Charge Of Abetment Set Aside For Want Of Evidence | No Instigation Or Active Role Made Out Under Section 306 IPC : Kerala High Court
Sanchayita Lahkar
The High Court of Kerala Single Bench of Justice Dr. Kauser Edappagath held that the trial court’s addition of a charge under Section 306 of the Indian Penal Code (IPC) lacked legal sustainability and was not supported by evidence. The Court ruled that the trial court erred in invoking Section 216 of the Criminal Procedure Code (CrPC) to add the charge of abetment to suicide against the accused. The High Court set aside the impugned order issued by the trial court and allowed the criminal miscellaneous petition filed by the accused. As a result, the addition of the Section 306 IPC charge was invalidated and the proceedings continued only under Section 498A IPC.
The petitioner, a 42-year-old male, was the sole accused in a criminal case pending before the Judicial First-Class Magistrate Court-II, Kannur. He faced charges under Section 498A IPC, which pertains to cruelty by a husband or his relatives. The case arose from a complaint filed by his mother-in-law, following the death of the petitioner’s wife, who committed suicide by jumping into a well on 3 November 2005, shortly after her marriage to the petitioner on 14 August 2005.
The de facto complainant alleged in her complaint (Annexure A1) that the petitioner, his brother, and his friends subjected her daughter to cruelty and instigated her to commit suicide. The complaint was forwarded by the trial court to the police, who registered a First Information Report and conducted an investigation. Upon completion of the investigation, the police filed a final report charging only the petitioner under Section 498A IPC. The charges under Section 306 IPC were excluded in the final report.
After the charge under Section 498A was framed and the petitioner pleaded not guilty, the prosecution examined 11 witnesses. Subsequently, the Assistant Public Prosecutor filed an application under Section 216 CrPC (C.M.P. No. 1175/2014) seeking to add Section 306 IPC to the existing charge. The trial court accepted this plea and passed an order adding the charge of abetment to suicide, citing materials brought on record through prosecution witnesses PW1 to PW3 and other documents.
Challenging this order, the petitioner filed a criminal miscellaneous case under Section 482 CrPC, contending that the trial court lacked justification to alter the charge. It was submitted that no material existed to attract the offence under Section 306 IPC and that the addition of the charge was unlawful. The petitioner also argued that the trial court had improperly entertained the application filed by the Public Prosecutor.
The Public Prosecutor defended the trial court’s decision, arguing that the initial police case had included both Sections 498A and 306 IPC and that the deletion of Section 306 in the final report lacked adequate reasoning. It was asserted that evidence recorded from the victim’s family members (PWs 1 to 3) supported the addition of the Section 306 charge and that the court was empowered to act under Section 216 CrPC.
The High Court considered the legality of the trial court’s order, the evidence submitted during trial, the procedural framework under Section 216 CrPC, and relevant Supreme Court precedents to assess whether the addition of the Section 306 charge was justified.
The Court stated: “Section 216 of Cr.P.C (Section 239 of BNSS) confers jurisdiction on all courts to alter or add to any charge framed earlier, at any time before the judgment is pronounced.”
It further recorded: “Sub-sections 2 to 5 of Section 216 of Cr.P.C prescribe the procedure which has to be followed after that addition or alteration.”
The Court observed: “The Supreme Court in P. Kartikalakshmi v. Sri Ganesh and another [(2017) 3 SCC 347] has held that the power vested under Section 216(1) is exclusive to the court and there is no right in any party to seek for addition or alteration of charge by filing any application.”
It then noted: “However, a subsequent decision of a co-equal bench of the Supreme Court [Anant Prakash Sinha @ Anant Sinha v. State of Haryana, (2016) 6 SCC 105] took the view that even any informant/victim can seek alteration or addition of charge invoking Section 216(1) of Cr.P.C.”
Addressing the factual matrix, the Court recorded: “PW1 is the mother, PW2 is the brother, and PW3 is the father of the victim. All of them gave evidence that accused No.3 in Annexure A1 complaint came to the house of the deceased, handed over a draft divorce agreement to PW2, who, in turn, handed it over to the deceased, who, after reading it, became upset and committed suicide three days thereafter.”
The Court stated: “The trial court found in the impugned order that the averments in paragraph 5 of Annexure A1 and the evidence let in by PWs 1 to 3 mentioned above are sufficient to show that there was abetment of committing suicide by the petitioner. I cannot subscribe to the said finding.”
On the requirements of Section 306 IPC, the Court held: “To constitute an offence of abetment of suicide under Section 306 IPC, there must be proof of either instigation or conspiracy or intentionally aiding or direct or indirect act of incitement to the commission of the offence of suicide.”
It noted: “A mere allegation of humiliation, harassment or threat unaccompanied by any incitement or instigation is not at all sufficient to attract the offence.”
Finally, the Court recorded: “There is no averment in Annexure A1 complaint or in the evidence of PWs 1 to 3 that by handing over the Annexure A2 draft agreement for divorce, there was any instigation or intentional aiding or direct or indirect act of incitement to the commission of the offence of suicide by the petitioner.”
The Court recorded that to constitute an offence under Section 306 of the Indian Penal Code, there must be proof of either instigation or conspiracy or intentional aiding or a direct or indirect act of incitement to the commission of suicide.
It stated that a mere allegation of humiliation, harassment, or threat unaccompanied by any incitement or instigation is not sufficient to attract the offence.
The Court further observed that there was no averment in Annexure A1 complaint or in the evidence of PWs 1 to 3 that by handing over the Annexure A2 draft agreement for divorce, there was any instigation, intentional aiding, or direct or indirect act of incitement to the commission of suicide by the petitioner.
The Court held that the trial court had gone wrong in allowing the application filed by the Assistant Public Prosecutor under Section 216 of the Code of Criminal Procedure.
It recorded that the addition of charge sought by the prosecutor should not have been allowed. Accordingly, the impugned order dated 02.05.2014 in C.C. No.128/2010 on the file of the Judicial First-Class Magistrate Court-II, Kannur was set aside. The criminal miscellaneous case was allowed.
Advocates Representing the Parties
For the Petitioners: Sri. M. Ramesh Chander, Senior Advocate; Sri. Aneesh Joseph; Smt. Dennis Varghese
For the Respondents: Sri. Sangeetha Raj, Public Prosecutor
Case Title: Puthiya Purayil Shaji v. State of Kerala and Another
eutral Citation: 2025:KER:35619
Case Number: Crl.M.C. No. 3035 of 2014
Bench: Justice Dr. Kauser Edappagath
[Read/Download order]
