Bombay High Court
Sau. Anita W/O Santosh Dande And ... vs Santosh S/O Ramrao Dande And ... on 9 August, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO.70/2015
1. Priti w/o Ravindra Bhange,
aged 28 years, Occ. Household.
2. Mukund s/o Pundlikrao Mahale,
aged 26 years, Occ. Agricultursit.
Both r/o Bapu Nagar, Near Mohanbai
School, Digras, Tah. Digras,
Dist. Yavatmal. .....APPLICANT
ig ...V E R S U S...
1. State of Maharashtra through
the Police Station Officer,
Police Station, Ladkhed,
Dist. Yavatmal.
2. Shankarrao s/o Gunnaji Bhange,
aged 64 years, Occ. Pensioner,
r/o Ladkhed, Tq. Darwha,
Dist. Yavatmal. ...NON APPLICANTS
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Mr. J. A. Malnas with Mr. T. M. Malnas, Advocates for applicants.
Mrs. Geeta Tiwari, A.P.P. for non applicant no.1-State.
Mr. A. B. Mirza, Advocate for non applicant no.2.
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CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :-
AUGUST 9, 2016
J U D G M E N T (Per : V. M. Deshpande, J.)
1. Rule. Rule made returnable forthwith. Heard finally by
consent of the learned counsel for the respective parties.
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2. The facts giving rise to the present application are as
under:
(a) Applicant no.1-Priti and applicant no.2-Mukund are sister
and brother. Non applicant no.2 is father of Ravindra Bhange.
Marriage between applicant no.1-Priti and Ravindra was solemnized
on 03.06.2013.
(b) After four months of marriage, Priti lodged report with
Police Station, Ladkhed against her husband Ravindra. Non applicant
no.2-Shankarrao, her father in law, Shobha her mother in law and
Ajay, her brother in law on the allegation that in the marriage
parents of Priti gave Rs.3,00,000/- in cash and also various
household articles. After marriage, for first 20 days, she was treated
nicely. Thereafter, she went to her parental house at Digras for some
days and on her return to her matrimonial house, there was a
demand of Rs.5,00,000/- to her by the accused persons. Ultimately,
the ill treatment became unbearable. Therefore, on 08.07.2013, Priti
called the applicant no.2-Mukund by making a phone call. To him
also, when he reached to her matrimonial house, a demand was
made and she was driven out of her matrimonial house. On these
assertions, the crime was registered against non applicant no.2 in the
present case and husband of Priti, vide Crime No.222/2013 for the
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offence punishable under Sections 498-A, 506, read with Section 34
of the Indian Penal Code.
(c) In the year 2014, applicant no.1-Priti filed maintenance
proceeding under Section 125 of the Cr. P. C. against her husband
Ravindra in the Court of J.M.F.C. Darwha as Misc. Criminal
Application No.14/2014. In the said application, it was asserted by
the applicant no.1 that from 08.07.2013, she is residing separately
from her husband Ravindra, which fact is also admitted by Ravindra
while contesting Misc. Criminal Application No.14/2014.
(d) On 24.08.2015, applicant no.1-Priti filed application
under Section 408 of the Cr. P. C. for transfer of Misc. Criminal
Application No.14/2014 from Darwha Court to Digras Court. The
said application was moved before District Judge, Yavatmal.
(e) On 27.12.2015, an FIR is lodged by non applicant no.2
against the applicant with Police Station, Ladkhed. The crime is
registered as Crime No.178/2015 for the offence punishable under
Section 306 read with Section 34 of the IPC. According to the FIR
lodged by non applicant no.2, on 20.11.2015 when Ravindra had
been to the District Court, Yavatmal in respect of the enquiry
regarding the application filed on behalf of applicant no.1 under
Section 408 of Cr. P. C., that time the applicant met Ravindra and
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uttered that today the stay in respect of the proceedings before the
Digras Court is granted. We will see you at Digras and one day you
will be killed by us. According to the FIR, these facts were narrated
to the non applicant no.2 by Ravindra himself when he reached to his
house. According to the FIR, therefore, Ravindra was under tension
and on 21.11.2015 when the matter was fixed at Darwha Court, he
left the house but since he was not found there, non applicant no.2
made a telephone call to Ravindra. In the meanwhile, non applicant
no.2 got a mobile call from one Jairam from whom it was disclosed
that Ravindra has committed suicide by jumping into the well of one
Shankar Mahalle. These are the allegations made in the FRI.
(f) By preferring the present application, the applicants are
seeking quashing of the FIR No.178/2015, filed by non applicant
no.2 for the offence under Section 306 read with Section 34
of the IPC.
3. We have heard Mr. J. A. Malnas, learned counsel for the
applicants, Mrs. Geeta Tiwari, learned A.P.P. for non applicant no.1
and Mr. A. B. Mirza, learned counsel for non applicant no.2.
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4. According to the learned counsel for the applicants, even
taking the allegations in the complaint lodged by non applicant no.2,
no case is made out for the offence under section 306 of the IPC. He
further submits that the allegations made in the complaint are
without any substance. He submits that as a matter of fact, the
applicant has no role whatsoever in commission of suicide of
Ravindra. He, therefore, submitted that this Court should exercise
the powers under Section 482 of the Cr.P.C. and prayed for quashing
of the FIR.
5. Per contra, Mr. Mirza, learned counsel for non applicant
no.2 submitted that the application under Section 9 of the Hindu
Marriage Act for restitution of conjugal rights was filed by the
deceased Ravindra. He submitted that on the basis of the affidavit
filed on behalf of non applicant no.2 that the proceedings against
Ravindra and non applicant no.2 under Section 498-A, 506 read with
Section 34 of the IPC were filed against them by applicant no.1-priti
falsely. He submitted that that due to the threat extended by the
applicant, the deceased got frightened and fear has developed in his
mind and, therefore, he committed suicide. The learned A.P.P. also
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supported the prayer of Mr. Mirza, learned counsel for non applicant
no.2 for dismissal of the present application.
6. The factum of lodging of various proceedings by applicant
no.1 against the deceased Ravindra is an admitted position. Nothing
can be attributed against the applicant no.1 for filing the
proceedings. The proceedings filed by the applicant no.1 against
Ravindra and non applicant no.2 are still pending. Therefore,
submission on behalf of the non applicant no.2 that the proceedings
filed by the applicant no.1 are false in nature, holds no water in the
absence of any judicial verdict.
7. The law as to what are the requirements to constitute an
offence punishable under Section 306 of the IPC is no more res
integra. The law is very well crystalized by the Hon'ble Apex Court in
the catena of cases including in the cases of Sanju alias Sanjay
Singh Sengar .vs. State of Madhya Pradesh, reported in 2002
Cri.L.J. 2796 ; Madan Mohan Singh .vs. State of Gujrat and
another, reported in (2010) 8 SCC 628 ; and in the case of S.S.
Chheena .vs. Vijay Kumar Mahajan reported in 2010 All MR (Cri)
3298 (S.C.).
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8. 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.
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. For securing
conviction 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 to option and that act
must be intended to push the deceased into such a position that he
commits suicide.
From the FIR and from the reply field by the prosecution,
it is clear that the action attributed against the applicants cannot be
held as an abetment to Ravindra to commit suicide.
9. Their Lordships of the Apex Court has held that for
permitting the trial, the proceeding against the accused for the
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offence punishable under Section 306 of the IPC, it is necessary for
the prosecution to at least prima facie establish that the accused had
an intentin to aid or instigate or abet the deceased to commit suicide.
In absence of availability of such material, the accused cannot be
compelled to face the trial for the offence punishable under Section
306 of the IPC. Unless there is a clear mens rea to commit offence or
active act or direct act, which led the deceased to commit suicide
seeing no option or the act intending to put the deceased into the
said position, the trial against the accused under Section 306 of the
IPC, in our considered view, would be the abuse of process of law.
10. In that view of the matter, we are of the considered view
that the continuation of the criminal proceedings against the
applicant would result in abuse of process of law. Consequently, we
allow the present application. Rule is made absolute in terms of
prayer clause (a) of the application.
(V. M. Deshpande) (B. R. Gavai)
kahale
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Uploaded by: Y. A. Kahale. Uploaded On:11.08.2016
