Deorao S/O. Bhaurao Hiwrale vs The State Of Maharashtra Thr. The ...
2017 Latest Caselaw 5752 Bom

APL  90/17                                            1                           Judgment

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      NAGPUR BENCH, NAGPUR.
               CRIMINAL APPLICATION (APL) No. 90/2017
Deorao s/o Bhaurao Hiwrale,
Aged about 32 years, Occ. Agriculturist,
R/o Chitoda, Tq. Khamgaon,
District : Buldana.                                                            APPLICANT
                                     .....VERSUS.....
1.    The State of Maharashtra,
      Through the Police Station Officer,
      City Police Station Khamgaon,
      Tq. Khamgaon, District - Buldana.
2.    Suvarna Sunil Tale,
      Aged 40 years, Occ. Nil,
      R/o Bobde Colony, Tq.Khamgaon,
      Distt. Buldana.                                                         RESPONDENTS
                      Shri S.V. Sirpurkar, Counsel for the petitioner.
         Shri P.S. Tembhare, Additional Public Prosecutor for the respondent no.1.

                                      CORAM :SMT.VASANTI  A  NAIK AND
                                                    M.G. GIRATKAR, JJ.                

DATE : 8 TH AUGUST, 2017.

ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)

The criminal application is ADMITTED and heard finally with

the consent of the learned counsel for the parties.

2. By this criminal application, the applicant seeks the quashing

of the first information report registered against the applicant for the

offences punishable under Section 306 read with Section 34 of the Penal

Code.

3. Few facts giving rise to the filing of the application are stated

thus:-

APL 90/17 2 Judgment

Sunil Tale had committed suicide on 02.06.2016 and a report

that the death was accidental was registered under Section 174 of the

Code of Criminal Procedure. It is alleged that two months later, the

widow of the deceased, Suvarna Tale, lodged a report with the police

station officer Khamgaon that she had found a suicide note written by her

deceased husband. It was stated in the report that it was stated by the

deceased in the suicide note that the applicant and two others had

secured a sum of Rs.80,00,000/- from the deceased with a promise that a

sum of Rs.2,00,00,000/- would be paid to him. It is stated in the report

that since the applicant neither returned the amount that was paid to him

nor paid a sum of Rs.2,00,00,000/- to the deceased, the deceased had

committed suicide. According to the applicant, since the ingredients of

the offence of abetment to commit suicide are not made out, even if the

complaint is considered at its face value, the first information report

lodged against the applicant is liable to be quashed and set aside.

4. Shri Sirpurkar, the learned counsel for the applicant,

submitted by taking this Court through the provisions of Section 107 of

the Penal Code that for making out a case of abetment of doing of an act

or thing, there should be an instigation by the person against whom the

said offence is alleged. It is stated that for making out a case of abetment,

instigation, conspiracy or intentional aid as provided by the provisions of

APL 90/17 3 Judgment

Section 107 of the Penal Code would be necessary. It is stated that the

widow of the deceased has only stated in the first information report that

the applicant had secured a sum of Rs.40,00,000/- from the deceased

with a promise to return Rs.1,00,00,000/- to him and the applicant did

not return either a sum of Rs.1,00,00,000/- or the amount paid to him. It

is stated that it is mentioned in the alleged suicide note that the applicant

was avoiding the deceased and hence, the deceased had committed

suicide. It is stated that on a reading of the provisions of Section 107 of

the Penal Code, it is clear that on the basis of the facts stated in the first

information report or the material available, i.e. the alleged suicide note,

the ingredients of the offence punishable under Section 107 of the Penal

Code cannot be made out. The learned counsel relied on the judgments

of the Hon'ble Supreme Court reported in (2011) 3 SCC 626 (M.Mohan

Versus State represented by the Deputy Superintendent of Police), (2002) 5

SCC 371 (Sanju alias Sanjay Singh Sengar Versus State of M.P.) and the

judgment of the Bombay High Court reported in 2014 All M.R.

(Criminal) 1216 (Binod s/o Ratan Sarkar & Others Versus The State of

Maharashtra & Another) to substantiate his submission.

5. Shri Tembhare, the learned Additional Public Prosecutor

appearing on behalf of the respondent no.1, submitted that the offence

was registered against the applicant under Section 306 of the Penal Code

APL 90/17 4 Judgment

on the basis of the first information report lodged by the widow of the

deceased and the suicide note left behind by the deceased as also the

statements made by certain persons who were aware about the

transaction between the applicant and the deceased. The learned

Additional Public Prosecutor sought for the dismissal of the criminal

application.

6. We have perused the first information report lodged by the

widow of the deceased. In the first information report, it is stated that

before committing suicide the deceased had left behind a suicide note in

which it was penned that the applicant and two others, had secured a

sum of Rs.80,00,000/- from the deceased with a promise to return a sum

of Rs.2,00,00,000/- to him. It is stated in the report that since the

applicant and the two others had refused to return the amount secured

from the deceased as also the amount that was promised to be paid, the

deceased had committed suicide. We have perused the alleged suicide

note. The said note only recites that a sum of Rs.40,00,000/- was secured

by the applicant from the deceased with a promise to return a sum of

Rs.1,00,00,000/- to him. It is stated in the suicide note that after

securing an amount of Rs.40,00,000/- from the deceased, the applicant

was avoiding the deceased. It is also stated in the suicide note that since

the applicant and some other persons were not returning the amount and

APL 90/17 5 Judgment

were avoiding him, he was constrained to commit suicide. Some persons

from Khamgaon had stated in the recorded statements that they were

aware about the transaction between the applicant and the deceased and

that the applicant had not returned the money of the deceased. On a

perusal of the aforesaid material, which is the only material available with

the police station officer for registering the crime against the applicant for

the offence punishable under Section 306 of the Penal Code, it appears

that by no stretch of imagination an offence could be registered against

the applicant under Section 306 of the Penal Code. It would be necessary

to consider the provisions of Section 107 of the Penal Code which refer to

the abetment of the act or a thing. Section 107 of the Penal Code reads

thus:-

"107. Abetment of a thing. - A person abets the doing of a thing, who--

First. - Instigates any person to do that thing; or Secondly. - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly. - Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1. - A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

APL 90/17 6 Judgment

Explanation 2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."

It is apparent from a reading of the provisions of Section 107 of the Penal

Code that in order to constitute abetment, the abettor must have

intentionally abetted the commission of the crime. The intention or mens

rea is necessary for constituting abetment under Section 107 of the Penal

Code. It is held by the Hon'ble Supreme Court in the judgment in the

case of M. Mohan Versus State represented by Deputy Superintendent of

Police, reported in (2011) 3 SCC 326 that abetment involves mental

process of instigating or intentionally aiding a person of doing a thing.

The Hon'ble Supreme Court went on to add that there should be a clear

mens rea to commit an offence under Section 306 of the Penal Code as

the said provision requires the commission of a direct or active act by the

accused which leads the deceased to commit suicide, seeing no other

option and such act must be intended to push the victim into a position

that he commits suicide. In the instant case, all that is stated in the first

information report filed by the widow of the deceased is that the

applicant had secured a sum of Rs.40,00,000/- from the deceased with a

promise to return a sum of Rs.1,00,00,000/-. The said fact is also stated

in the alleged suicide note written by the deceased before committing

suicide. The statements recorded by the Investigating Officer only show

APL 90/17 7 Judgment

that those persons were aware about the monetary transaction between

the applicant and the deceased. The entire material available with the

police station officer does not show that any act was actively or directly

committed by the applicant with an intention that the deceased should

commit suicide. Since abetment involves the mental process of

instigating or intentionally aiding a person in doing a thing and since on

scanning the entire material on which the first information report is

registered, it cannot be said that the applicant had instigated, conspired

or intentionally aided the suicide by the deceased, a first information

report could not have been registered against the applicant under Section

306 of the Penal Code.

It is well settled by a catena of judgments of the Hon'ble

Supreme Court that where the allegations made in the first information

report, even if they are taken at their face value and accepted in the

entirety do not constitute an offence or make out a case against the

accused, the Court would in its inherent powers under Section 482 of the

Code of Criminal Procedure, exercise the power under the said provisions

for quashing the first information report or the proceedings against the

accused. In view of the law laid down by the Hon'ble Supreme Court in

the case of State of Haryana Versus Bhajanlal, reported in (1992) SCC

Criminal 426 and reiterated in the judgments in the cases of State of

Andhra Pradesh Versus Golkonda Lingaswami reported in (2004) SCC

APL 90/17 8 Judgment

(Cri) 1805 and Zandu Pharmaceutical Works Limited Versus

Mohd.Sharaful Haque reported in (2005) 1 SCC 122, we have no manner

of doubt that the first information report registered against the applicant

for an offence punishable under Section 306 read with Section 34 of the

Penal Code is liable to be quashed and set aside.

7. Hence, for the reasons aforesaid, the criminal application is

allowed. The first information report lodged by the respondent no.1

against the applicant for an offence punishable under Section 306 read

with Section 34 of the Penal Code, as also the proceedings arising

therefrom are quashed and set aside.

Order accordingly. No costs.

              JUDGE                                          JUDGE
APTE