Criminal Application (Apl) No. ... vs Unknown
2012 Latest Caselaw 185 Bom

                                        1




                                                                             
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                     
                           NAGPUR BENCH : NAGPUR




                                                    
    Criminal Application (APL) No. 423 of 2012




                                           
    Applicant          :  Girish son of Sanjay Bole, aged about 21 years,
                           
                          Education, resident of Sambhaji Nagar, Behind
                          Water Tank, Mangrulpir, Dist. Washim
                          
                          versus
    Respondent         :  The State of Maharashtra, through Police Station

Officer, Mangrulpir, District Washim

Mr S. S Dhengale, Advocate for applicant Mr T. A. Mirza, Additional Public Prosecutor for State

Date of reserving the Judgment : 11.10.2012 Date of pronouncing the Judgment : 16.10.2012 Coram : P. V. Hardas and A. P. Bhangale, JJ

Dated : 16/10/2012

Judgment (Per A. P. Bhangale, J)

1. The applicant prayed for to quash and set aside FIR bearing

no 44 of 2012 dated 16-03-2012 registered under Section 306 read with

Section 34 of the Indian Penal Code at Mangrulpir Police station ,District

Washim against the applicant,Chaitanya Neval, Manoj Janjal,and

Swapnil Tayade.

2. The case against the applicant is that a girl Miss Ekta

Ajabrao Pradhan aged about 18 years resident of Shahapur Taluka

Taluka Mangarulpir decided to commit suicide at her residence by

pouring kerosene on her body and setting herself ablaze on 29-02-2012

at about 10.00 p.m. While she was receiving medical treatment at

Sarvopchar Rugnalaya at Akola, her dying declaration was recorded by

Executive Magistrate, Akola at about 7.30 a.m. after obtaining

endorsement from the doctor attending the patient Ekta, about her

fitness and consciousness to give statement in the nature of dying

declaration. Ekta made a statement on oath that she had poured

kerosene on her body and burnt herself due to the one-sided love by

Chaitanya Newal while she did not love him. He used to harass her as he

was exerting pressure upon her to love him. She had informed about

this to her family members. Friends of Chaitanya, namely Manoj Janjal,

Swapnil Tayade and Girish were also mentally harassing her. Fed up

with their harassment she burnt herself. Doctor had certified

consciousness of the maker of the statement during declaration. Police

had recorded statement of witnesses who stated about the oral dying

declaration made by Ekata in identical terms.

3. Learned Advocate Shri Dhengale argued that it is really

unfortunate that a girl who out of frustration ended her own life but

unless there is any material to show that the accused has abetted

suicide by any act or omission which caused the incident of suicide,

there is no ground to proceed further against him in the court. With this

submission he invited our attention to the ruling in Madan Mohan

Singh Vs. State of Gujrat reported in (2010) 8 SCC 628 to argue that

proceedings were quashed in the absence of material to base

prosecution under Sections 306 and 294(b) of the Indian Penal Code.

We have perused the ruling. In that petition the accused/appellant had

challenged the First Information Report (FIR) registered as C.R. No. 166

of 2008 at Naranpura Police Station. The said FIR was a long document

which has been filed by one Harshida Ben, widow of Krishnalal Joshi. It

was apparent from the said report that she was married to Deepakbhai

Krishnalal Joshi serving in Ahmadabad Bharat Sanchar Nigam Ltd. as a

driver in the Microwave Project Department. He had undergone a heart

bypass surgery in the year 2002 and he was asked by the doctor to avoid

lifting heavy weights. She further stated that the appellant, Madan

Mohan Singh was working as a D.E.T. and her husband who was driving

a Tata Sumo car was working under Madan Mohan Singh (accused

herein). She then complained that Madan Mohan Singh used to tell his

private errands to her husband and was harassing him. Though Madan

Mohan Singh was transferred, yet he kept on continuously using her

husband. In the year 2007, Madam Mohan Singh came back on transfer

in the Microwave Project as D.E.T. It is alleged that on the day when

Madan Mohan Singh joined, he told her husband to keep the keys of the

vehicle on the table. However, according to her, her husband did not

listen to that and took back the key on account of which Madan Mohan

Singh had become angry and had threatened her husband of suspending

him. He also rebuked her husband that if he did not listen to him, he

would create difficulties for her husband. Madan Mohan Singh said to

her husband as how he is still alive in spite of the insults. It is then

contended that on 21.2.2008, her husband left at 10 o'clock as per rules

with tiffin but did not return back in the evening and, therefore, his

search was taken by his son Jatin from his colleagues like Raji Saheb

and his absence was reported to the police on 22.2.2008 and 23.2.2008.

Ultimately, she came to know that her husband's body was lying in the

dead condition in the vehicle No. GJ 1 G 3472 at Kiran Park opposite

Gayatri Hospital, New Vadaj. She also suggested further that a

telephone call had come from Gujarat High Court informing her that

there was a Xerox copy of the suicide note. Lastly, it is stated that during

the period between 2003 to 21.2.2008 the Head of the department

D.E.T. Project was entrusting his house work to her husband but her

husband had not done the work entrusted to him and, therefore, he had

bias against her husband and insulted him in front of the staff several

times and because of this her husband got depressed and committed

suicide. It is under these circumstances the Apex Court found that there

was absolutely nothing in the FIR and the alleged suicide note which

was not yet on record . The Apex Court expressed that in spite of the

best efforts and microscopic examination of the FIR and the suicide

note, there was no material for the offence under Section 306 IPC either

in the FIR or so called Suicide note. 15 pages suicide note was described

as an anguish expressed by the driver who felt that his boss had

wronged him. Nothing intentional was imputed to the accused so that

deceased might commit suicide. In the facts of that case therefore the

Apex Court was of the clear opinion and observed that there was no

material for the offences under Section 306 and 294(b) of the Indian

Penal code. Therefore the proceedings were quashed.

4. Now coming back to the facts of the present case it appears

that the allegations are spelt out from the dying declaration of Ekta to

the effect the accused Chaitanya Newal had one sided love for her but

she did not love him. He was exerting pressure upon her to love him.

Chaitanya's friend also mentally harassed Miss Ekta , then she got

frustrated due to harassment from the accused persons and burnt

herself. Statement of Ekta to her parents and Brother in the nature of

oral dying declaration appears in same terms. It is not in dispute that

there is no material in addition whatsoever to prima facie believe that

the deceased was either instigated, or aided by the accused to commit

suicide. There is no material to point out against the applicant that he

had entered in to any criminal conspiracy with any of his friends for to

harass the alleged victim and to drive her to commit suicide. Section 107

Indian Penal Code defines abetment of a thing. The offence of abetment

is a separate and distinct offence provided in the Act as an offence. A

person, abets the doing of a thing when he instigates any person to do

that thing; or (2) engages with one or more other persons in any

conspiracy for the doing of that thing; or (3) intentionally aids, by act or

illegal omission, the doing of that thing. These things are essential to

complete abetment as a crime. The word "instigate" literally means to

provoke, incite, urge on or bring about by persuasion to do any thing.

The abetment may be by instigation, conspiracy or intentional aid, as

provided in the three clauses of Section 107. Section 109 provides that

if the act abetted is committed in consequence of abetment and there is

no provision for the punishment of such abetment, then the offender is

to be punished with the punishment provided for the original offence.

'Abetted' in Section 109 means the specific offence abetted. Therefore,

the offence for the abetment of which a person is charged with the

abetment is normally linked with the proved offence In cases of alleged

abetment of suicide there must be proof of direct or indirect acts of

incitement to the commission of suicide.

5.

In the landmark case of State of Haryana vs. Bhajan Lal

(1992 Supp.(1) SCC 335) the Apex Court considered in detail the

provisions of Section 482 and the power of the High Court to quash

criminal proceedings or FIR. The Apex Court summarized the legal

position by laying down the following guidelines to be followed by High

Courts in exercise of their inherent powers to quash a criminal

complaint:

"10. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face

value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police

officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of

the Code.

(3) Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose

the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a

cognizable offence but constitute only a non- cognizable

offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under

Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so

absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is

sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the

provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a

specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on

the accused and with a view to spite him due to private and personal grudge."

6. We have considered the rival submissions at the Bar with

reference to material collected during the investigation.

7. Applying the principles stated as above and perusing the

material collected we agree with the submission made by Shri

Dhengale .We have found that during the course of the investigation ,

the investigating agency could not case make out any case to believe

even prima facie involvement of the applicant in the accusation

punishable under Section 306 read with Section 107 of the Indian Penal

Code even if we assume that the entire material collected during the

investigation is true. The proceeding in our opinion on the basis of

available material would result in nothing except unnecessary

harassment to the applicant who is young student pursuing his

educational career and it may affect his career if these proceedings are

allowed to continue in the Court while chances of the conviction for the

offences alleged are absolutely bleak. If material collected by the

investigating agency can not constitute the offence alleged, prosecution

in such case would be an empty exercise in futility. It would be waste of

judicial time and public money and would result in loss of precious time

of the student/applicant as well if the prosecution continues to linger on

fruitlessly on the basis of omnibus and vague accusations which are not

at all supported by any additional material during the investigation to

justify any ground to proceed further. We therefore quash and set aside

the proceedings against the applicant arising from the FIR no. 44 of

2012 dated 16-03-2012 registered by Mangrulpeer Police Station.

8. In the result, Criminal Application is allowed in terms of

prayer clause (a) thereof.

                   A. P. BHANGALE, J                              P. V. HARDAS, J
           
        



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