wp-750-19(j).odt 1/13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO. 750 OF 2019
1. Akshay S/o Vikas Patil,
Aged about 38 years, Occ. Service,
R/o 803, Balaji Anandam Society,
Behind Bhagwati Lawns, Trimurti
Nagpur, Nagpur-22
Working as Airport Manager,
Go-Airlines (India) Ltd., Nagpur
2. Nilay S/o Sureshchandra Janbandhu,
Aged about 36 years, Occ. Service,
R/o Plot No.120, Ayyappa Nagar,
Behind Shyam Lawn, Ring Road,
Katol Road, Nagpur
working as Senior Ramp Officer,
Go Airlines (India) Ltd., Nagpur : PETITIONERS
...VERSUS...
1. State of Maharashtra,
through Police Station Officer,
Police Station Ajni, Nagpur.
2. Mahendra S/o Ramchandra Chavhan,
Aged about 55 years, Occ. Service,
R/o Chandramani Nagar, Lane No.1/L,
Post - Bhagwan Nagar, Nagpur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr. Sunil Manohar, Senior Counsel assisted by Mr.Rohit Joshi, Advocate for the
petitioner.
Mr. S.M.Ghodeswar, Additional Public Prosecutor for the respondent no.1.
Mr. Y.B. Mandpe, Advocate for the respondent no.2.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : V.M. DESHPANDE &
ANIL S.KILOR, J.
DATE : 4th JANUARY, 2021.
ORAL JUDGMENT (Per : Anil S. Kilor, J.) ::: Uploaded on - 22/01/2021 ::: Downloaded on - 06/02/2021 15:42:57 ::: wp-750-19(j).odt 2/13 The accused in Crime No. 373 of 2019, for the offence punishable under Section 306 read with Secion 34 of the Indian Penal Code, have approached to this Court by filing this Writ Petition under Article 226 of Constitution of India read with Section 482 of the Code of Criminal Procedure, for quashing the aforesaid First Information Report.
2. It is the case of the prosecution that the respondent no.2's son Manthan committed suicide and thereupon, he lodged a criminal report on 8th August, 2019, alleging that due to work pressure exerted by the petitioners, his son committed suicide. It is alleged that his son was working in 'Go Airlines' and on 22 nd May, 2019 there was some delay on the part of the loader workers working under the deceased Manthan in bringing the wheel chairs as a consequence of which the Petitioner No.1 and thereafter the Petitioner No.2, have scolded him in presence of other loaders. It is alleged that the deceased felt insulted due to the said incident. The complainant further alleges that the deceased was not feeling well on 25th May, 2019 and therefore, he had not reported on duty. Thereupon, the petitioner No.2 called him in the morning, enquiring about his absence on which the deceased informed him ::: Uploaded on - 22/01/2021 ::: Downloaded on - 06/02/2021 15:42:57 ::: wp-750-19(j).odt 3/13 that he was unable to report for duty since he was feeling weak and he was required to take leave. The complainant states that the documents pertaining to treatment of the deceased were forwarded on "whatsapp" to the Petitioner No.1 and also informed him that he was indisposed. Despite this, repeated calls and messages regarding reporting on duty were made/sent to the deceased from the petitioners' office. The complainant further states that on 29 th May, 2019, on clinical investigations it was revealed that the deceased was suffering from jaundice and intimation regarding this was given to the petitioner No.1. Whereupon, the petitioner No.1 asked the deceased to drop the location of his house on his cell phone, so that he could meet him personally. It is alleged that the deceased had received a phone call from the petitioner no.2 on 30 th May, 2019 in the morning at about 9.45 a.m at that time the mother of the deceased intervened during the conversation, thereupon the petitioner No.2 told her that she was not aware about the rules and regulations of the Company and that her son would be removed from service if he keeps going on leave. It is alleged that deceased was upset due to continuous pressure exerted by the petitioners and committed suicide by hanging himself in his residential house on 30th May, 2019. ::: Uploaded on - 22/01/2021 ::: Downloaded on - 06/02/2021 15:42:57 :::
wp-750-19(j).odt 4/13
3. The said complaint lodged by the respondent no.2 was registered as Crime No.372 of 2019, with Ajni Police Station, Nagpur the same is sought to be quashed and set aside by the present petition.
4. We have heard Shri Sunil Manohar, learned Senior Advocate assisted by Shri Atharv Manohar, learned counsel appearing for the petitioners, Shri S.M.Ghodeswar, learned Additional Public Prosecutor and Shri V.M. Mandape, learned counsel for the respondent no.2-complainant.
5. Shri Manohar, learned Senior Advocate argues that the incident had occurred on 30th May, 2019, whereas the complaint was lodged on 8th August, 2019 i.e. after a period of around 70 days. It is submitted that the delay in lodging the complaint therefore, creates doubt about its reasonableness and credibility particularly as the respondent no.2 has not offered any justifiable reasons or explanation for delay.
6. Shri Manohar, learned Senior Advocate further submits that even if the allegations made in the complaint are taken as true on their face value, the same do not constitute offence under ::: Uploaded on - 22/01/2021 ::: Downloaded on - 06/02/2021 15:42:57 ::: wp-750-19(j).odt 5/13 Section 306 of the Indian Penal Code. It is submitted that the only allegation is that the petitioners had scolded the deceased in harsh words in relation to his work, which does not constitute offence under Section 306 of Indian Penal Code. By arguing so, he prays for quashment of the First Information Report in question.
7. To fortify his submission, learned counsel for the petitioner has placed reliance on the following judgments:-
i. Arnab Manoranjan Goswami Vs. State of Maharashtra and others reported in 2020 SC Online SC 964 ii. Dilip and others Vrs. State of Maharashtra and others reported in 2016 ALL MR (cri) 4328.
8. On the other hand Shri S.M.Ghodeswar, learned Additional Public Prosecutor strongly opposed the present petition and submits that allegation made in the complaint prima-facie constitutes an offence under Section 306 of Indian Penal Code against the petitioners and therefore this is not a case where this Court may exercise the jurisdiction under Article 226 of Constitution of India or under Section 482 of the Code of Criminal Procedure. By arguing so he prays for dismissal of the present petition.
::: Uploaded on - 22/01/2021 ::: Downloaded on - 06/02/2021 15:42:57 :::
wp-750-19(j).odt 6/13
9. Shri Mandpe, learned counsel for the respondent no.2 reiterated the contention raised by the learned Additional Public Prosecutor and in addition he submits that the respondent no.2 and the mother of the deceased were under shock because they lost their beloved son and therefore, there was a delay in lodging the First Information Report in question.
10. He further submits that during the investigation, the statement of respondent no.2 came to be recorded and in the said statement, the respondent no.2 has narrated the incident in detailed, giving also the details of torcher and harassment meted out by the petitioners to the deceased continuously for eight days, prior to incidence in question. Thus, he submits that there is enough material on record and even the allegation made in the First Information Report are sufficient to attract the Section 306 of Indian Penal Code against the petitioners and therefore, he submits that this Court may not show indulgence in the present matter and dismissed the present petition.
11. To consider the rival contentions, we have given conscious thoughts to the facts of the present case and also perused the documents and the case diary which is made available ::: Uploaded on - 22/01/2021 ::: Downloaded on - 06/02/2021 15:42:57 ::: wp-750-19(j).odt 7/13 by the learned Additional Public Prosecutor.
12. Let us first examine the position of law as regards pre- requirements to attract Section 306 of Indian Penal Code. Recently, the Hon'ble the Supreme Court of India in a case of Arnab Manoranjan Goswami Vs. State of Maharashtra and others (supra) had an occasion to consider the same. The Hon'ble the Supreme Court of India has observed thus:
55. The Court noted that before a person may be said to have abetted the commission of suicide, they ―must have played an active role by an act ofmust have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Instigation,as this Court held in Kishori Lal(supra), "literally means to provoke, incite, urge on or bring about by persuasion to do anything". In S S Chheena vs Vijay Kumar Mahajan, a two judge Bench of this Court, speaking through Justice Dalveer Bhandari, observed: ―must have played an active role by an act of
25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive 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.::: Uploaded on - 22/01/2021 ::: Downloaded on - 06/02/2021 15:42:57 :::
wp-750-19(j).odt 8/13 56 Madan Mohan Singh vs State of Gujarat was specifically a case which arose in the context of a petition under Section 482 of the Cr.P.C where the High Court had dismissed the petition for quashing an FIR registered for offences under Sections 306 and 294(B) of the IPC. In that case, the FIR was registered on a complaint of the spouse of the deceased who was working as a driver with the accused. The driver had been rebuked by the employer and was later found to be dead on having committed suicide. A suicide note was relied upon in the FIR, the contents of which indicated that the driver had not been given a fixed vehicle unlike other drivers besides which he had other complaints including the deduction of 15 days' wages from his salary. The suicide note named the accused- appellant. In the decision of a two judge Bench of this Court,delivered by Justice VS Sirpurkar,the test laid down in Bhajan Lal(supra) was applied and the Court held:
"10.We are convinced that there is absolutely nothing in this suicide note or the FIR which would 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.
11. In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself ::: Uploaded on - 22/01/2021 ::: Downloaded on - 06/02/2021 15:42:57 ::: wp-750-19(j).odt 9/13 describes as depression. In the so-called suicide note, it cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked himnot to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this."
57. Dealing with the provisions of Section 306 of the IPC and themeaning of abetment within the meaning of Section 107, the Court observed:
"12.In order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306 IPC either in the FIR or in the so-called suicide note."
60. More recently in M Arjunan vs State (represented by its Inspector of Police)25, a two judge Bench of this Court,speaking through Justice R.Banumathi, elucidated the essential ingredients of the offence under Section 306 of the IPC in the following observations:―must have played an active role by an act of "7. The essential ingredients of the offence under Section 306 IPC are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using ::: Uploaded on - 22/01/2021 ::: Downloaded on - 06/02/2021 15:42:57 ::: wp-750-19(j).odt 10/13 abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide.
Unless the ingredients of instigation/abetment to commit suicide are satisfied the accused cannot be convicted under Section 306 IPC."
13. The Division Bench of this Court in the case of Dilip and others Vrs. State of Maharashtra and others (supra) has 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 abeting 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.
14. From the above referred judgments, following pre- requisite emerged to attract Section 306 of Indian Penal Code.
(i) There has to be a clear mens rea to commit the offence. ::: Uploaded on - 22/01/2021 ::: Downloaded on - 06/02/2021 15:42:57 :::
wp-750-19(j).odt 11/13
(ii) The person must have played a positive and an active
role which involves a mental process of instigating or intentionally aiding or doing certain act to facilitate the commission of suicide. (Instigation literally means to provoke, incite, urge on or bring about by persuasion to do anything.) 4
15. On the aforesaid touch stone we revert back to the facts of the present case. After going through the contents of the First Information Report, it is revealed that the deceased Manthan was continuously on leave from 25th May, 2019 onward till the date of commission of suicide on 30th May, 2019, on a ground that he was not keeping well as he was suffering from jaundice. The allegations made in the First Information Report disclose that the petitioners repeatedly made phone calls to the deceased, initially to know the reason for his absence and on knowing the reason, to know his location so that the petitioner no.1 could meet him personally. It appears from the First Information Report that the conversation of the petitioner no.2 with the mother of the deceased, saying that if the deceased remains continuously on leave, he might be discontinued from service as per the rules and regulations of the Company, drove the deceased to take extreme step to commit suicide.
17. From the above referred contents of the First Information Report, we do not find that any of the allegations made in the First Information Report, discloses the case of abetment against the petitioners or that the petitioners had instigated or aided the deceased to commit suicide. Thus, we have arrived at a ::: Uploaded on - 22/01/2021 ::: Downloaded on - 06/02/2021 15:42:57 ::: wp-750-19(j).odt 12/13 conclusion that from the contents of the First Information Report, no offence constitute under Section 306 of Indian Penal Code.
18. The police diary contains the statements of the co- workers or the colleagues of the deceased Manthan. About eight statements of the employees of Go-Airlines (India) Ltd., Nagpur were recorded by the police. In none of the statements it has come on record that there was any harassment at the hands of the petitioners to the deceased which led him to commit suicide. Hence, there is nothing on record wherefrom it can be gathered that the petitioners, either instigated or aided the deceased to commit suicide.
19. Apart from the merits, there is one more aspect which needs to be considered and which has a bearing on the present case. Admittedly, the deceased Manthan committed suicide on 30 th May, 2019, however, the First Information Report was lodged on 8 th August, 2019 i.e after a period of 70 days. The complainant has not offered any explanation in the First Information Report for delay, which therefore, creates doubt about its reasonableness and genuineness. In the present matter therefore, delay of 70 days in lodging the Report, is fatal.
20. Having observed that the offence under Section 306 of Indian Penal Code does not attract against the petitioner and having further observed that the delay caused in filing the First Information Report, is fatal, we are of the considered view that if the petitioners are forced to face the criminal trial it would amount ::: Uploaded on - 22/01/2021 ::: Downloaded on - 06/02/2021 15:42:57 ::: wp-750-19(j).odt 13/13 to miscarriage of justice. Moreover, it is unlikely that even if trial is conducted against the petitioners it would culminate into conviction of the petitioners for the reasons recorded hereinabove. Therefore, to secure the ends of justice, we pass the following order.
ORDER
i. The Writ Petition is allowed.
ii. First Information No. 372 of 2019 dated 8th August,
2019 registered with Ajni Police Station on a complaint lodged by the Respondent No.2 against the petitioner for the offence punishable under Section 306 read with 34 of Indian Penal Code is hereby quashed and set aside.
iii. The Writ Petition is disposed of. No order as to costs.
JUDGE JUDGE
sknair
::: Uploaded on - 22/01/2021 ::: Downloaded on - 06/02/2021 15:42:57 :::