Bombay High Court
Shaikh Amir S/O. Shaikh Bhikan And ... vs The State Of Maharashtra And Anr on 9 June, 2017
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1530 OF 2017
1. Shaikh Amir s/o Shaikh Bhikan
age 75 years, occ. pensioner
2. Shaikh Ishaq s/o Shaikh Amir
age 46 years, occ. advocate
3. Shaikh Mustaq s/o Shaikh Amir
age 44 years, occ. business
4. Shaikh Ashpak s/o Shaikh Amir
age 58 years, occ. service
5. Shaikh Asif w/o Shaikh Amir
age 32 years, occ. business
All r/o Amir Nagar, Kuchar Ota
Old Jalna, Jalna, Tq. & Dist. Jalna.
6. Uttam s/o Somaji Padol
age 58 years, occ. agriculture
r/o Dongargaon Dabhadi
Tq. Badnapur, Dist. Jalna Applicants
Versus
1. The State of Maharashtra
Through Police Station
Badnapur
Dist. Jalna
2. Dnyaneshwar Nanasaheb Padol
age 19 years, occ. agriculture
r/o Dongargaon (Da)
Tq. Badnapur, Dist. Jalna Respondents
Mr. S.J. Salunke, advocate for the applicants.
Mr. K.D. Mundhe,, A.P.P. for Respondent no.1.
Mr. S.S. Randive, advocate for respondent no. 2.
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CORAM : R.M.BORDE &
A. M. DHAVALE, JJ.
DATE : 9th JUNE, 2017
ORAL JUDGMENT: ( PER R. M. BORDE, J. )
1. Rule. Rule made returnable forthwith.
2. Heard finally at admission stage by consent of learned
counsel for the respective parties.
3. Instant application is presented by petitioners-accused
implicated in crime no. I-25/2017 registered on 22.02.2017 at
Police Station Badnapur, for commission of offence punishable
under section 306 r/w 34 of the Indian Penal Code.
4. First Information Report is lodged by one Dnayneshwar
Nanasaheb Padol levelling allegations of abetment to commit
suicide against the accused herein. The father of the informant is
alleged to have committed suicide by drinking poisonous substance
on 16.02.2017. It is alleged in the First Information Report that
some seven years back, father of the informant had taken
Rs. 2,00,000/- from the accused. There was some agreement
entered into between deceased father of the informant and the
accused in respect of supply of bore-well water for agricultural use
of accused and adjoining land holders. An amount at the rate of
Rs. 50,000/- per year was agreed to be paid by the accused to the
father of the informant for user of bore-well water. It is stated that
some amount was due from the accused and the father of the
informant was claiming recovery of amount. The accused did not
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pay the amount however, they were asking the money back from
the father of the informant and were extending threats on account
of payment of Rs. 1,00,000/- to them. It is stated that on
15.02.2017 all the accused came together and extended threats to
the father of the informant. The accused have also threatened to
kill the father of the informant. It is further alleged that on
16.2.2017, father of the informant went to the agricultural land and
consumed poison. At 8 O' clock, when the informant went to
search his father, he noticed his father lying in the sweetlime
orchid belonging to the family. The deceased was taken to the
hospital where he died on 22.02.2017 while undergoing treatment.
Informant alleges that as a result of persistent harassment by the
accused, his father has committed suicide.
5. Affidavit-in-reply has been presented by the informant
opposing the application presented by the applicants herein
seeking qushement of the First Information Report. Alongwith
affidavit-in-reply, complaints allegedly tendered by father of the
informant to the police authority on 04.01.2017 is also annexed. It
is alleged in the complaint lodged by father of the informant that
there was an agreement in respect of providing bore-well water to
the agricultural lands belonging to the accused and, the accused
were supposed to pay Rs. 50,000/- per year towards user of bore-
well water to the father of the informant. It is stated that accused
utilised water for seven years however, paid only Rs. 2,00,000/-
and, there was balance of Rs. 1,50,000/- receivable from them.
Father of the complainant asked for money however, accused
threatened him with lodging of false police case against him. It
appears that the details stated by the informant are contrary to the
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allegations levelled by his father during his lifetime against the
applicants herein by tendering application to the police authority
on 04.01.2017.
6. Even otherwise, the question that needs to be answered is
whether the allegations levelled in the First Information Report
lodged by the informant constitute abetment as defined in section
107 of the Indian Penal Code. It is provided that a person abets
doing of a thing who instigates any person to do that thing, or
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 intentionally aids, by any act or illegal
omission, the doing of that thing. In the instant matter, on perusal
of the First Information Report, it cannot be inferred that the
applicants have instigated father of the informant to commit
suicide nor have intentionally aided by any act or illegal omission,
in committing suicide.
7. The Honourable Apex Court in the matter of Pravin Pradhan
Vs. State of Uttaranchal and another, (2012) 9 Supreme Court
Cases 734 has observed in paragraphs 16 and 17 thus :
16. This Court in Ramesh Kumar V.
State of Chhattisgarh while dealing with a
similar situation observed that what
constitutes "instigation" must necessarily
and specifically be suggestive of the
consequences. A reasonable certainty to
incite the consequences must be capable of
being spelt out. More so, a continued
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course of conduct is to create such
circumstances that the deceased was left
with no other option but to commit suicide.
17. The offence of abetment by
instigation depends upon the intention of
the person who abets and not upon the act
which is done by the person who has
abetted. The abetment may be by
instigation, conspiracy or intentional aid as
provided under Section 107 IPC. However,
the words uttered in a fit of anger or
omission without any intention cannot be
termed as instigation. (Vide : State of
Punjab v. Iqbal Singh, Surender v. State of
Haryana, Kishori Lal v. State of M.P. and
Sonti Rama Krishna v. Sonti Shanti Sree.)
In the matter of Seema Ajay Bhoosreddy, 2011 ALL MR
(Cri) 3326, decided by the Division Bench of this Court, it is
recorded in paragraph no. 18 thus :
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 trail. Unless there is
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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.
Reliance can also be placed on a judgment in the matter of
Netai Dutta Vs. State of West Bengal, 2005(2) SC 659, wherein
it has been laid down that the no mens rea can be attributed to the
petitioner including of any role in any conspiracy which ultimately
instigated the deceased to commit suicide.
Reliance can also be placed on a judgment in the matter of
Binod s/o Ratan Sarkar Vs. State of Maharashtra, 2014 ALL
M R 1216, wherein a preposition has been laid down that in the
absence of direct or indirect act of instigation to commit suicide,
the accused cannot be held responsible for the alleged offence.
8. Even if the allegations levelled against the accused in First
Information Report are taken to be true, there is nothing to infer
that there was any instigation by the accused to the deceased to
commit suicide. It also has to be considered as to whether there is
any proximity or nexus of the alleged act of the accused while
drawing inference as regards their involvement in the alleged act of
abetment for committing suicide by the deceased.
9. Learned counsel for respondent has placed reliance on the
judgment of the Honourable Apex Court in the matter of Amit
Kapoor Vs. Ramesh Chander and another , 2012(4) SCC 460.
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The Apex Court in the aforesaid judgment has laid down
preposition in respect of causing interference by High Court in
exercise of powers under section 482 of the Code of Criminal
Procedure. There shall not be any dual opinion as regards the
preposition laid down by the Honourable Apex Court. Keeping the
principles in mind, in our considered view, on mere perusal of the
contents of the First Information Report, the ingredients of section
107 of the Indian Penal Code are not attracted and as such, the
applicants cannot be branded as abetors. Although, in the instant
matter, it is noticed on perusal of the report lodged by deceased on
04.01.2017 during his lifetime to the police authority that it is the
deceased himself who was asking balance amount of Rs.
1,50,000/- from the accused/applicants herein so also, in the first
paragraph of the First Information Report, there is a reference to
an agreement in respect of supply of bore-well water to the accused
and payment of amount for user bore-well water by the accused.
Although it is stated that accused were demanded the amount, it
appears to be contrary to the admitted stand taken by the father of
the informant i.e. deceased during his lifetime. Even otherwise, we
do not find that there is any material placed on record on the basis
of which inference can be drawn that there was persistent
harassment by accused / applicants to the deceased which drove
him to take extreme step of committing suicide.
10. For the reasons recorded above, the criminal application
deserves to be allowed and the same is accordingly allowed.
Proceedings initiated against applicants in pursuance of lodging of
First Information Report on 22.02.2017 being Crime No. I-25/2017
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stands quashed. Rule made absolute accordingly.
( A.M. DHAVALE ) ( R.M.BORDE )
JUDGE JUDGE
dyb
