can be said that the intention of the present application was neither to pay the amount due to the deceased nor that he should commit suicide. This Court in the case of Vedprakash Bhaiji v. State of M.P. 1995 Cri.L.J. 893 has held that the accused persons were intimated by the deceased that if they do not repay the loan advanced to them, then they will have to face dire consequences and immediately thereafter he committed suicide. This Court has held that it could not be said that the accused persons provoked, incited, urged or encouraged the deceased to commit suicide. A person is said to 'instigate' another to an act when he actively suggests or stimulates him to the act by any means of language, direct or indirect for commission of the offence. In the present case, there is no averment to that effect. This Court in the case of Sultan Singh and Ors. v. State of Madhya Pradesh, in Criminal Revision No. 441/2002 has also taken a similar view and held that the ingredients of abetment as defined in Section 107 of Indian Penal Code requires that knowledge and intention of the accused persons is necessary to hold the accused persons guilty of committing offence under Section 306, Indian Penal Code.
Similarly, in the case of Vishnu Prasad v. State of M.P. 2005 (3) R.C.R. (Criminal) 777 it was held as under:
When present case is examined in view of the abovesaid background then certainly not a single ingredients of the offence is made out on the basis of entire papers of the charge-sheet. For the sake of argument if story of prosecution is 'died as it is then it speaks that there was some loan transaction in between the Chintu @ Vivek and deceased and also in between the deceased and present applicant and there was a regular demand of repayment of loan amount and even an altercation took place in between the accused and the deceased and the loan was not repaid by the applicant to the deceased then deceased was having only cause of action to recover this amount through prescribed procedure of law, but it does not mean that if the payment has not been made and some altercation took place in between them and deceased committed suicide only on the ground of non-payment of loan amount. It appears that incident took place because of breach of contract in between them but it does not give any indication in respect of criminal offence and in the totality of the facts and circumstances and scenario of case does not reflect any circumstances in which the alleged charges could have been framed and can be sustained.
Similar question was decided in the case of Ram Naresh v. State of M.P. 2002 (3) R.C.R. (Criminal) 52 and for that reason it would be imperative to reproduce the relevant part of the said case:
2. The prosecution case in short was that the deceased Narayan s/o Babulal Manguloi had taken loan from the applicants and non-applicants No. 2 and 3. These loans were raised by him at different point of time from the accused persons. Thereafter he failed to repay the same as per the terms and conditions because of which the applicants were demanding the said loan with interest and torturing the deceased Narayan. It is further alleged by the prosecution that the applicants Ram Naresh and Devendra were visiting his house again and again and degraded him by demanding money with interest. All the accused persons were delivering threat to him for payment of money and if the same will not be paid he will have to vacate the house. The applicants had also threatened for throwing the assets and house belongings on the road. Because of persistent demand by the applicants and accused persons one day under frustration the deceased Narayan committed suicide.
3. The trial Court on the aforesaid facts framed charges against the applicants under Section 306 read with Section 34, Indian Penal Code. The contention of the learned Counsel for the applicants is that even if the complete prosecution case is accepted as it is, there are no elements present for making out the prima facie case worth punishable under Section 306 read with Section 34, Indian Penal Code because the applicants were demanding their money and by that they did not intend to abet for commission of suicide of the deceased Narayan because he was not able to pay loan and because of that he might have committed suicide that may be the reason for suicide but the same reason cannot be construed as abetment to commit suicide. He further submits that the abetment is defined under Section 107, India Penal Code and none of the ingredients are present in the complete charge sheet therefore the trial is none but an abuse of process of Court of law, hence in the interest of justice, this Court may set aside the order of framing charge and quash the whole proceedings.
In this case the ratio laid down in the case of Vedprakash Bhaiji v. State of M.P. was followed and the submissions of the Counsel for the applicant were accepted and the proceedings were quashed.
6. The facts of the present case are on similar footing as those of the decisions referred above. Mere refusal to return the money cannot be said to constitute abetment by instigation.
7. Another striking feature of the present case which prompts me to exercise the inherent power to quash the FIR is that no post-mortem has been conducted. Mr. Mehardeep Singh, learned Assistant Advocate General on instructions from ASI Goldy Virdi has fairly stated that no post-mortem took place. In the absence of any post-mortem report the cause of death cannot be ascertained and there is no material whatsoever to indicate that the deceased died an unnatural death. In fact the complainant in the FIR has also stated that the deceased suffered an attack. The present petitioners cannot be prosecuted for the offence of abetment to suicide when there is no evidence to suggest that the deceased had committed suicide.
8. For the aforesaid reasons, the present petition is allowed and the FIR along with all subsequent proceedings is quashed qua the present petitions.