Kanchan Sharma vs The State Of Uttar Pradesh on 17 September, 2021


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Supreme Court of India

Kanchan Sharma vs The State Of Uttar Pradesh on 17 September, 2021

Author: R. Subhash Reddy

Bench: R. Subhash Reddy, Hrishikesh Roy

     [email protected](Crl.)No.7554 of 2019



                                                                               REPORTABLE

                                       IN THE SUPREME COURT OF INDIA

                                      CRIMINAL APPELLATE JURISDICTION

                                      CRIMINAL APPEAL NO. 1022 OF 2021
                                    [Arising out of S.L.P.(Crl.)No.7554 of 2019]


                      Kanchan Sharma                                         …..Appellant

                           Versus

                      State of Uttar Pradesh & Anr.                          …..Respondents



                                                 JUDGMENT

R. Subhash Reddy, J.

1. Leave granted.

2. This criminal appeal is filed by the applicant in Application

No.27662 of 2019, aggrieved by the order dated 18.07.2019 passed by

the High Court of Allahabad, dismissing her application filed under

Section 482 of Code of Criminal Procedure (Cr.PC).

Signature Not Verified

3. That on 11.05.2018, an FIR bearing Case Crime No.278/2018
Digitally signed by
Rajni Mukhi
Date: 2021.09.17
15:59:37 IST
Reason:

was registered at P.S. T.P. Nagar Police Station, District Meerut on the

complaint of Vijaydeep (complainant and brother of the deceased)

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under Sections 328, 302, IPC and 3(2)(v) of The Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short,

‘the Act’), alleging that his brother Vikas (deceased) was called by the

appellant – Kanchan Sharma on 04.05.2018 at her house. At that

point of time his brother was on duty at PVM Logistic Company and

on such call, he went to the house of the appellant, wherein the

appellant’s father, mother and sister met his brother and all of them

abused his brother with casteist abuses and forcefully administered

poison to him and consequently his brother became unconscious.

Complainant further stated that his brother was taken to hospital and

due to the negligence of the hospital, he died.

4. Initially FIR was registered for offences punishable under

Sections 328, 302 of IPC and Section 3(2)(v) of the Act against the

appellant, her brother and sister. After investigation, final report was

filed only against the appellant for the offence under Section 306 IPC

and Section 3(2)(v) of the Act. On filing such final report, cognizance

was taken against the appellant and on 21.02.2019 non­bailable

warrants were issued against the appellant. After filing of the final

report, case was registered against the appellant in Special Sessions

Trial No.23 of 2019 (State v. Kanchan Sharma) under Section 306 IPC

and Section 3(2)(v) of the Act, which is pending on the file of the

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Additional District & Sessions Judge / Special Judge, Scheduled

Castes & Scheduled Tribes (Prevention of Atrocities) Act, Meerut.

5. Appellant herein has approached the High Court for quashing

of cognizance order / NBW issued against her as well as the criminal

proceedings in Special Trial No.23 of 2019 pending on the file of the

Additional District & Sessions Judge / Special Judge, Scheduled

Castes & Scheduled Tribes (Prevention of Atrocities) Act, by way of

application under Section 482, Cr.PC for quashing the proceedings. It

was the case of the appellant before the High Court that no offence is

made out against the appellant to proceed for trial for the alleged

offence under Section 306, IPC and Section 3(2)(v) of the Act. The

High Court, by impugned order, has disposed of the petition mainly

on the ground that the disputed questions of fact cannot be

adjudicated at this stage under Section 482, Cr.PC.

6. We have heard Sri Sanchit Garga, learned counsel for the

appellant and Sri Aviral Saxena, learned counsel for the 1 st

respondent­State. Though the 2nd respondent­complainant is served,

there is no appearance on his behalf before this Court.

7. Sri Garga, learned counsel for the appellant has mainly

contended that there is absolutely no basis to proceed against the

appellant for alleged offence under Section 306, IPC and Section 3(2)

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(v) of the Act. It is submitted that except that the appellant was

harassed by the deceased by following her and proposing marriage

with him there is absolutely no basis to allege that the appellant has

abetted the suicide of the deceased. It is submitted that on the day of

incident, i.e., 04.05.2018 deceased came to the house of the appellant

and started shouting that he would marry the appellant and if her

marriage was not solemnized he would consume poison. Within no

time thereafter he consumed poison from a small bottle which he was

holding in his hand and fell unconscious and thereafter died in the

hospital. It is submitted that in absence of any of the ingredients of

Section 306/107, IPC, appellant cannot be subjected to trial for the

offence under Section 306, IPC and Section 3(2)(v) of the Act. It is

submitted that by considering the material as it is on record even the

offence under Section 3(2)(v) of the Act is not made out.

8. On the other hand, learned counsel for respondent no.1­State

has submitted that the deceased was maintaining relation with the

appellant. As she has refused to marry the deceased, deceased has

committed suicide by consuming poison. In view of the relation

maintained by her, it amounts to abetment for committing the suicide

by the deceased within the meaning of Section 306 of IPC. It is

further submitted that the appellant and other members of the family

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[email protected](Crl.)No.7554 of 2019

have abused the deceased by uttering casteist words, as such,

appellant is rightly sought to be prosecuted for the offence under

Section 3(2)(v) of the Act.

9. Having heard learned counsel on both sides, we have perused

the impugned order and other material placed on record. Except the

self­serving statements of the complainant and other witnesses stating

that deceased was in love with the appellant, there is no other

material to show that appellant was maintaining any relation with the

deceased. From the material placed on record it is clear that on the

date of incident on 04.05.2018 deceased went to the house of the

appellant and consumed poison by taking out from a small bottle

which he has carried in his pocket. Merely because he consumed

poison in front of the house of the appellant, that itself will not

indicate any relation of the appellant with the deceased. ‘Abetment’

involves mental process of instigating a person or intentionally aiding

a person in doing of a thing. Without positive act on the part of the

accused to instigate or aid in committing suicide, no one can be

convicted for offence under Section 306, IPC. To proceed against any

person for the offence under Section 306 IPC it requires an active act

or direct act which led the deceased to commit suicide, seeing no

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option and that act must have been intended to push the deceased

into such a position that he committed suicide. There is nothing on

record to show that appellant was maintaining relation with the

deceased and further there is absolutely no material to allege that

appellant abetted for suicide of the deceased within the meaning of

Section 306, IPC. Even with regard to offence alleged under Section

3(2)(v) of the Act it is to be noticed that except vague and bald

statement that the appellant and other family members abused

deceased by uttering casteist words but there is nothing on record to

show to attract any of the ingredients for the alleged offence also.

This Court in the case of Chitresh Kumar Chopra v. State (Govt. of

NCT of Delhi)1 had an occasion to deal with the aspect of abetment.

In the said case this Court has opined that there should be an

intention to provoke, incite or encourage the doing of an act by the

accused. Besides, the judgment also observed that each person’s

suicidability pattern is different from the other and each person has

his own idea of self­esteem and self­respect. In the said judgment it is

held that it is impossible to lay down any straightjacket formula

dealing with the cases of suicide and each case has to be decided on

the basis of its own facts and circumstances. In the case of

1 (2009) 16 SCC 605

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Amalendu Pal @ Jhantu v. State of West Bengal2 in order to bring a

case within the purview of Section 306, IPC this Court has held as

under :

“12. Thus, this Court has consistently taken the view that
before holding an accused guilty of an offence under Section
306
IPC, the court must scrupulously examine the facts and
circumstances of the case and also assess the evidence adduced
before it in order to find out whether the cruelty and
harassment meted out to the victim had left the victim with no
other alternative but to put an end to her life. It is also to be
borne in mind that in cases of alleged abetment of suicide there
must be proof of direct or indirect acts of incitement to the
commission of suicide. Merely on the allegation of harassment
without there being any positive action proximate to the time of
occurrence on the part of the accused which led or compelled
the person to commit suicide, conviction in terms of Section
306
IPC is not sustainable.

13. In order to bring a case within the purview 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 instigation or by doing certain act to facilitate the commission
of suicide. Therefore, the act of abetment by the person charged
with the said offence must be proved and established by the
prosecution before he could be convicted under Section 306
IPC.”

In the judgment in the case of S.S. Chheena v. Vijay Kumar Mahajan

& Anr.3 this Court reiterated the ingredients of offence of Section 306

IPC. Paragraph 25 of the judgment reads as under :

“25. Abetment involves a mental process of instigating a person or
intentionally aiding a person in doing of a thing. Without a positive

2 (2010) 1 SCC 707
3 (2010) 12 SCC 190

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

In the judgment in the case of Rajiv Thapar & Ors. v. Madan Lal

Kapur4 this Court has considered the scope of the provision under

Section 482, Cr.PC and has laid down the steps which should be

followed by the High Court to determine the veracity of a prayer for

quashing of proceedings in exercise of power under Section 482,

Cr.PC. Paragraph 30 containing the four steps read as under :

“30. Based on the factors canvassed in the foregoing paragraphs,
we would delineate the following steps to determine the veracity of a
prayer for quashment raised by an accused by invoking the power
vested in the High Court under Section 482 CrPC:

30.1.Step one: whether the material relied upon by the accused is
sound, reasonable, and indubitable i.e. the material is of sterling and
impeccable quality?

30.2.Step two: whether the material relied upon by the accused
would rule out the assertions contained in the charges levelled
against the accused i.e. the material is sufficient to reject and overrule
the factual assertions contained in the complaint i.e. the material is
such as would persuade a reasonable person to dismiss and condemn
the factual basis of the accusations as false?

30.3.Step three: whether the material relied upon by the accused
has not been refuted by the prosecution/complainant; and/or the

4 (2013) 3 SCC 330

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material is such that it cannot be justifiably refuted by the
prosecution/complainant?

30.4.Step four: whether proceeding with the trial would result in
an abuse of process of the court, and would not serve the ends of
justice?

30.5. If the answer to all the steps is in the affirmative, the judicial
conscience of the High Court should persuade it to quash such
criminal proceedings in exercise of power vested in it under Section
482
CrPC. Such exercise of power, besides doing justice to the
accused, would save precious court time, which would otherwise be
wasted in holding such a trial (as well as proceedings arising
therefrom) specially when it is clear that the same would not conclude
in the conviction of the accused.”

10. By applying the aforesaid ratio decided by this Court, we have

carefully scrutinized the material on record and examined the facts of

the case on hand. Except the statement that the deceased was in

relation with the appellant, there is no material at all to show that

appellant was maintaining any relation with the deceased. In fact, at

earlier point of time when the deceased was stalking the appellant, the

appellant along with her father went to the police station complained

about the calls which were being made by the deceased to the

appellant. Same is evident from the statement of S.I. Manoj Kumar

recorded on 05.07.2018. In his statement recorded he has clearly

deposed that the father along with the appellant went to the police

post and complained against the deceased who was continuously

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calling the appellant and proposing that she should marry him with a

threat that he will die otherwise. Having regard to such material

placed on record and in absence of any material within the meaning of

Section 107 of IPC, there is absolutely no basis to proceed against the

appellant for the alleged offence under Section 306 IPC and Section

3(2)(v) of the Act. It would be travesty of justice to compel the

appellant to face a criminal trial without any credible material

whatsoever.

11. In view of the same, we are of the view that the High Court

has committed error in rejecting the application filed by the appellant

by merely recording a finding that in view of the factual disputes same

cannot be decided in a petition under Section 482, Cr.PC.

12. For the aforesaid reasons, this appeal is allowed and Order

dated 18.07.2019 passed by the High Court of Allahabad in

Application No.27662 of 2019 is set aside. Consequently, the said

application stands allowed by quashing the order/NBW dated

21.02.2019 as well as proceedings of Special Trial No.23 of 2019

(State v. Kanchan Sharma) arising out of Crime No.0278 of 2018

under Section 306, IPC and 3(2)(v) of The Scheduled Castes and the

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Scheduled Tribes (Prevention of Atrocities) Act, 1989 pending in the

court of Additional District & Sessions Judge / Special Judge (SC &

ST Act), Meerut.

………………………………J.

[R. Subhash Reddy]

………………………………J.

[Hrishikesh Roy]

New Delhi.

September 17, 2021.

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