Ramesh Someshwarrao Tayde And ... vs State Of Maharashtra, Thr. P.S.O. ...
2016 Latest Caselaw 918 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH 




                                                                                      
                               NAGPUR.




                                                              
                 CRIMINAL    APPLICATION   NO.    865    OF     2015


    1] Ramesh Someshwarrao Tayde,




                                                             
    aged 50 yrs. Occu. Agriculturist,
    R/o Bhaktidham Temple, 
    Krushnakunja Colony, Tq. Chandur
    Bazar Distt. Amravati. 




                                               
    2] Rajkumar @ Raju Nilkanthrao
    Bharsakale, aged 45 yrs. Occu. 
                             
    Business, R/o Pralhadpur, Tq. 
    Chandur Bazar Distt. Amravati.                                         APPLICANTS.
                            
                                              VERSUS

    1] State of Maharashtra
    through Police Station Officer,
      

    Police Station Chandur Bazar,
    Distt. Amravati. 
   



    2] Rameshwarrao Sakharam
    Manekar, aged 72 yrs.
    Occu. Agriculturist, R/o
    Tq. Chandur Bazar,





    Distt. Amravati.                                                     NON APPLICANTS.


    Shri P. V. Navlani, Advocate for applicants.
    Shri J. Y. Ghurde, Additional Public Prosecutor for non applicant no. 1. 





    Smt. M. N. Hiwase, Advocate (Appointed) for  non applicant no. 2.
                                     *************

CORAM: B. R. GAVAI AND A. S. CHANDURKAR JJ.

Dated : MARCH 28, 2016.

ORAL JUDGMENT: (Per A. S. Chandurkar J.)

Admit. Heard finally with consent of counsel for the parties.

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2] This application has been filed under Section 482 of the Code of

Criminal Procedure, 1973 by the applicants who have been named in Crime

No. 314 of 2015 registered at Chandur Bazar Police Station, Taluka and

District Amravati for the offence under provisions of Section 306 read with

Section 34 of the Indian Penal Code (for short the Penal Code). The

applicants seek quashing of said First Information Report.

3] It is the case of non-applicant no.2 who was the father of one

Purushottam that his joint family was possessing various agricultural lands.

Some land was standing in the name of his son Purushottam. However, due

to drought conditions said Purushottam had taken loan of Rs. 4,50,000/-

from a bank which had not being repaid. On 07.10.2015 at about 6 P. M. the

son of non-applicant no. 2 came home and was found to be tense. Said

Purushottam told the non-applicant no. 2 that he had borrowed an amount of

Rs. 20,000/- from the applicant no. 2. In lieu thereof he had given a blank

cheque as well as a blank stamp paper valued at Rs. 100/-. Though the

borrowed amount was repaid, the cheque and stamp paper were not

returned. On the contrary one Nilesh Bhetalu issued a notice to the son of

the non-applicant no.2 stating therein that an amount of Rs. 70,000/- for

which the cheque had been issued was due and payable. According to the

non-applicant no.2 his son further told him that when he went to

Chandurbazar the applicants along with said Nilesh Bhetalu had given him

threats of life and had stated that they would approach the Court of law.

Purushottam therefore told the non-applicant no.2 that there was no other

option left but to commit suicide. Though the non applicant no. 2 tried to

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find reason with his son, at about 8 P. M. on the same day his son consumed

poison resulting in his death. According to the non-applicant no.2 even prior

to his death his son had stated that on account of fear and harassment by the

applicants and said Nilesh Bhetalu he had consumed poison. This report was

lodged by the non-applicant no. 2.

4] Shri P. V. Navlani, the learned counsel for the applicants

submitted that a bare perusal of the first information report would reveal that

the same did not disclose of any offence having been committed by the

applicants under Section 306 of the Penal Code. According to him there was

neither any abetment on the part of the applicants nor were there any

allegations that the applicants had instigated the son of the non-applicant no.

2 to commit suicide. There was no positive act on the part of the applicants

in either aiding or instigating or abetting Purushottam to commit suicide. It

was therefore submitted that even if the statements as made in the first

information report are taken at their face value, no offence under Section 306

read with Section 34 of the Penal Code was made out. In support of his

submissions the learned counsel relied upon the judgment of the Hon'ble

Supreme Court in S. S. Chheena Vs. Vijay Kumar Mahjan and Anr. 2010 ALL

MR (Cri.) 3298, judgment of the learned Single Judge in Seema Ajay

Bhoosreddy Vs. State of Maharashtra 2012(2) Maharashtra Law Journal

(Cri.) 459; and judgment of the learned Division Bench in Binod s/o Ratan

Sarkar and others Vs. State of Maharashtra and another 2013(3)

Maharashtra Law Journal (Cri.) 418. It was therefore submitted that as no

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offence has been made out under Section 306 read with Section 34 of the

Penal Code, the proceedings deserve to be quashed as their continuation

would amount to abuse of the process of law.

5] These submissions were opposed by Shri J. Y. Gurde, learned

Additional Public Prosecutor for the non-applicant no.1 and Ms. M. N.

Hiwase, learned counsel for the non-applicant no. 2. It was submitted that

on a plain reading of the report lodged by the non-applicant no.2, it was

clear that an offence punishable under Section 306 of the Penal Code was

made out. It was only on account of the threats given by the applicants along

with one Nilesh Bhetalu that the son of the non-applicant no. 2 had

committed suicide. The applicants were also named by the son of non

applicant no.2 as being responsible for giving trouble to him. It was,

therefore, submitted that if on a plain reading of the First Information Report

an offence has been made out, there would be no occasion to quash the same

as prayed. The decisions on which reliance was placed by the learned

counsel for the applicants were also sought to be distinguished. The learned

counsel prayed for dismissal of the application.

6] We have given due consideration to the respective submissions

and we have also gone through the material placed on record. Before

considering the prayer for quashing the proceedings under Section 482 of the

Criminal Procedure Code, 1973 it would be first necessary to keep in mind

the essential ingredients necessary to attract the provisions of Section 306 of

the Penal Code. The legal position in that regard stands settled in the light of

various decisions of the Hon'ble Supreme Court as well of this Court. In

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Seema Ajay Bhoosreddy (supra) decided by one of us (B. R. Gavai J.) the

decisions of the Hon'ble Supreme Court in Madan Mohan Singh Vs. State of

Gujrat (2010) 8 SCC 628 and S. S. Chheema Vs. Vijay Kumar Mahajan 2010

ALL MR (Cri.) 3298 were considered. It was held in Seema Ajay Bhoosreddy

(supra) in para 18:

"18. It can thus, be clearly seen that for proceeding further with the trial against the accused for an offence punishable under Section 306, 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. As held by the Apex Court, an

abetment involves mental process of instigating the person or intentionally aiding the person for doing of a thing. Without a positive act on the part of the accused in aiding or instigating or abetting the

deceased to commit suicide, the said person cannot be compelled to face a trial. Unless there is clear mens

rea to commit the offence or an 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 cannot be permitted."

Similarly in Binod s/o Ratan Sarkar (supra) the Division Bench

reiterated the aforesaid legal position.

7] If in the light of the aforesaid legal position the material on

record is perused on its face value, it can be seen that except the statements

that the son of non-applicant no.2 had borrowed some amount from the

applicant no.2 and that a notice had been issued by one Nilesh Bhetalu

seeking repayment of Rs. 70,000/- coupled with threats of life being given,

there is no material to even prima facie establish that the applicants had

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either an intention to aid or instigate or abet Purushottam to commit suicide.

There is neither any active or direct act on the part of the applicants which

led said Purushottam to commit suicide. There is neither any instigation nor

any intentional act done which compelled the son of non-applicant no.2 to

commit suicide. In fact in the first information report it is stated that as the

son of non-applicant no.2 was cheated and he had received a notice from the

Court, he had committed suicide. Issuance of a legal notice by one of the

accused cannot be said to be an act being committed with an intention to aid

or instigate or abet the deceased to commit suicide. Thus, the basic and vital

ingredients to enable the prosecution to proceed with the trial for an offence

punishable under Section 306 of the Penal Code are conspicuously missing.

In absence of this basic material, the continuation of the proceedings against

the applicants would amount to permitting an unwanted prosecution. The

present is therefore a fit case to exercise powers under Section 482 of the

Code of Criminal Procedure, 1973 to quash the proceedings. There is no

reason what so ever to compel the applicants to face the trial.

8] In view of aforesaid, the criminal application is allowed in terms

of prayer clause (i).

The fees of the learned counsel appointed for non applicant no.2

are quantified at Rs. 1500/-.

                                            JUDGE                      JUDGE



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