Bombay High Court

Sopan S/O Angadrao Akele vs The State Of Maharasthra And Anr on 8 March, 2017

Bench: S.S. Shinde

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                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


               CRIMINAL APPLICATION NO.4195 OF 2016


 Sopan s/o Angadrao Akele,
 Age-44 years, Occu:Service,
 R/o-Deoni, Tq-Deoni,
 Dist-Latur.
                                 ...APPLICANT 
        VERSUS             

 1) The State of Maharashtra,
    Through the Police Station Officer,
    Police Station, Udgir (City),
    Tq-Udgir, Dist-Latur,

 2) Payal w/o Vivekanand Shirse,
    Age-30 years, Occu:Household,
    R/o-Vikas Nagar, Udgir,
    Tq-Udgir, Dist-Latur.   
                                 ...RESPONDENTS

                      ...
    Mr.M.S. Deshmukh Advocate h/f. Mr. U.L.
    Momale Advocate for  Applicant.
    Mr.P.G. Borade, A.P.P. for Respondent No.1.
    Mr.A.R. Nikam Advocate for Respondent No.2. 
                      ...

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

DATE OF RESERVING JUDGMENT : 28TH FEBRUARY, 2017

DATE OF PRONOUNCING JUDGMENT: 8TH MARCH, 2017

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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. This Application is filed by the

Applicant praying therein to quash and set aside

the First Information Report No.137 of 2016

registered against him on 5th July 2016 at Udgir

(City) Police Station for the offence punishable

under Section 306 of the Indian Penal Code.

3. It is the case of the Applicant that he

is presently working as Block Development Officer

at Deoni Panchayat Samitee, District-Latur.

Deceased Vivekanand Yuvraj Shirse was working as

junior clerk at Deoni Panchayat Samitee. During

his service tenure at Udgir, Vivekanand Shirse

(deceased) was found guilty for misappropriation

of amount of Rs.53,204/-. Therefore, the Chief

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Executive Officer, Zilla Parishad, Latur initiated

departmental enquiry against Vivekanand Shirse.

Thereafter Vivekanand Shirse filed various leave

applications from time to time and remained absent

from duties. As Vivekanand Shirse was continuously

availing leave and remaining absent from duties,

the Applicant, on 29th June 2016, issued show-

cause notice to Vivekanand Shirse as to why action

should not be taken against him under the

provisions of the Maharashtra Zilla Parishad

Services Act and asked explanation from Vivekanand

Shirse. On 5th July, 2016, Vivekanand Shirse

committed suicide at his residence by hanging

himself to ceiling fan. The wife of Vivekanand

Shirse informed the police station, Udgir (City)

and on the basis of said information police

registered Crime No.137 of 2016 for the offence

punishable under Section 306 of the Indian Penal

Code (for short "I.P. Code") against the

Applicant.

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4. Learned counsel for the Applicant submits

that bare perusal of the complaint reveals that

the allegations leveled against the Applicant are

not enough to make out a prima facie case under

Section 306 of the I.P. Code for the commission of

the offence. The allegations are absolutely false

and frivolous. The Applicant has not at all abused

Vivekanand Shirse in any way and in fact it is

pertinent to note that Vivekanand Shirse was

facing departmental inquiry for misappropriation

of the amount. Vivekanand Shrise himself was

disturbed by his own acts because of dereliction

of duties. As departmental inquiry was pending

against Vivekanand Shirse, his guilty conscious

mind might have compelled him to take such drastic

step of commission of suicide. The learned counsel

further submits that ingredients for commission of

the act of suicide are not attracted against the

Applicant and even there is no incriminating

material on record to attribute requisite

intention on the part of the Applicant.

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5. Learned counsel appearing for the

Applicant further submitted that in leave note

dated 5th May 2016 Vivekanand Shirse has mentioned

that due to sad demise of his wife he needs leave

for some days and in fact the complaint has been

registered by his wife, which itself shows that

Vivekanand Shirse was mentally disturbed.

6. Learned counsel for the Applicant further

submits that the Applicant had issued show-cause

notice to Vivekanand Shirse on 29th June 2016, as

to why departmental action should not be taken

against him. Such act was part and parcel of duty

of the Applicant and the said show-cause notice

was issued by the Applicant in his official

capacity. In fact Vivekanand Shirse himself was

guilty of misconduct and worried for consequences

of his misdeeds and his guilty mind might have

tempted Vivekanand Shirse to commit suicide.

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7. Learned counsel for the Applicant further

submits that elder brother of Vivekand Shirse is

standing Taluka President of one political party

and he used his political pressure and compelled

the police authorities to lodge false complaint.

Though the incident took place in the morning of

of 5th July 2016, crime has been registered at

7.15 p.m. It is further submitted that ingredients

of Section 306 of the I.P. Code are not at all

attracted. No suicide note was found. Statement of

informant nowhere shows that Applicant has abetted

in commission of suicide by Vivekanand Shirse.

Lastly, learned counsel for the Applicant submits

that the First Information Report registered

against the Applicant deserves to be quashed and

set aside.

8. Learned counsel appearing for the

Applicant submits that the Supreme Court in the

case of Madan Mohan Singh vs. State of Gujarat and

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another1, while dealing with the similar fact

situation like in the present case, has taken a

view that the intention of the accused to aid or

to instigate or to abet the deceased to commit

suicide is a must for offence under Section 306 of

the I.P. Code. It is further observed by the

Supreme Court that the Courts have to be extremely

careful as the main person is not available for

cross-examination by the accused. Unless there is

specific allegation and material of definite

nature, it would be hazardous to ask the accused

to face the trial. Learned counsel appearing for

the Applicant further placed reliance on the ratio

laid down by the Supreme Court in the case of

State of Kerala and others vs. S. Unnikrishnan

Nair and others2. In support of his submissions,

learned counsel also placed reliance on the ratio

laid down by the Bombay High Court, Bench at

Aurangabad in unreported Judgments in the case of

Tushar s/o Mahadeorao Arsul vs. State of 1 2010 A.I.R. S.C.W. 5101 2 (2015) 9 Supreme Court Cases 639

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Maharashtra and another (Criminal Application

No.3683 of 2012) decided on 26th November 2012,

Mahesh s/o Shashikant Jape and others vs. the

State of Maharashtra and another (Criminal

Application No.4362 of 2015) decided on 11th

December 2015. Learned counsel further placed

reliance on the ratio laid down by the Bombay High

Court, Bench at Nagpur in the unreported Judgment

in the case of Dilip s/o Ramrao Shirasao and

others vs. State of Maharashtra and another

(Criminal Application No.332 of 2016) dated 5th

August 2016. Learned counsel appearing for the

Applicant submits that the Application deserves to

be allowed.

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

on the basis of investigation papers, submitted

that the allegations in the First Information

Report are supported by the statement of the

witnesses and therefore the prayer of the

Applicant for quashing the First Information

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Report may not be favourably considered.

10. Learned counsel appearing for Respondent

No.2 submitted that present Applicant is working

as Block Development Officer at Panchayat Samitee

Deoni, Dist-Latur and the deceased Vivekanand

Shirse was working as junior clerk. Vivekanand

Shirse committed suicide on 5th July, 2016 at his

residence by hanging himself on ceiling on account

of mental harassment caused by the Applicant.

Therefore Respondent No.2 filed complaint bearing

Crime No.137 of 2016 at Udgir police station

against the Applicant for the offence punishable

under Section 306 of the I.P. Code. It is further

submitted that the allegations of misappropriation

leveled against Vivekanand Shirse were baseless

and those were never proved in the inquiry.

11. Learned counsel appearing for Respondent

No.2 further submitted that the deceased

Vivekanand Shirse submitted an application for

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leave for the period from 20th April, 2016 to 4th

May, 2016 due to death of his first wife who was

suffering from some blood disease. It is submitted

that Vivekanand Shirse filed an application for

sick leave on 21st June, 2016 to the present

Applicant as he was not feeling well. Instead of

granting leave to Vivekanand Shirse, the Applicant

issued show-cause notice to Vivekanand Shirse on

29th June, 2016 making allegations that Vivekanand

Shirse filed application for sick leave and

remained absent from duties behind back of the

Applicant. It is alleged in the said show-cause

notice that deceased has not filed medical

certificate along with leave application and has

not disclosed the period of sick leave. The

Applicant has also made allegation that Vivekanand

Shirse has not prepared the salary bill of the

employees and not forwarded to the head office.

Learned counsel appearing for Respondent No.2

submits that all the allegations made by the

Applicant in show-cause notice dated 29th June,

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2016 are false.

12. The learned counsel appearing for

Respondent No.2 further submitted that the

Applicant has directed the deceased Vivekanand

Shirse to give reply of show-cause notice within

twenty four hours, which was absolutely wrong and

with a view to pressurize Vivekanand Shirse. The

said show-cause notice was not issued with good

intention but to give mental harassment to

Vivekanand Shirse. Therefore, Vivekanand Shirse

made complaint to his second wife i.e. the

informant that Applicant has harassed him mentally

and due to his persistent harassment, Vivekanand

Shirse committed suicide on 5th July, 2016.

13. Learned counsel appearing for Respondent

No.2 placed reliance on the reported Judgment of

the Supreme Court in the case of Chitresh Kumar

Chopra vs. State (Govt. of NCT of Delhi)3 and

submitted that the Supreme Court has explained 3 2010 A.I.R.(S.C.) 1446

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Section 306 read with 107 of the Indian Penal

Code. It is submitted that from a bare reading of

the provision it is clear that to constitute an

offence under Section 306 of the I.P. Code, the

prosecution has to establish that a person

committed suicide, and that such suicide was

abetted by the accused. Offence under Section 306

of I.P. Code would stand only if there is an

abetment for the commission of crime. It is

submitted that the facts of the present case

coupled with the investigation papers, would

unequivocally indicate that the Applicant abetted

and aided in the act of commission of suicide by

Vivekanand Shirse.

14. Learned counsel appearing for Respondent

No.2 further placed reliance on the reported

Judgment of the Supreme Court in the case of

Pravin Pradhan vs. State of Uttaranchal and

others4, wherein the Supreme Court observed that

4 2012 ALL M.R.(Cri) 4124

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instigation has to be gathered from circumstances

of a particular case and no straight jacket

formula can be laid down to find out as to whether

in a particular case there has been instigation

which forced the person to commit suicide. In a

particular case, there may not be direct evidence

in regard to instigation which may have direct

nexus to suicide. Therefore, in such a case, an

inference has to be drawn from the circumstances

and it is to be determined whether circumstances

had been such which in fact had created the

situation that person felt totally frustrated and

committed suicide. It is submitted that, in the

present case also Applicant intentionally harassed

and tortured the deceased Vivekanand Shirse and

issued show-cause notice and compelled him to give

explanation within twenty four hours and therefore

Vivekanand Shirse left with no option but to

commit suicide.

15. Learned counsel appearing for Respondent

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No.2 also placed reliance on the reported Judgment

in the case of State of Haryana and others vs.

Bhajan Lal and others5 and submitted that, the

Hon'ble Supreme Court held that if the allegations

in complaint clearly constitutes cognizable

offence then quashing of First Information Report

is not justified.

16. Learned counsel appearing for Respondent

No.2 further submitted that on 4th July, 2016

Vivekanand Shirse has informed to his wife that,

the Applicant is persistently harassing and

mentally torturing him since last six months and

from last fifteen days compelled him to take leave

and therefore, Vivekanand Shirse has no

alternative except to commit suicide. Vivekanand

Shirse has also disclosed the said fact of

harassment by the Applicant to other family

members and accordingly the Investigating Officer

has recorded statements of the concerned persons.

5 1992 A.I.R. (S.C.) 604

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In the show-cause notice dated 29th June, 2016

issued by the Applicant to Vivekanand Shirse it

was mentioned that the Chief Executive Officer,

Zila Parishad, Latur, has instructed Applicant to

take action against Vivekanand Shirse and the

deceased Vivekanand was asked to give explanation

in writing within twenty four hours. Considering

the nature and contents of the show-cause notice,

the Applicant has unnecessarily put blame on

deceased about his performance in duty. In

respect of the allegations regarding

misappropriation of the amount, it is submitted

that the Block Development Officer, Udgir has

given in writing that, there is no recovery of

amount pending with Vivekanand Shirse and

therefore, the stand taken by the Applicant has no

substance. The Applicant has no authority to take

cognizance of alleged misappropriation. It is

submitted that compelling the deceased Vivekanand

Shirse to go on leave and further compelling him

to give reply of show-cause notice within twenty

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four hours, covers the ingredients of offence

under Section 306 read with 107 of the I.P. Code.

17. Learned counsel appearing for Respondent

No.2 lastly submitted that considering the

peculiar facts and circumstances of the present

case, the Criminal Application is devoid of merit

and deserves to be rejected.

18. We have given careful consideration to

the submissions made by the learned counsel

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

appearing for the State and learned counsel

appearing for Respondent No.2 and with their able

assistance, perused the averments in the

Application, grounds taken therein, annexures

thereto, the First Information Report, reply filed

by Respondent No.2 and the exposition of law in

the reported Judgments relied on by the learned

counsel appearing for the respective parties.

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19. At the outset, it would be appropriate to

reproduce herein below the relevant portion/ gist

of the allegations made in the First Information

Report:-

"fQ;kZnhps irh foosdkuan ;qojkt f'kjls ;kauk iapk;r lferh nso.kh ;sFkhy ch-Mh-vks- ;kauh dk;kZy;hu dkedktkckcr xsys 6 efgU;kiklwu lrr ekufld o 'kkfjjhd NG d:u ekxhy 15 fnolkaiklwu LkDrhph jtk ?ks.;kl Hkkx ikMY;kus fQ;kZnhps irhus ch-Mh-vks nso.kh ;kaP;k ekufld =klkeqGs vkt fn- 05-07-2016 jksth R;kaps jkgrs ?kjh xGQkl ?ksÅu vkRegR;k dsyh oxSjs fQ;kZnh etdqj o:u xqUgk nk[ky- R;kaps vkRegR;sl ch-Mh-vks- nso.kh dkj.khHkwr >kys-"

20. Upon careful perusal of the annexures to

the Application, it appears that Vivekanand Shirse

(deceased) did file number of applications praying

therein to grant him leave. Such applications were

filed on 20th April 2016, 21st June 2016, 1st July

2016, and as contended by the Applicant on every

occasion application for leave was favourably

considered and leave was granted to Vivekanand

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Shirse (deceased). However, it is apparent from

perusal of the contents of the show-cause notice

issued by the Applicant on 29th June 2016 that, on

21st June, 2016 Vivekanand Shirse (deceased) filed

application for leave and without waiting for

sanction of leave, remained absent from duties.

Therefore, said show-cause notice was issued

seeking explanation of Vivekanand Shirse

(deceased). It was also mentioned in the said

show-cause notice that due to frequent absence of

Vivekanand Shirse the office work has suffered,

the pay bills were not prepared within time and

therefore the Chief Executive Officer, Zilla

Parishad, Latur has expressed displeasure and

Vivekanand Shirse was asked to explain in writing

why appropriate action should not be initiated

against him under the provisions of Maharashtra

Zilla Parishad Services (Discipline and Appeal)

Rules, 1964 and under the provisions of Rule 3 of

Maharashtra Zilla Parishad Services (Conduct)

Rules, 1967. When such notice was issued by the

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superior officer to Vivekanand Shirse, it was open

for him to file reply. It appears that Vivekanand

Shirse committed suicide on 5th July, 2016. The

act of the Applicant to issue show-cause notice,

was in his official capacity. As already observed,

it was possible for Vivekanand Shirse (deceased)

to reply the said show-cause notice and put forth

his contentions for his absence from the duties

with effect from 21st June, 2016. If the Applicant

has acted in his official capacity and issued the

show-cause notice to the employee working under

his supervision, it cannot be said that he acted,

instigated or intentionally aided in commission of

suicide by Vivekanand Shirse (deceased). By any

stretch of imagination it cannot be said that the

act of the Applicant to give such show-cause

notice or to ask Vivekanand Shirse to perform his

official duties, was abetment, instigation or

intentionally aiding in commission of the suicide.

Considering the circumstances brought on record

and also upon perusal of the investigation papers,

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it cannot be said that Vivekanand Shirse had no

option but to commit suicide due to either show-

cause notice given by the Applicant or for

insisting Vivekanand Shirse (deceased) to perform

the official work. In absence of any abetment,

instigation or intentional aid for commission of

suicide in proximate time and date of the alleged

commission of suicide, the Applicant cannot be

forced to face the trial. The show-cause notice

was issued on 29th June, 2016 and Vivekanand

Shirse (deceased) committed suicide on 5th July,

2016. In the first place, the issuance of show-

cause notice or contents of the show-cause notice

and the act of Vivekanand Shirse to commit the

suicide has no any nexus and secondly, after gap

of six days of issuance of such show-cause notice

Vivekanand Shirse has committed the suicide and

said act cannot be said to be in proximate date

and time of issuance of such show-cause notice.

21. The Supreme Court in the case of

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Madan Mohan Singh (supra), while considering the

prayer of the appellant therein for quashing the

F.I.R., has made reference to the suicide note

written by the deceased who was driver on the

official vehicle of the appellant therein, in Para

5 of the Judgment. It appears that, in that case

the deceased who was driver, committed suicide by

writing suicide note in following words:-

"I am going to commit suicide due to his functioning style. Alone M.M. Singh, D.E.T. Microwave Project is responsible for my death. I pray humbly to the officers of the department that you should not cooperate as human being to defend M.M. Sigh. 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 considered the contents

of the said suicide note and in Para 8 of the

Judgment, observed thus:

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"We could not find anything in the FIR or in the so-called suicide note which could be suggested as abetment to commit suicide. In such matters there must be an allegation that the accused had instigated the deceased to commit suicide or secondly, had engaged with some other person in a conspiracy and lastly, that the accused had in any way aided any act or illegal omission to bring about the suicide. In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this. In

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order to bring out an offence under Section 306, IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with an intention to bring out the suicide of the concerned person as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306, IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306, IPC either in the FIR or in the so-called suicide note."

. The Supreme Court in Para 9 of the

Judgment observed that:

"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

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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."

22. In the case of Tushar s/o Mahadeorao

Arsul (supra), the Division of the Bombay High

Court, Bench at Aurangabad, in para 6 of the

Judgment observed that:

"We are of the considered view that the act or acts of accused to insult do not by themselves constitute abetment. It has to be shown from a statement in the complaint that these accused have actually instigated and aided in the victim's act of committing

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suicide. In absence of any such description, the FIR is liable to be viewed as a text which does not contain the ingredients of offence."

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

(supra), the Division Bench of the Bombay High

Court, Bench at Nagpur considered the various

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

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

24. Therefore, in the light of discussion in

foregoing paragraphs, we are of the opinion that

all the acts/ allegations attributed to the

Applicant are in his official capacity. The

material placed on record unequivocally indicates

that the Applicant, in discharge of his official

duties, had issued show-cause notice to Vivekanand

Shirse (deceased). By any stretch of imagination

it cannot be said that the Applicant intended or

abetted or instigated the deceased Vivekanand

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Shirse to commit suicide. Unless there is clear