Bombay High Court

Dadarao S/O Hausaji Dakore vs The State Of Maharashtra And ... on 6 March, 2017

Bench: S.S. Shinde

                                                                5283.16appln
                                        1


                            
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                       BENCH AT AURANGABAD

                  CRIMINAL APPLICATION NO. 5283 OF 2016

          Dadarao S/o Hausaji Dakore,
          Age : 51 years, Occ : Service - Working
          as Executive Engineer at Zilla
          Parishad, Yavatmal,
          R/o : Nanded, Dist. Nanded.     ...APPLICANT

                   Versus

          1.       The State of Maharashtra,
                   Through Secretary,
                   Home Department, Maharashtra 
                   State, Mantralaya, Mumbai-32.

          2.       Police Inspector,
                   Police Station Vajirabad,
                   Nanded, Dist. Nanded.

          3.       Gangadhar S/o Sakharam Shinde,
                   Age : 46 years, Occ : Service - Police
                   Head Constable, PS - Vajirabad.
                   Nanded, Dist. Nanded.
                                          ...RESPONDENTS
                                   ...
           Advocate for applicants: Mr.M.V. Salunke holding 
                         for Mr. V.D. Salunke 
             APP for Respondent/State : Mr. S.P. Deshmukh 
                                   ...
                               CORAM : S.S. SHINDE & 
                                      K.K. SONAWANE, JJ.

RESERVED ON : 24th February, 2017 PRONOUNCED ON : 6th March, 2017

JUDGMENT : (PER S.S. SHINDE, J)

Rule. Rule made returnable forthwith

5283.16appln

and heard finally with the consent of the

learned counsel appearing for the parties.

2. The brief facts as disclosed in the

application, are as under:-

The applicant is working on the post

of Executive Engineer, Water Supply,

Department, Zilla Parishad, Yavatmal. Earlier

the applicant was posted as Executive

Engineer, Zilla Parishad, Nanded from

12.07.2012 till 31.07.2015. The applicant was

transferred from Nanded to Yavatmal on 31st

July, 2015. After transfer of the applicant

from Nanded, one Shri Navdunge resumed the

duties as Executive Engineer at Nanded. He

issued the work order on 7th May, 2016, and

allotted some work to one Vitthal Maruti

Waghmare (deceased), who was working in Sub-

Division, Minor Irrigation on CRT basis.

Shri Nivdunge, Executive Engineer

came to be arrested on 10th August, 2016 in

5283.16appln

ACB trap while accepting bribe of Rs.50,000/-

and accordingly, Crime No. 78/2016 came to be

registered against him at Vajirabad Police

Station, Nanded. One Shri Waghmare Vithal

(deceased) was doing the work along with said

Nivdunge during the relevant period and

hence, ACB Officer had called Shri.Vithal

Waghmare (deceased) for interrogation and he

was asked to submit files regarding the

offence registered against Shri Nivdunge.

It is alleged that, on 22nd August,

2016, Vitthal Maruti Waghmare, committed

suicide by hanging himself in the office of

Executive Engineer, leaving behind Suicide

Note, thereby stating that he was working on

CRT basis in Sub Division, Minor Irrigation

and he was assigned heavy workload, which he

was unable to carry out. It is alleged that,

he has no grudge or complaint against

anybody. It is alleged that, he has committed

5283.16appln

the suicide on his own, and nobody can be

held responsible for his act of suicide.

After receiving information of commission of

suicide by Vithal Waghmare, his relatives and

the workers gathered on the spot and

pressurized the police officers to register

the offence against Chief Executive Officer,

Zilla Parishad. So also the relative of the

deceased refused to take dead body of

Waghmare unless the offence is registered. It

is the case of the applicant that the police

department, under political pressure

registered the offence at about 23.05 hours

on 23rd August, 2016 i.e. after 48 hours,

which is after thought, wherein one Police

Constable namely Gangadhar Sakharam Shinde

i.e. respondent No.3, is shown as

complainant. When applicant came to know

through newspaper that such offence is

registered against him, he filed the

application for anticipatory bail before the

5283.16appln

Sessions Judge, Nanded and the Sessions Judge

granted anticipatory bail on 6th September,

2016.

3. The learned counsel appearing for

the applicant submits that, the applicant is

working as Executive Engineer in Water Supply

Division. Said deceased Vithal Waghmare was

not working directly under the control of the

applicant and no work was alloted to said

Waghmare by the applicant. The learned

counsel submits that, as the deceased

Waghmare was not subordinate to the

applicant, therefore, there was no occasion

to allot some work to him or to extract some

work from him. The learned counsel further

submits that, even reading of the suicide

note as it is, it does not disclose any

grudge and grievance against the present

applicant nor it discloses any cognizable

offence, more particularly, the offence under

section 306 of the IPC. The learned counsel

5283.16appln

submits that, lodging of the complaint is

only misuse of process of law, particularly

by the Police Officer so as to run away from

the public pressure and to save the skin of

police department. The learned counsel

further submits that, the import of total

complaint does not fulfill the ingredients of

section 306 of Indian Penal Code. There is no

complaint alleged by anybody including the

family members of the deceased.

4. The learned counsel appearing for

the applicant invites our attention to the

contents of the suicide note and submits

that, even upon reading the contents of the

said suicide note, no offence is disclosed

against the applicant. He invites our

attention to the provisions of Sections 107

and 306 of the Indian Penal Code and submits

that, the ingredients of the said offences

are not attracted, and therefore, no offence

is disclosed against the present applicant.

5283.16appln

The learned counsel appearing for the

applicant, therefore, submits that the

application deserves to be allowed.

5. On the other hand, the learned

A.P.P. appearing for the respondent/State and

the learned counsel appearing for respondent

no.2 jointly submit that, there is suicide

note and also during investigation the

Investigating Officer has collected

sufficient material, which would clearly

disclose the alleged offences against the

applicant. Therefore, it is submitted that,

the application may be rejected.

6. We have given careful consideration

to the submissions advanced by the learned

counsel appearing for the applicant, the

learned A.P.P. appearing for respondent/State

and the learned counsel appearing for

respondent no.2. We have also perused the

allegations in the first information report

5283.16appln

and also investigation papers, which are made

available for perusal. The relevant portion

of the suicide note written by deceased

Waghmare reads thus :-

"eh ekÖ;kdMs rRdkyhu dk;Zdkjh vfHk;ark Jh- Mkodksjs lkgsc ;kaP;k rksaMh @ ys[kh lqpuso:u ns.;kr vkysys dke gs vfr >kY;keqGs R;kpk ifj.kke ekÖ;k eukoj gksoqu R;kpk rku iMr vlY;keqGs eh ek>s ftou laior vkgs-"

7. Upon careful perusal of the

aforementioned contents of the suicide note,

it reveals that, Vithal Waghmare committed

suicide on 22nd August, 2016. It appears from

the factual position brought on record that,

the present applicant was transferred on 31st

July, 2015, from Nanded to Yavatmal as

Executive Engineer, Zilla Parishad, Yavatmal.

Therefore, keeping in view the time gap

between the alleged incident and transfer of

the applicant from Nanded to Yavatmal, it is

not possible to hold that, the applicant

5283.16appln

instigated, abetted or intentionally aided in

commission of the suicide by Waghmare.

8. At this juncture, it would be useful

to make a reference to the judgment of the

Supreme Court in the case of Madan Mohan

Singh V. State of Gujarat and anr.1 In said

case, the deceased therein was working as

driver under the Ex.Officer i.e. appellant

therein. The said driver allegedly committed

suicide due to harassment and insulting

behaviour by the appellant therein. He left

the suicide note alleging therein that, the

appellant therein asked the driver to keep

the keys of the vehicle on the table and not

to take away them. It was further stated

that, "I am going to commit suicide due to

his functioning style. Alone M.M. Singh,

D.E.T. Mcrowave Project is responsible for my

death. I pray humbly to the officers of the

1 2010 AIR SCW 5101

5283.16appln

department that you should not cooperate as

human being to defend M.M. Singh has acted in

breach of discipline disregarding the norms

of discipline. I humbly request the Enquiry

Officer that my wife and son may not be

harassed. My life has been ruined by M.M.

Singh."

The Supreme Court in the facts of

aforesaid case, while explaining the scope of

Sections 306 and 294 vis-a-vis, 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, 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

5283.16appln

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."

In the facts of the present case

also, there is no nexus between so called

suicide and any of the alleged acts on the

part of the applicant. There is no proximity

either. Even if the allegations in the

suicide note are read in its entirety, the

same would not even remotely suggest that,

the applicant abetted, intentionally aided or

instigated in an alleged suicide by Vithal

5283.16appln

Waghmare.

9. The Supreme Court in the case of

S.S. Chheena V/s Vijay Kumar Mahajan and

another2, in para 25 observed that, the

abetment involves 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