Bombay High Court

1. Ravindra Bhimrao Khillare vs 1. The State Of Maharashtra on 6 June, 2017

Bench: S.S. Shinde

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


               CRIMINAL APPLICATION NO.3807 OF 2016


 1) Ravindra s/o Bhimrao Khillare,
    Age-36 years, Occu:Labour,

 2) Seema w/o Ravindra Khillare,
    Age-30 years, Occu:Household,

 3) Deepak s/o Bhimrao Khillare,
    Age-28 years, Occu:Labour,

 4) Kalpana w/o Deepak Khillare,
    Age-23 years, Occu:Household,

      All R/o- Bagsher Jung,
     Near Rama Nagar, Darga Road,
     Kranti Chowk, Aurangabad,
     Dist-Aurangabad.
                                 ...APPLICANTS
                      
        VERSUS             

 1) The State of Maharashtra,
    Through Police Station,
    Osmanpura, Aurangabad,
    Dist-Aurangabad,

 2) Jilabai w/o Atmaram Ingale,
    Age-60 years, Occu:Household,
    R/o-Galli No.2, Rama Nagar,
    Osmanpura, Aurangabad.   
                                 ...RESPONDENTS




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                      ...
    Mr.S.J. Salunke Advocate for  Applicants.
    Mr.P.G. Borade, A.P.P. for Respondent No.1.
    Mr.S.G. Ladda Advocate for Respondent No.2. 
                      ...

               CORAM:   S.S. SHINDE AND
                        K.K. SONAWANE, JJ.

DATE OF RESERVING JUDGMENT : 4TH APRIL,2017.

DATE OF PRONOUNCING JUDGMENT: 6TH JUNE, 2017.

JUDGMENT [PER S.S. SHINDE, J.]:

1. Rule. Rule made returnable forthwith and

heard finally with the consent of the learned

counsel appearing for the parties.

2. By way of filing this Application, the

Applicants have prayed that the First Information

Report No.78 of 2016 dated 15th April, 2016

registered with Police Station, Osmanpura,

Aurangabad for the offence punishable under

Section 306 read with Section 34 of the Indian

Penal Code, may be quashed and set aside.

3. Respondent No.2 herein - Jijabai w/o

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Atmaram Ingale, who is mother of deceased

Chandrakant, lodged First Information Report

stating therein that, her married son Chandrakant

was a practicing as an Advocate. He was blessed

with a son namely Vaibhav and a daughter namely

Ranjandini.

. On 5th April, 2016, during morning hours,

wife of Chandrakant saw her husband in a hanging

condition to a roof of room situate in their own

house. He was removed from the house and was taken

to the hospital. When he was hospitalized, a chit

was found in his pocket. It was written in the

said chit/note that, an accused Ravindra, Deepak

and their wives i.e. Applicant Nos.2 and 4, with

co-accused Prakash are responsible for his

commission of suicide. All of them harassed him

for repayment of money, and also threatened to

kill him. Due to said harassment by the accused

persons, he is committing suicide. On the back

side of the said chit, it was written, that the

accused persons gave him money on condition of

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paying the same back to them with interest. Though

the said amount was repaid with interest, again

demand was made by them, and cheque was obtained

from Chandrakant and also undertaking was taken on

the bond. On 4th April, 2016, Deepak snatched

mobile from him. The informant further alleged

that, the accused with an intention that

Chandrakant should commit suicide, instigated an

act of commission of suicide by Chandrakant and

ultimately Chandrakant committed suicide, and died

on 12th April, 2016. On the basis of an aforesaid

information Crime was registered against five

accused persons including the present Applicants

for the offence punishable under Section 306 read

with 34 of the Indian Penal Code (for short "I.P.

Code").

4. Hence this Application is filed by the

Applicants, for quashing the First Information

Report.

5. Learned counsel appearing for the

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applicants submitted that, the police ought not to

have registered the crime under Section 306 of the

I.P. Code. Merely being named in the alleged

suicide note, one shall not immediately jump to

the conclusion that a person is an offender. There

must be an intentional aiding to the commission of

suicide by the accused. The contents of the

suicide note and other attending circumstances

have to be examined so as to find out, whether the

act/acts of the accused would constitute an

abetment, instigation or intentional aiding

within the meaning of Section 107 of the I.P.

Code, so as to constitute an offence punishable

under Section 306 of I.P. Code.

6. Learned counsel further submitted that

Chandrakant died on 12th April, 2016, and the

First Information Report was lodged on 15th

April, 2016. There is delay in lodging the First

Information Report which is not explained by the

informant. Thus an allegations levelled against

the Applicants are the result of due deliberation

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and concoction.

7. Learned counsel further submitted that

the Applicants never lend any amount on the basis

of repayment of said amount on interest basis to

deceased Chandrakant. Applicants are not involved

in any money lending business. It is submitted

that deceased Chandrakant was practicing as an

Advocate in the Civil and Criminal Court at

Aurangabad. One Subhash Sukhdeo Jadhav is the

relative of accused Ravindra. Subhash was in jail

in connection with the offence of rape. Accused

Ravindra was acquainted with deceased Chandrakant

being a lawyer. The merits of bail application of

Subhash Jadhav were discussed with deceased

Chandrakant. It is submitted that, Chandrakant

taken exorbitant amount of Rs.60,000/- from Subash

Jadhav. An amount of Rs.60,000/- paid to

Chandrakant was demanded by accused Ravindra, as

Subhash was not released on bail. It is submitted

that the cheque of Rs.60,000/- was issued by

deceased Chandrakant in favour of accused

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Ravindra. However when the cheque was presented,

it was dishonoured for not having sufficient

funds.

8. Learned counsel for the Applicants

submits that deceased Chandrakant was addicted to

bad vices. He borrowed huge amount from many

people, but was unable to repay the same. His

family life was also disturbed due to his bad

habits and huge debt incurred by him. Due to the

huge debt and family problems, Chandrakant

committed suicide. It is submitted that only being

relatives of accused No.1 Ravindra, rest of the

accused are roped into an alleged offence. It is

submitted that, alleged note written by

Chandrakant before commission of suicide is

fabricated document, and no reliance whatsoever

can be placed on contents of the said chit.

9. Learned counsel appearing for the

Applicants submits that, even if an allegations in

the First Information Report are taken at its face

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value and read in its entirety, prima facie

alleged offences have not been disclosed against

the Applicants. An allegations against the

Applicants are so absurd that no prudent person

would believe the same. The continuation of the

criminal proceedings on the basis of the First

Information Report which is lodged against the

Applicants only with a view of wrecking vengeance,

would be sheer abuse of the process of law, and

ultimately, trial would not result into

conviction of the Applicants.

10. Learned counsel submitted that an

abetment involves mental process of an instigation

or intentionally aiding person to do certain

thing. Some positive act by accused is essential

to constitute abetment. In support of aforesaid

submission, the learned counsel placed reliance on

the law laid down by the Supreme Court in the case

of Gangula Mohan Reddy vs. State of A.P. 1 Learned

counsel further submitted that merely on

1 2010 Cri. L.J. 2110

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allegations of harassment without there being any

positive action proximate to time of occurrence on

the part of accused which led or compelled person

to commit suicide, conviction in terms of Section

306 of the I.P. Code is not sustainable. In

support of his submissions, learned counsel placed

reliance on the ratio laid down in the case of

Vijay @ Munna Bharat Gurkhde vs. State of

Maharashtra2. Learned counsel in support of his

submissions that persistent demand made by the

accused who claim that they are entitled to

recover money from any other person, cannot be

equated to an overt act as understood in Section

107 of the I.P. Code, placed reliance on the ratio

laid down in the case of Santosh Nathulmal Goenka

and another vs. State of Maharashtra, through its

P.S.O.3 Learned counsel further submitted that, to

constitute an offence under Section 306 of I.P.

Code, it is necessary for prosecution to at-least

prima facie establish that the accused had an

intention to aid the deceased to commit suicide. 2 2014(4) Bom.C.R.(Cri.)72 3 2010(1) Bom.C.R.(Cri.) 233

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In absence of availability of such material, the

Applicants cannot be compelled to undergo ordeal

of trial. In support of his aforesaid

submissions, learned counsel placed reliance on

the law laid down in the case of Binod Ratan

Sarkar vs. State of Maharashtra4.

11. Therefore, relying upon the averments in

the Application, grounds taken therein, learned

counsel appearing for the Applicants submits that

the Application deserves to be allowed.

12. Learned A.P.P. appearing for the State,

relying upon the investigation papers and in

particular the contents of the First Information

Report, submits that an ingredients of alleged

offences have been clearly attracted on reading

the allegations in its entirety. It is submitted

that an allegations in the First Information

Report will have to be taken as it is and can be

tested only during trial. It is submitted that in

4 2014 All M.R.(Cri.) 1216.

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the suicide note the deceased has named the

Applicants. It is submitted that the Investigating

Officer has recorded statements of various

witnesses during the course of investigation and

also collected incriminating material and on the

basis of said material trial can proceed.

Therefore, he submits that the Application may be

rejected.

13. Learned counsel appearing for Respondent

No.2 submits that, an allegations in the First

Information Report will have to be taken as it is

and appreciation of those allegations or

statements of witnesses even in a summary manner

is not permissible, when there is a prayer for

quashing the First Information Report. He invites

our attention to the affidavit in reply filed on

behalf of Respondent No.2 and submits that the

Application filed by the Applicants is absolutely

erroneous, illegal and same is not maintainable at

all. Applicants have incorporated factual points

in the Application, and those points unless

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subjected to the test in the trial can not be

decided in either way. Therefore he submits that

in view of the position of law, the Application

deserves to be dismissed in limine. It is further

submitted that the deceased Chandrakant prior to

the registration of crime, has lodged a complaint

with the Police Station, Osmanpura, Aurangabad

against the Applicants and others complaining

about the harassment and threats given to him. It

is further submitted that deceased Chandrakant

left a suicide note, which prima facie indicates

the commission of cognizable offence. It is

further submitted that the decision over the facts

involved, needs full fledged trial. The complaint

cannot be thrown away at the threshold and that

too by using the extra ordinary and/or inherent

powers by this Court. In support of contentions

raised during the course of arguments, learned

counsel appearing for Respondent No.2 placed

reliance upon the judgments of the Supreme Court

in the cases of (i) Didigam Bikshapathi and anr

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V/s State of A.P.5, (ii) The State of Punjab V/s

Iqbal Singh and others6, (iii) Surender V/s

State of Haryana7, (iv) Kishori Lal V/s State of

M.P.8, (v) Brij Lal V/s Prem Chand and another 9,

and (vi)Dammu Sreenu V/s State of A.P.10.

Therefore, relying upon the averments in the

affidavit in reply, annexures thereto and also

investigation papers, learned counsel submits that

the Application may be rejected.

14. We have given careful consideration to

the submissions advanced by learned counsel

appearing for the Applicants, learned A.P.P.

appearing for Respondent No.1/State and learned

counsel appearing for Respondent No.2. With their

able assistance, we have carefully perused the

averments and grounds taken in the application,

contents of the first information report, reply

filed by Respondent No.2 and investigation papers.

 5    2008 Cri. L.J. 724
 6    1991 Cri. L.J. 1897
 7    2007 Cri. L.J. 779
 8    AIR 2007 SC 2457
 9    AIR 1989 SC 1661
 10   2009 Cri.L.J. 3728


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Upon careful perusal of the contents of the first

information report and also the chit recovered

from the pocket of deceased Chandrakant, it is

abundantly clear that, the names of Applicant no.1

- Ravindra Bhimrao Khillare and Applicant no.3 -

Deepak Bhimrao Khillare are mentioned in the first

information report. Not only that, it is stated in

the said chit that, due to severe harassment given

by the accused, he is committing suicide. There is

specific overt act attributed to Applicant No.3 -

Deepak Bhimrao Khillare that, on 4th April, 2016,

he snatched mobile phone from the custody of

Chandrakant (deceased) and Chandrakant committed

suicide on 5th April, 2016.

15. Respondent No.2 has filed affidavit in

reply and along with the said affidavit in reply,

there is one application addressed by Chandrakant

(now deceased) to the Police Inspector, Osmanpura

Police Station, Aurangabad. In the said

application, the name of present Applicant No.3 -

Deepak Bhimrao Khillare is mentioned. It further

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appears that, on the basis of the said

application, Crime No.333/2014 came to be

registered with Police Station, Osmanpura,

Aurangabad (City) on 29th November, 2014 at 11.30

a.m. Therefore, the question of entertaining the

application of Applicant No.3 Deepak Bhimrao

Khillare does not arise. So far as Applicant No.1

- Ravindra Bhimrao Khillare is concerned, he is

specifically named in the note written by

Chandrakant before committing suicide. Therefore,

the application of Applicant No.1 - Ravindra

Bhimrao Khillare deserves no consideration.

16. So far as Applicant No.2 - Seema Ravindra

Khillare and Applicant No.4 - Kalpana Deepak

Khillare are concerned, their names are not

mentioned in the first information report. It is

only mentioned that, they are wife of Ravindra

Bhimrao Khillare and wife of Deepak Bhimrao

Khillare, respectively. There is no specific overt

act attributed to them. Upon careful perusal of

the entire investigation papers, except statements

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of the witnesses, that too without mentioning the

names of the Applicant No.2 and Applicant No.4,

there are general allegations against them. Upon

close scrutiny of the allegations in the first

information report, contents of the chit i.e.

Suicide Note, and investigation papers, so far as

Applicant No.2 Seema Ravindra Khillare and

Applicant No.4 Kalpana Deepak Khillare are

concerned, there is no nexus between so called

commission of suicide by Chandrakant and the

general allegations made against them. Therefore,

there is no material suggesting any instigation,

abetment or intentional aid on the part of

Applicant Nos.2 and 4 in commission of suicide by

Chandrakant.

17. The Supreme Court in the case of S.S.

Chheena V/s Vijay Kumar Mahajan and another 11, in

para 25 observed that, the abetment involves

mental process of instigating a person or

intentionally aiding a person in doing of a thing.

11 (2010) 12 SCC 190

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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 of the I.P. Code 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/she

committed suicide.

18. The Supreme Court in the case of Madan

Mohan Singh V. State of Gujarat and another 12,

while explaining the scope of Sections 306 and

294, in the facts of that case, in para 9 held

thus:-

"It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and,

12 2010 AIR SCW 5101

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therefore, abet the offence. In fact, there is no nexus between the so-called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306, IPC, much more material is required. The Courts have to be extremely careful as the main person is not available for cross-examination by the appellant/accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the appellant/accused to face the trial. A criminal trial is not exactly a pleasant experience. The person like the appellant in present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature."

19. In the case of Dilip s/o Ramrao Shirasao

and others vs. State of Maharashtra and another

(Criminal Application No.332 of 2016) decided on

5th August, 2016, the Division Bench of the Bombay

High Court, Bench at Nagpur considered the various

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Judgments of the Supreme Court and the High Court

and in Para 20 of the Judgment, held thus:

"20. As has been held by Their Lordships of the Apex Court that for permitting a trial to proceed against the accused for the offence punishable under Section 306 of the Indian Penal Code, 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 of the Indian Penal Code. As has been held by Their Lordships of the Apex Court that abetment involves mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused in aiding or instigating or abetting the deceased to commit suicide, the said persons cannot be compelled to face the trial. Unless there is clear mens rea to commit an offence or 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

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under Section 306 of the Indian Penal Code, in our considered view, would be an abuse or process of law."

20. Therefore, viewed from any angle, there

is no positive act of instigation, abetment or

intentional aiding attributed to applicant nos.2

and 4, within the proximity of commission of

suicide by Chandrakant. In that view of the

matter, the first information report qua Applicant

Nos.2 and 4 deserves to be quashed and set aside.

Hence, we pass the following order :-

ORDER:-

(i) The Criminal Application is partly

allowed. The F.I.R. bearing C.R. No.78 of 2016

registered on 15th April, 2016 with Police Station,