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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APL) NO. 513 OF 2016
APPLICANTS : 1] Yadav S/o Yeshwant Palaskar,
Aged about 48 years,
Occu. Block Development Officer,
Panchayat Samiti, Malegaon,
District Washim.
2] Kailash S/o Vishwasrao Ghuge,
Aged about 48 years,
Occupation : Block Development Officer,
R/o Panchayat Samittee, Malegaon,
District Washim
VERSUS
RESPONDENTS: 1] State of Maharashtra,
through Officer in Charge of Police Station,
Washim City, Tal. & Dist. Washim.
2] Baban S/o Waman Shelke,
Aged about 32 years,
R/o Kamathwada, Tah. & Dist. Washim.
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Mr. S. D. Chande, Advocate for the applicants.
Mrs. S.S. Jachak, A.P.P. for non-applicant no.1
Mr. R. J. Shinde, Advocate for non-applicant no.2
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CORAM : PRASANNA B. VARALE and
ARUN D. UPADHYE, JJ.
DATE : NOVEMBER 01, 2017.
ORAL JUDGMENT
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1] Heard Shri Chande, learned counsel for the applicants,
Mrs. Jachak, the learned Additional Public Prosecutor for non- applicant no.1 State and Shri Shinde, the learned counsel for non- applicant no.2.
2] ADMIT. 3] By this application under Section 482 of the Criminal
Procedure Code, the applicants are before this Court seeking quashment of first information report registered against them vide Crime No. 82/2016 dated 10.03.2016 at Police Station, Washim City, Washim for the offence punishable under Section 306 of the Indian Penal Code.
4] Mr. Chande, the learned counsel for the applicants invited our attention to the first information report and submitted that the report refers to death of brother of informant/complainant namely, Sanjay Waman Shelke. He states in the report that the information was received on mobile phone through his nephew Sairam Pandit Shelke and then it refers to a chit found near the dead body of Sanjay, stating that he was subjected to ill-treatment at the instance ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 01:10:49 ::: 3 APL513.16.odt of Extension officer Shri Ghuge. Then, the report refers to the allegation that deceased Sanjay used to tell the family members that his senior officers, more particularly the applicants i.e. Extension Officer Shri Palaskar and Extension Officer Shri Ghuge always used to ill-treat him and he was fed up with the ill-treatment and resorted to end his life by committing suicide.
5] Shri Chande, the learned counsel for the applicants vehemently submitted that the applicants entered in the service of Zilla Parishad initially at some subordinate level and then with their hard work, they were promoted to the post of Extension Officer. The learned counsel then submitted that applicant no.2 Shri Ghuge, with his utmost sincerity and hard work, was also awarded with apprising certificates. The learned counsel then submitted that only due to grudge, the deceased implicated these applicants as abetors for his act of suicide. The learned counsel then submitted that though, the reply filed by the non-applicant no.1/State refers to conclusion of investigation and filing of the charge-sheet, the material as referred to in the reply is wholly insufficient to make out any case against the applicants, least to connect these applicants for calling a criminal action under Section 306 of the Indian Penal Code against them. ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 01:10:49 :::
4 APL513.16.odt 6] Shri Chande, the learned counsel for the applicants then
submitted that insofar as applicant no.1 is concerned, it is only by way of an oral allegation reflected in the report that he was responsible for the alleged ill-treatment caused to the deceased. He submitted that the so called suicide note refers to applicant no.2, that too on a vague allegation that applicant no.2 was harassing the deceased. The learned counsel invited our attention to a certificate, dated 12/14.4.2002, issued by the President of Zilla Parishad, Washim to applicant no.2 when he was Secretary of Gram Panchayat village Vanoja, and submitted that applicant no.2 was active in Gram Swachhata Abhiyan and was encouraging the villagers for their participation in these government schemes. His effort was appreciated because the said village was awarded first prize at Divisional level. Thus, the submission of the learned counsel was applicant nos.1 and 2 were taking active interest in the welfare of the village and were discharging their duties with sincerity. 7] Shri Chande, the learned counsel for the applicants then submitted that deceased Sanjay was carrying a grudge against the applicants because in an enquiry proceeding it revealed that the ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 01:10:49 ::: 5 APL513.16.odt deceased, who was acting as a Secretary of the Gram Panchayat, misled to the members of the enquiry committee. He stated that in the said enquiry, deceased took contrary stands and changed the same from time to time and as such, the President of the Zilla Parishad passed an order to initiation an action against deceased for his dereliction in duties. The learned counsel then submitted that because of this order, deceased was carrying a grudge against the applicants and there was no personal animus of present applicants against the deceased. Thus, it was the submission of the learned counsel for the applicants that only on baseless allegations, which are farfetched and the material in the report itself being too inadequate to call for any action against the applicants, initiation of the criminal proceedings against the applicants and its further continuation is nothing but an abuse of process of law.
8] Shri Chande, the learned counsel then submitted that in view of the settled guidelines of the Hon'ble Apex Court in State of Haryana and others .vs. Bhajan Lal and others (1992 Supp (1) SCC
335), continuation of such proceedings against the applicants, which is an abuse of process of law, is required to be quashed and set aside. The learned counsel also placed heavy reliance on the judgments of ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 01:10:49 ::: 6 APL513.16.odt Division Bench of this Court, reported in 2017 All M.R. (Cri) 1869 in the case of Rajendrakumar Bajranglal Sharma and others .vs. State of Maharashtra and another ; 2017 All M.R. (Cri) 1829 in the case of Sopan Angadrao Akele .vs. State of Maharashtra and another ; and the judgment of the Hon'ble Apex Court reported in (2010) 8 Supreme Court Cases 628 in the case of Madan Mohan Singh .vs. State of Gujarat and another.
9] Mrs. Jachak, the learned Additional Public Prosecutor for non-applicant no.1 State and Mr. Shinde, learned counsel for non- applicant no.2 oppose the application.
10] The learned Additional Public Prosecutor submitted that the investigating agency has collected certain material and also recorded the statements of witnesses, which support the case of the complainant/informant.
11] On the backdrop of rival submissions of the learned counsel for the respective parties, we have gone through the material on record.
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7 APL513.16.odt 12] On a perusal of the material, more particularly the order
passed by the President of Zilla Parishad, dated 09.2.2016, wherein the President issued direction to initiate an action against deceased Sanjay Shelke, we find considerable merit in the submission of the learned counsel for the applicants that deceased Sanjay was carrying grudge against these applicants, who were only discharging their official duty. There is nothing placed on record so as to suggest that the applicants were having any personal animus against the deceased the learned counsel for the applicants was justified in submitting that continuation of the proceedings against present applicants, who were acting in their official capacity, would be nothing but an abuse of process of law.
13] The learned counsel for the applicants was also justified in placing reliance on the judgments of the Hon'ble Apex Court as well as the Division Bench of this Court, cited supra. It may be useful to refer to the observations of the Hon'ble Apex Court in Madan Mohan Singh's case (supra), more particularly paragraph 10 thereof, which reads thus -
"10. We are convinced that there is absolutely nothing in this suicide note or the FIR which would ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 01:10:49 ::: 8 APL513.16.odt even distantly be viewed as an offence much less under Section 306, IPC. We could not find anything in the FIR or in the so-called suicide note which could be suggested as abetment to commit suicide. In such matters there must be an allegation that the accused had instigated the deceased to commit suicide or secondly, had engaged with some other person in a conspiracy and lastly, that the accused had in any way aided any act or illegal omission to bring about the suicide."
14. It will also be useful to refer to the observations of the Division Bench judgment of this Court in Sopan Angadrao Akele's case (supra), more particularly paragraphs 22, 23 and 24 thereof, which read thus -
"22. In the case of Tushar s/o Mahadeorao Arsul 2013 All MR (Cri) 1243 (supra), the Division of the Bombay High Court, Bench at Aurangabad, in para 6 of the Judgment observed that :
"We are of the considered view that the act or acts of accused to insult do not by themselves constitute abetment. It has to be shown from a statement in the complaint that these accused have actually instigated and aided in the victim's act of committing suicide. In absence of any such description, the FIR is liable to be viewed as a text which does not contain the ingredients of offence."
23. In the case of Dilip s/o Ramrao Shirasao [2016 ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 01:10:49 ::: 9 APL513.16.odt All MR (Cri) 4328](supra), the Division Bench of the Bombay High Court, Bench at Nagpur considered the various Judgments of the Supreme Court and the High Court and in Para 20 of the Judgment, held thus:
"20. As has been held by Their Lordships of the Apex Court that for permitting a trial to proceed against the accused for the offence punishable under Section 306 of the Indian Penal Code, it is necessary for the prosecution to at least prima facie establish that the accused had an intention to aid or instigate or abet the deceased to commit suicide. In the absence of availability of such material, the accused cannot be compelled to face trial for the offence punishable under Section 306 of the Indian Penal Code. As has been held by Their Lordships of the Apex Court that abetment involves mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused in aiding or instigating or abetting the deceased to commit suicide, the said persons cannot be compelled to face the trial. Unless there is clear mens rea to commit an offence or active act or direct act, which led the deceased to commit suicide seeing no option or the act intending to push the deceased into such a position, the trial against the accused under Section 306 of the Indian Penal Code, in our considered view, would be an abuse of process of law." (emphasis supplied)
24. ......... Unless there is clear mens rea to commit ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 01:10:49 ::: 10 APL513.16.odt an offence or active act or direct act which led the deceased to commit suicide seeing no option or the act intending to push the deceased into such a position, the trial against the Applicant under Section 306 of the I.P. Code, in our considered view, would be an abuse of process of law. (emphasis supplied) 15] Considering all these aspects, we are of the opinion that the learned counsel for the applicants has made out a case for exercising powers under Section 482 of Cr.P.C. In the result, the criminal application is allowed in terms of prayer clause (i) and disposed of accordingly.
JUDGE JUDGE
Diwale
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