Vinayak S/O Deorao Bhagat vs State Of Maharashtra, Through ...
2016 Latest Caselaw 929 Bom

apl380.15

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH

NAGPUR.

             CRIMINAL    APPLICATION (APL)   NO.   380     OF     2015




                                                              
    Vinayak Deorao Bhagat,




                                                             
    aged 50 yrs. Occu.
    Service, R/o Civil Lines,
    Washim, Tq. & Distt.
    Washim.                                                                APPLICANT.




                                               
                                              VERSUS


    1] State of Maharashtra
                             
    through Officer in charge of
    Police Station, Police Station
                            
    Washim City, Washim. 

    2] Narayan Mallahari Thorat,
    aged 78 yrs. Occu. Retired
      

    Teacher, R/o Civil Lines,
    Chikhli Road, Washim, Tah. & 
   



    Distt. Washim.

    3] Priya Sanjay Thorat,
    aged 41 yrs.  Occu. Service,
    R/o Civil Lines, Chikhli





    Road, Washim, Tah. & Distt.
    Washim.                                                                NON-APPLICANT.





                                   CORAM:  B. R. GAVAI  AND  
                                                   A. S. CHANDURKAR  JJ.
                               
                                      Dated    :     MARCH  28, 2016.

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

The present application filed under Section 482 of the Code of

Criminal Procedure, 1973 seeks quashing of first information report in Crime

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No. 35 of 2015 that has been lodged against the applicant under Section 306

of the Indian Penal Code (for short, the Penal Code).

2] It is the case of the non applicant no.2-Narayan that his son

Sanjay was married to the non-applicant no.3 prior to about 17 years. His

son was employed as a Teacher in a school and he was acquainted with the

applicant. Prior to about 10 years his son Sanjay had come to reside near the

house of non applicant no.2 after which even the applicant started residing

near their house. It is the further case that the applicant used to call the non-

applicant no.3-wife of Sanjay on her mobile phone and used to trouble her.

Though Sanjay had told the applicant not to trouble his wife, the telephone

calls were not discontinued. On 09.02.2015 there was a heated argument

between the applicant and Sanjay. Sanjay had told the applicant that he was

always troubling his wife by making calls on her mobile phone. On

12.02.2015 when the wife of the applicant went to make enquiries about

Sanjay as he was not seen, it was noticed that Sanjay had committed suicide.

During the postmortem a chit was found in his pocket in which it was stated

that the applicant had spoiled the family life of Sanjay and hence he should

not be forgiven. The non-applicant no.2 lodged his report on 14.02.2015

stating therein that the applicant was responsible for inducing his son to

commit suicide. On that basis the offence punishable under Section 306 of

the Penal Code came to be registered against the applicant vide Crime No. 35

of 2015.

3] Shri S. D. Chande, learned counsel for the applicant submitted

that the report lodged by the non applicant no. 2 did not even primafacie

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make out any offence committed by the applicant that would be punishable

under Section 306 of the Penal Code. It was submitted that the ingredients

of Section 306 of the Penal Code were not made out in the report lodged by

the non applicant no.2. Merely on the allegations that the applicant used to

make phone calls to the wife of said Sanjay, the report alleging commission

of offence punishable under Section 306 of the Penal Code had been lodged.

There was neither any abetement nor any instigation alleged to have been

given by the applicant on the basis of which it could be said that said Sanjay

committed suicide. According to the learned counsel, even if the statements

as made in the first information report were taken at their face value, no

offence under Section 306 of the Penal Code was made out. In support of his

submissions the learned counsel for the applicant placed reliance on the

judgment of the Division Bench in Binod Ratan Sarkar and others Vs.

State of Maharashtra and another 2013(3) Maharashtra Law Journal

(Cri.) 418. It was therefore submitted that as no offence had been made out

under Section 306 of the Penal Code the proceedings deserve to be quashed.

4] Mrs. M. H. Deshmukh, the learned Additional Public Prosecutor

for the non-applicant no.1 and Shri R. J. Shinde, the learned counsel for the

non-applicant no.2 opposed aforesaid submissions. It was submitted that on

a plain reading of the report lodged by non-applicant no.2 it was clear that an

offence under Section 306 of the Penal Code was made out. It was only on

account of the harassment on the part of the applicant in repeatedly calling

the wife of the deceased on her mobile phone that led Sanjay to commit

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suicide. It was submitted that even on 09.02.2015 there were heated

arguments between the applicant and Sanjay after which Sanjay committed

suicide. The chit found in the pocket of Sanjay also indicated that it was the

applicant who was responsible in leading Sanjay to commit suicide.

Shri Mahesh Rai, the learned counsel for the non-applicant no.3

who is the wife of deceased Sanjay however denied the statements made in

the first information report. He submitted that the applicant had never made

any calls to the non-applicant no. 3 on her mobile phone. On the contrary,

the non-applicant no.3 was having good relations with the wife of the

applicant as both of them belonged to the same village.

5] Having considered the respective submissions and having gone

through the material available on record, we are of the view that the

proceedings initiated pursuant to the report lodged by non-applicant no.2

deserve to be quashed. The legal position with regard to the essential

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

Code are now settled. In Seema Ajay Bhoosreddy Vs. State of

Maharashtra 2012(2) Maharashtra Law Journal (Cri.) 459 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

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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.

6] In the light of aforesaid legal position if the material on record is

considered on its face value it can be seen that the non-applicant no.2 who is

the first informant has referred to phone calls being made by the applicant to

the wife of Sanjay. There is a reference to some heated arguments between

the applicant and Sanjay on 09.02.2015. Thereafter on 12.02.2015 Sanjay

committed suicide and in a chit found in his pocket it is stated that the

applicant was responsible for spoiling his life.

The aforesaid indicates that there is no material what so ever

even of a prima facie nature to establish that the applicant had either an

intention to aid or instigate or abet Sanjay to commit suicide. There is no

reference to any active or direct act on the part of the applicant which led

said Sanjay to commit suicide. Similarly there is neither any instigation nor

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

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commit suicide. Even the chit found in the pocket of the deceased does not

contain any such material to indicate any instigation or abetement on the

part of the applicant herein that could be treated as having led Sanjay 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 applicant 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

applicant to face the trial.

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

of prayer clause (i).

                                   JUDGE                 JUDGE



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