Bikash Agrawal State of Odisha … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 10518 of 2023 Bikash Agrawal State of Odisha ….. Vs. ….. Petitioner Mr. R.P. Kar, Senior Advocate Opp. Party Mr. B.K. Ragada, AGA CORAM: JUSTICE SAVITRI RATHO Order No. 04. ORDER 13.12.2023 (Through hybrid mode) 1. This application under Section 439 of Cr.P.C. has been filed in connection with Kantabanji P.S. Case No. 194 of 2023 corresponding to G.R. Case No. 294 of 2023 pending in the court of the learned J.M.F.C., Kantabanji registered under Section 363 of IPC against unknown persons. Chargesheet dated 03.11.2023 has been submitted against the petitioner and his brother Bishal Agrawal under Sections 365, 385, 305 and 34 of IPC, keeping the investigation open. 2. The prayer for bail of the petitioner has been rejected vide order dated 07.09.2023 passed by the learned Additional Sessions Judge, Kantabanji in BLAPL No. 118 of 2023. 3. The prosecution case in brief against the petitioner is that the niece of the petitioner, in order to increase her followers in her Page 1 of 8 Instagram account had taken huge amount of money from her house and paid it to the deceased and one Chandra Dangi. When this came to the knowledge of her father- Bishal Agrawal, he sent this petitioner who is his brother to call Chandra Dangi and the deceased to their house. After the two boys came to the house on 13.11.2023, they were confronted and when they admitted to have taken money, they were beaten. Their parents were called and in their presence, the two boys were asked to return the money. They gave undertakings to return the amount taken by them within a few days. The deceased was asked to return an amount of Rs.1,50,000/- and Chandra Dangi was asked to return Rs.3,00,000/-. On the next day, the deceased had his breakfast and left his house and when he did not return till evening, F.I.R. was lodged by his father in the Police Station and a case was registered under Section 363 of IPC against unknown persons. The body of the deceased was found on the railway track on 14.11.2023 and Titilagarh GRPS UD Case No. 28 of 2023 had been registered. Later from the photographs, the informant could identify the dead body to be his son for which the case under Section 363 of IPC turned to one under Sections 365, 385, 305 and 34 of IPC. The petitioner and the co-accused Bishal Page 2 of 8 Agrawal were arrested and forwarded under Sections 365, 385, 305 and 34 of IPC on 19.07.2023. After completion of investigation, chargesheet dated 03.11.2023 has been filed against the petitioner and co-accused Bishal Agrawal under Sections 365, 385, 305 and 34 of IPC, keeping the investigation open.
Legal Reasoning
4. Mr. R.P. Kar, learned Senior Advocate appearing on behalf of the petitioner submits that the petitioner is in custody since 19.07.2023 and even accepting the allegations on record to be true, a case under Sections 365, 385, 305 of IPC is not made out against him. It has been alleged that he brought the deceased and Chandra Dangi to their house where his brother co-accused Bishal Agrawal asked them to return the money they had taken from the daughter of the brother of the petitioner and they were beaten. But the petitioner could never have anticipated that this would drive the deceased to commit suicide. Since the co-accused wanted return of his money, it could never have been their intention to instigate the deceased to commit suicide. Referring to the decision of the Hon’ble Apex Court dated 01.12.2023 in Criminal Appeal No. 3578 of 2023: 2023 INSC 1035 in the case of Mohit Singhal and Another vrs. The State of Uttarakhand and Others, he reiterates that a case under Page 3 of 8 Section 305 of IPC is not made out as the petitioner had no mens rea nor had he instigated the deceased to commit suicide. 5. Mr. B.K. Ragada, learned Additional Government Advocate opposes the prayer for bail stating that the petitioner has taken the deceased to the house of his brother where the deceased was beaten, threatened and made to sign an undertaking to return the money. As he was not in a position to return the money, he has committed suicide. The deceased and his brother having threatened and compelled the deceased to sign an undertaking, the offences under Sections 365, 385, 305 of IPC are squarely made out against them. 6. The provision of Sections 107 and 305 of the IPC are extracted below: “Section 107: 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. Page 4 of 8 Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act. Section 305- Abetment of suicide of child or insane person.—If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or 1[imprisonment for life], or imprisonment for a term not exceeding ten years, and shall also be liable to fine.” Page 5 of 8 7. In the case of Mohit Singhal (Supra), the deceased had left behind a suicide note where he had stated that the accuysed had made his life hell, the Supreme Court had held as follows: “9. In the facts of the case, secondly and thirdly in Section 107, will have no application. Hence, the question is whether the appellants instigated the deceased to commit suicide. To attract the first clause, there must be instigation in some form on the part of the accused to cause the deceased to commit suicide. Hence, the accused must have mens rea to instigate the deceased to commit suicide. The act of instigation must be of such intensity that it is intended to push the deceased to such a position under which he or she has no choice but to commit suicide. Such instigation must be in close proximity to the act of committing suicide. 10. In the present case, taking the complaint of the third respondent and the contents of the suicide note as correct, it is impossible to conclude that the appellants instigated the deceased to commit suicide by demanding the payment of the amount borrowed by the third respondent from her husband by using abusive language and by assaulting him by a belt for that Page 6 of 8 purpose. The said incident allegedly happened more than two weeks before the date of suicide. There is no allegation that any act was done by the appellants in the close proximity to the date of suicide. By no stretch of the imagination, the alleged acts of the appellants can amount to instigation to commit suicide. The deceased has blamed the third respondent for landing in trouble due to her bad habits.” 8. Considering the nature of materials collected against the petitioner, the background of the occurrence (that the deceased and his friend had taken a huge amount of money from the niece of the petitioner to purportedly increase her followers in her Instagram ID for which they were threatened and made to sign an undertaking to return the money), the ingredients of Section 107 and 305 of the IPC and the decision of the Supreme Court, there is absence of mens rea as well as instigation by the petitioner. As investigation in the case is over, I consider this to be a fit case to release the petitioner on bail. 9. The petitioner- Bikash Agrawal shall be released on bail on such terms and conditions as may be fixed by the learned Court below in seisin over the matter. Page 7 of 8
Decision
10. The BLAPL is accordingly disposed of. 11. No observation in this order should influence the learned trial court during trial, as they have been made for the purpose of consideration of the prayer for bail. 12. Urgent certified copy of this order be granted on proper application. puspa (Savitri Ratho) Judge Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 15-Dec-2023 19:42:40 Page 8 of 8