Sheshrao S/O Mahadu Babar And 5 ... vs The State Of Mah. Thr. Its P.S.O. ...
2017 Latest Caselaw 9633 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR.
                  CRIMINAL WRIT PETITION NO. 686/2009
1.      Sheshrao s/o Mahadu Babar,
        aged about 57 years, Occupation : Agriculturist.
2.      Ashok Shankarrao Babar,
        aged about 45 years, Occupation : Agriculturist.
3.      Raju Keshaorao Babar,
        aged about 37 years. Occupation : Agriculturist.
4.      Pravin Manikrao Naik,
        aged about 39 years, Occupation : Agriculturist.
5.      Prakash Haribhau Yelekar,
        aged about 55 years, Occupation : Service.
6.      Kisan Gorba Rathod,
        aged about 56 years, Occupation : Service.
No. 1 to 4 all residents of Shivaji Ward, Pusad,
district : Yavatmal.
No.5 resident of Patre Layout, Karla Road,
Pusad, district : Yavatmal.
No.6 resident of Behind Gunwantrao Deshmukh
B.Ed. College, Kawdapur, Tahsil Pusad,
district : Yavatmal.                                                                 PETITIONERS
                                       .....VERSUS.....
1.      The State of Maharashtra,
        through its P.S.O. City Pusad,
        District : Yavatmal.
2.      Diwakar Sambha Palikondawar,
        aged about 54 years, Occupation : Agriculturist,
        resident of Hatkeshwar Ward, Pusad,
        Tahsil Pusad, district : Yavatmal.                                         RESPONDE
                                                                                            NTS

Mr. Sumit Joshi, counsel for the petitioner. 
Mr. A.M. Joshi, Additional Public Prosecutor for the respondent no.1.
Mr. R.G.Kavimandan, Mr. D.R.Khapre, Mr.A.S.Shukla, counsel for the respondent no.1.

                                           CORAM : REVATI MOHITE DERE, J.

                                            DATE        :          14  TH      DECEMBER,   2017.
P.C. 

2. By this petition, the petitioners have impugned the order

dated 12.05.2008 passed by the learned Judicial Magistrate First Class,

Pusad in Regular Criminal Case No.428/2006, by which the learned

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Magistrate was pleased to issue process as against the petitioners for the

offence punishable under Section 306 read with Section 34 of I.P.C.; as

well as the judgment and order dated 12.10.2009 passed by the learned

Additional Sessions Judge, by which the petitioners' Criminal Revision

No.29/2008 was dismissed.

2. Learned counsel for the petitioners assailed both the

impugned orders passed by the learned Magistrate as well as the

Revisional Court, on several grounds. He submitted that taking the

complaint/case as it stands, no offence as alleged under Section 306 read

with Section 34 of I.P.C. is disclosed qua any of the petitioners. Learned

counsel for the petitioners also relied on the statement of Diwakar

Palikondawar (complainant) in support of his submission to show, that

infact, Kalidas (deceased) had committed suicide, as the police had

refused to register his complaint against the petitioners. Learned counsel

for the petitioners relied on the following judgments in support of his

submissions.

I) Sanju @ Sanjay Singh Sengar Versus State of Madhya Pradesh, reported in 2002 Cri.L.J. 2796.

II) Dilip s/o Ramrao Shirasao & Ors. Versus State of Maharashtra & Anr., reported in 2016 All MR (Cri) 4328. III) S.S. Chheena Versus Vijay Kumar Mahajan & Anr., reported in 2010 All MR (Cri) 3298 (S.C.).

IV) Madan Mohan Singh Versus State of Gujarat & Anr., reported in 2010 All MR (Cri) 3245 (S.C.).

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V)            State   of   Kerala   &   Others     Versus     S.   Unnikrishnan   Nair   &
Others, reported in AIR 2015 SC 3351.

3. Learned counsel for the respondent no.2 opposed the petition.

According to the learned counsel for the respondent no.2-complainant,

the petitioners instigated Kalidas to commit suicide, by their conduct and

as such, abetted the commission of the offence punishable under Section

306 of I.P.C. Kalidas. He submitted that no interference was warranted in

the impugned order of issue process passed by the learned Judicial

Magistrate First Class and confirmed by the revisional Court. Learned

counsel for the respondent no.2 relied on the following judgments.

I) Chitresh Kumar Chopra Versus State (Government of NCT of Delhi), reported in (2009) 16 SCC 605.

II) State of Haryana Versus Surinder Kumar, reported in (2000) 10 SCC 337.

4. Perused the papers as well as the impugned orders. The

petitioner nos.1 to 4 are agriculturists and owners of land, which is

adjacent to the land owned by Kalidas (deceased). The petitioner nos.5

and 6 are government servants, i.e. Land Surveyors serving in the Land

Record Office, at Pusad, at the relevant time. On 09.12.2005, at 12 noon

measurements for demarcation of land was being carried out, at the

boundary of the land belonging to the petitioner nos.1 to 4 and Kalidas

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(deceased). The said work of demarcation was being carried out by the

petitioner nos.5 and 6. It appears that when the complainant and Kalidas

reached the said spot, there was some verbal altercation between

petitioner nos.1 to 4 on the one side and Kalidas (deceased) on the other.

On 10.12.2005, deceased Kalidas committed suicide by setting himself

ablaze. Pursuant thereto, the respondent no.2 lodged a complaint with

the Pusad Police Station, as against the petitioners, being CR No.3/2006.

After investigation, police filed 'A' Summary report in the Court of the

learned Magistrate. Admittedly, no protest petition was filed by the

respondent no.2, against the said 'A' summary report filed by the police in

CR No.3/2006. Infact, the respondent no.2 withdrew the writ petition

filed by him in this Court with liberty to file appropriate proceedings

against the petitioners. On 24.11.2006, the respondent no.2 filed a

private criminal complaint in the Court of the learned Judicial Magistrate

First Class, Pusad as against the petitioners. The said complaint was

registered as Regular Criminal Case No.428/2006. The learned

Magistrate proceeded to record the verification statement of the

respondent no.2 and examined three witnesses, i.e. the complainant

(respondent no.2) himself; Shankar Bijolo, Naib Tahsildar, who recorded

the statement of deceased Kalidas; and PW3-Dr.Jaikumar Naik, the

Medical Officer serving in Sub-District Hospital, Pusad, in whose

presence, the statement (dying declaration) of Kalidas was recorded.

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Pursuant thereto, the learned Judicial Magistrate First Class, vide order

dated 12.05.2008 issued process against all the petitioners for the alleged

offence punishable under Section 306 read with 34 of I.P.C. The said

order issuing process was challenged by the petitioners in revision, i.e.

Criminal Revision No.29/2008 and the learned Additional Sessions Judge,

Pusad, vide judgment and order dated 12.10.2009 was pleased to dismiss

the said revision and directed the Judicial Magistrate First Class, Pusad to

proceed with the complaint in accordance with law. Hence, this

petition.

5. The question that arises for consideration in the present

petition is, whether taking the case as it stands, an offence under Section

306 read with Section 34 is disclosed qua the petitioners? A perusal of

the complaint lodged by the respondent no.2 reveals that there was some

land dispute with respect to the boundaries, between the petitioner nos.1

to 4 and deceased Kalidas (respondent no.2's brother). It is stated in the

said private complaint filed by the respondent no.2, that twice

measurements were done and that the said measurements were in favour

of deceased Kalidas and that, when the third measurement was done, at

the behest of the petitioner nos.1 to 4, no notice was given to deceased

Kalidas regarding the survey/measurement to be carried out, on

09.12.2005. According to the respondent no.2-Complainant, the incident

took place on 09.12.2005 at 12.00 noon. He has alleged that when

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Kalidas (deceased) learnt about the measurements being carried out in

the fields, he (complainant) and Kalidas went to the spot to verify the

same. He has alleged that when Kalidas questioned the petitioners, the

petitioner no.2 asked the petitioner no.6 to continue with the

measurement and stated that Kalidas (deceased) was in the habit of

protesting and further stated that the measurement report should be

prepared in their favour. The respondent no.2 (complainant) has further

alleged that the petitioner nos.1 to 4, angrily stated that if they objected

to the measurement, they would be done away with. According to the

respondent no.2 (Complainant), being afraid of the same, they returned

home. The respondent no.2 has further alleged that deceased Kalidas

was under tremendous mental pressure and that he tried to explain and

make him understand, that nobody could take away his right by force

and that he should not be afraid. He has further stated that as Kalidas

(deceased) had undergone bypass surgery, he was advised to take daily

morning walk and accordingly, he left home for his morning walk on

10.12.2005 at about 5.00 p.m. He has further stated that at around 6.45

a.m., he received a call from the hospital stating that Kalidas was

admitted to the hospital and that he was serious, pursuant to which, he

reached the hospital at around 7.00 a.m. He has further stated that

when he reached the hospital, he learnt that Kalidas had set himself

ablaze and that he had sustained 80% burn injuries on his person. He

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also learnt that Kalidas had written one chit and that the said chit was

with the police. According to the complainant, the statement of Kalidas

was recorded by the Naib Tahsildar in the presence of the Doctor, in

which Kalidas had stated that being fed up with the trouble which he

experienced during the measurement of the land, he had set himself

ablaze. According to the respondent no.2-complainant, the petitioners

were responsible for Kalidas committing suicide and that the petitioners

had instigated Kalidas to commit suicide. Kalidas succumbed to his burn

injuries on 01.01.2006.

6. In order to attract the penal provision under Section 306 of

I.P.C., one would have to consider, whether any of the ingredients of

Section 107 of I.P.C. are attracted, in the facts of the present case.

Section 107 reads as under:-

"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.

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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." (Emphasis supplied)

7. The word 'instigate' means to provoke, incite, urge on or bring

about by persuasion to do any thing. The Apex Court in the case of Sanju

@ Sanjay (Supra) has observed that even the words uttered by the

accused asking the deceased to 'go and die' would not constitute an

offence under Section 306. In Sanju @ Sanjay (Supra), a quarrel had

taken place between the deceased and the accused therein, in which the

accused had uttered the words "go and die" and the deceased had

committed suicide after two days of the quarrel. The Apex Court

observed that the suicide was not a direct result of the said quarrel and

accordingly, quashed the charge-sheet as against the accused therein.

8. It is pertinent to note, that in the case of Madan Mohan Singh

(Supra), the Apex Court has observed in paragraphs 10 and 11 as under:-

"10. As regards the suicide note, which is a document of about 15 pages, all that we can say is that it is an anguish expressed by the driver who felt that his boss (the accused) had wronged him. The suicide note and the FIR do not impress us at all. They cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide. If

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the prosecutions are allowed to continue on such basis, it will be difficult for every superior officer even to work.

11. It was tried to be contended by the learned counsel appearing on behalf of the complainant that at this stage, we should not go into the merits of the FIR or the said suicide note. It is trite law now that where there is some material alleged in the FIR, then such FIR and the ensuing proceedings should not be quashed under Section 482 Cr.P.C. It is for this reason that we very closely examined the FIR to see whether it amounts to a proper complaint for the offence under Sections 306 and 294(b) IPC. Insofar as Section 294(b) IPC is concerned, we could not find a single word in the FIR or even in the so-called suicide note.

Insofar as Section 306 IPC is concerned, even at the cost of repetition, we may say that merely because a person had a grudge against his superior officer and committed suicide on account of that grudge, even honestly feeling that he was wronged, it would still not be a proper allegation for basing the charge under Section 306 IPC. It will still fall short of a proper allegation. It would have to be objectively seen whether the allegations made could reasonably be viewed as proper allegations against the appellant/accused to the effect that he had intended or engineered the suicide of the concerned person by his acts, words etc. When we put the present FIR on this test, it falls short. We have already explained that the baseless and irrelevant allegations could not be used as a basis for prosecution for a serious offence under Section 306 IPC. Similarly, we have already considered Section 294 (b) IPC also. We have not been able to find anything. Under such circumstances, where the FIR itself does not have any material or is not capable of being viewed as having material for offence under

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Sections 306 and 294(b) IPC, as per the law laid down by this Court in State of Haryana & Ors. Vs. Bhajan Lal & Ors. [1992 Suppl. 1 SCC 335], it would be only proper to quash the FIR and the further proceedings."

In Madan Mohan Singh (Supra), the petitioner was working as a D.E.T. in

Ahmedabad Bharat Sanchar Nigam Limited. The deceased, i.e.

Deepakbhai had committed suicide, pursuant to which his wife had

registered an F.I.R. as against the petitioner therein. The prosecution had

relied on the suicide note of the deceased wherein, it was stated that the

petitioner was responsible for his death. It is in these circumstances, that

the Apex Court observed as above in paragraphs 10 and 11.

9. Similarly, in the case of S.S. Chheena (Supra), the Apex Court

in paragraphs 27 to 30 observed as under:-

"27. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) (2009) 16 SCC 605 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

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28. 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. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person 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 no option and that act must have been intended to push the deceased into such a position that he committed suicide.

29. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.

30. When we carefully scrutinize and critically examine the facts of this case in the light of the settled legal position the conclusion becomes obvious that no conviction can be legally sustained without any credible evidence or material on record against the appellant. The order of framing a charge under section 306 IPC against the appellant is palpably erroneous and unsustainable. It would be travesty of justice to compel the appellant to face a criminal trial without any credible material whatsoever. Consequently, the order of framing charge under section 306 IPC against the appellant is quashed and all proceedings pending against him are also set aside."

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In S.S. Chheena (Supra), there was a dispute between one Saurav

Mahajan and Harminder Singh with regard to theft of a mobile phone.

When the said fact was brought to the notice of M.D. Singh, the then

Head of the Law Department, he asked both the students to give their

versions in writing with regard to the said incident. The deceased and

Harminder Singh gave their written versions of the incident and

thereafter M.D. Singh forwarded their versions to the University

authorities for taking necessary action. Pursuant thereto, an enquiry

was conducted on 13.10.2003 by the Security Officer of the University,

viz. Mr.S.S. Chhema. During the course of enquiry, the deceased

committed suicide by jumping infront of the train, leaving behind

the suicide note. On the basis of the suicide note, the father of the

deceased lodged a complaint as against Harminder Singh for the alleged

offence punishable under Section 306 of I.P.C. During the course of trial,

Mr.S.S. Chheena was also impleaded as accused. Being aggrieved by the

said framing of charge, the Mr.S.S. Chheema approached the High Court

and on its refusal to intervene, the Apex Court. It is in these

circumstances, the Apex Court observed in paragraphs 27 to 30 as

aforesaid.

10. The facts in the present case do not in any way attract the

ingredients of Section 107 of I.P.C., i.e. there is nothing to show, that the

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petitioners instigated Kalidas to commit suicide by their conduct or

otherwise. The respondent no.2 in his statement, recorded by the

Magistrate, has infact stated, that the incident had taken place on

09.12.2005 at about 12 noon; that, the petitioners threatened him and

Kalidas (deceased) with dire consequences; that pursuant thereto,

they returned home, after which he tried to explain to Kalidas that he

could take appropriate legal action against the petitioners; that as

Kalidas had undergone bypass surgery, he went for his morning walk at

5.00 a.m. on 10.12.2005; and that he learnt that his deceased brother

Kalidas had gone to the police station for lodging a report, however, on

refusal by the police to register the report, Kalidas came to Mukhare

square and committed suicide by setting himself ablaze. He has

further stated that the police extinguished the fire and took Kalidas to

the hospital. The said statement of the respondent no.2 infact shows,

that Kalidas had gone to lodge a report as against the petitioners with

the police station and on refusal of the police to register a report, had

come out and committed suicide by setting himself ablaze. Considering,

the facts of the case, it is difficult to come to the conclusion even

prima-facie, that the petitioners in anyway abetted, Kalidas' suicide.

The judgments relied on by the learned counsel for the respondent no.2

are clearly distinguishable and do not apply to the facts of the present

case.

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11. It is no doubt an unfortunate incident, but the fact remains,

that the incident which had taken place on the previous date, in which

the petitioner nos.1 to 4 allegedly threatened Kalidas, had no direct nexus

with Kalidas committing suicide on the next day, inasmuch as, it appears

that Kalidas committed suicide on the next date as the police refused to

register a report as against the petitioners. Under these circumstances, no

offence as alleged under Section 306 read with Section 34 of I.P.C. is

disclosed as against the petitioner nos.1 to 4, much less against the

petitioner nos.5 and 6.

12. Accordingly, the petition is allowed. The impugned order

dated 12.05.2008 passed by the learned Judicial Magistrate First Class,

Pusad in Regular Criminal Case No.428/2006 and the judgment dated

12.10.2009 passed by the learned Additional Sessions Judge in Criminal

Revision No.29/2008 are quashed and set aside. Consequently, the

proceedings initiated vide Regular Criminal Case No.428/2006 pending

on the file of Judicial Magistrate First Class, Pusad stand dismissed. Rule

is made absolute in the aforesaid terms. Accordingly, the petition is

disposed of. There shall be no order as to costs.

JUDGE

APTE