Bishal Agrawal State of Odisha … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 12225 of 2023 Bishal Agrawal State of Odisha ….. Vs. ….. Petitioner Mr. Devashis Panda, Advocate Opp. Party Mr. S.S. Mohapatra, A.S.C. CORAM: JUSTICE SAVITRI RATHO Order No. 05. ORDER 11.01.2024 (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 and it relates to an unfortunate incident where the deceased - a young boy aged about 16 years allegedly committed suicide on the railway tracks. 2. On 13.07.2023, the deceased has left his house after having
Legal Reasoning
breakfast and did not return. FIR had been lodged on 14.07.2023 by his father and a case under Section 363 IPC had been registered against unknown persons. An unknown dead body was found on the railways tracks in the morning on 13.07.2023 and Titilagarh GRPS UD Case No. 28 of 2023 was registered. From the photographs, the informant Page 1 of 9 identified the dead body of the deceased to be of his son. So Kantabanji P.S. Case No. 194 of 2023 turned to one under Sections 365, 385, 305 and 34 of IPC.
Legal Reasoning
3. Heard Mr. Devashis Panda, learned counsel for the petitioner and Mr. S.S. Mohapatra, learned Addl. Standing Counsel for the State. 4. The prosecution case in brief against the petitioner is that the daughter of the petitioner, in order to increase her followers in her Instagram account had taken a large sum of money from her house and paid it to the deceased and another boy. When this came to the knowledge of the petitioner, he sent his brother co – accused Bikash Agarwal to call the two boys to their house. After the two boys came to the house on 13.07.2023, they were confronted and when they admitted to have taken money, they were beaten. Thereafter their parents were called and in their presence, the two boys were asked to return the money. The boys 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 the other boy 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 the IPC against unknown persons. After the case turned to one Page 2 of 9 under Sections 365, 385, 305 and 34 of the IPC , the petitioner and the co-accused Bishal 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. It has been stated by the learned counsel for the petitioner that the case has been committed and is now pending in the Court of the learned Addl. Sessions Judge, Kantabanji in S.C. Case No. 72 of 2023. 5. Mr. Devashis Panda, learned counsel for the petitioner submits that the petitioner is in custody since 19.07.2023 and he had been released on interim bail by this Court by order dated 16.11.2023 passed in I.A. No. 1407 of 2023 for a period of five weeks to undergo treatment at Visakhapatnam for a kidney ailment and he has complied with the said order and surrendered on 02.01.2024 in the learned Court below after expiry of the period of interim bail and is presently in custody. He also submits that the prosecution allegations are that the petitioner had threatened the deceased and his friend asking them to return the money taken from his daughter and made them sign an undertaking to do so had also beaten them while doing so. Even if the prosecution allegations are accepted, they reveals that the deceased and Page 3 of 9 his friend as well as their parents had also been called and in the presence of their parents, the deceased and his friend had been asked to return the money. Even accepting the allegations to be true, it can never be accepted that the petitioner instigated the deceased to commit suicide nor had he intended that the deceased should commit suicide. It can also not be believed that the deceased would commit suicide on being asked to return the money and sign the undertaking to return the money as his friend had also been asked to return the money and sign the undertaking. He further submits that the co-accused Bikash Agrawal who is the brother of the petitioner against whom similar allegation has been made and his prayer for bail has been allowed by order dated 13.12.2023 passed in BLAPL No. 10518 of 2023. 6. Mr. S.S.Mohapatra, learned Addl. Standing Counsel for the State opposes the prayer for bail stating that an account of the harsh treatment meted out the deceased by the petitioner and his brother, the deceased who is a young boy could not withstand the pressure and the threats and has committed suicide. The deceased was agreeable to return Rs.40,000/- but the petitioner insisted that an amount of Rs.3,00,000/- should be returned and made him sign an undertaking, for which he committed suicide. As the threats and demand of the petitioner were the reason the deceased committed suicide, the Page 4 of 9 petitioner does not deserve to be granted bail. He further submits that as the investigation has kept open, if the petitioner is released on bail the possibility of the petitioner tampering with the evidence cannot be ruled out. 7. 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. 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 Page 5 of 9 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 imprisonment for life , or imprisonment for a term not exceeding ten years, and shall also be liable to fine.” 8. In the case of Mohit Singhal and Another vrs. The State of Uttarakhand and Others: 2023 INSC 1035, the Supreme Court has 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.”. Page 6 of 9 In the case of Ramesh Kumar v. State of Chhattisgarh : (2001) 9 SCC 618 , the Supreme Court held that where the accused had, by his acts or omissions or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, an instigation may have to be inferred . Direct evidence with regard to instigation having a direct nexus to the suicide may not be available for which , instigation has to be gathered from the circumstances of the case. The circumstances may be such that a person feels totally frustrated and does not want to live and therefore takes this extreme step . 9. There are three clauses in Section 107. The first clause relates to instigating a person to do a thing ; the second clause relates to a conspiracy pursuant of which an act or illegal omission takes place in order to do that thing ; the third clause deals with mens rea and provides that intentionally by an act or illegal omission , the doing of a thing is aided . 10. From a careful reading of the two provisions, it is apparent that mens rea on the part of the accused to commit offence must be established. There also has to be some direct act which leads deceased to commit suicide finding no other option and the act of the accused Page 7 of 9 must be reflecting the intention of the accused to compel the deceased into such a position that he commits suicide and must be proximate to the act . The act of instigation must be of such intensity that it is intended to push the deceased to such a position that he / she has no choice but to commit suicide . 11. It is a tragic incident resulting in loss of life of the deceased who is a young boy. The background circumstances are 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 I.D. for which they were threatened and made to sign an undertaking to return the money by the petitioner and co- accused. The deceased without letting anybody know the reason, has apparently committed suicide. Considering the nature of materials collected so far, for the purpose of considering the prayer for bail , I am satisfied that none of the ingredients of Section 107 of the IPC are prima facie satisfied , so as to make out a case under Section – 305 I.P.C against the petitioner .The case has been committed in the meanwhile . I am therefore inclined to allow the prayer for bail of the petitioner 12. The petitioner- Bishal Agrawal shall be released on bail on such terms and conditions as may be fixed by the learned Court below Page 8 of 9 in seisin over the matter, including the following conditions : i) He shall not try to influence prosecution witnesses or tamper with evidence . ii) He shall not leave the jurisdiction of the trial Court without permission of the trial Court once trial starts .
Decision
13. The BLAPL is accordingly disposed of. 14. The observations in this order have been made for the purpose of consideration of the prayer for bail and should not influence the learned trial court. 15. Urgent certified copy of this order be granted on proper application. Sukanta (Savitri Ratho) Judge Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court Date: 21-Jan-2024 16:38:21 Page 9 of 9