Bombay High Court

Ravi Balram Agaldivate And Others vs The State Of Maharashtra And Anr on 29 November, 2017

Bench: S.S. Shinde

                                       1              Cri.Appln.5132-17.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD


             CRIMINAL APPLICATION NO.5132 OF 2017

     1.      Ravi Balram Agaldivate,
             Age 32 years, Occu. Cook,

     2.      Yallappa Balram Agaldivate,
             Age 30 years, Occu. Cook,

     3.      Uma Madhukar Kambale,
             Age 27 years, Occu. Household,

             All R/o 94, Shaniwar Peth,
             Solapur.                                ...  Applicants

                      Versus

     1.      The State of Maharashtra
             Through Nanded Airport Police Station
     2.      Ambadas Ramchandra Kambale,
             Age 36 years, Occu. Labourer,
             R/o Shivneri Nagar, Nanded.   ...  Respondents

                                ...
     Mr. J.D.Mane, Advocate for Applicants
     Mr. V.M.Kagne, APP for Respondent No.1 - State 
                               ...

                            CORAM :        S.S.SHINDE AND
                                           MANGESH S. PATIL, JJ.

RESERVED ON : 13th November, 2017 PRONOUNCED ON : 29th November, 2017

JUDGMENT : (Per Mangesh S. Patil, J.) :-

2 Cri.Appln.5132-17.odt

Rule. The Rule is made returnable forthwith.

Heard finally with the consent of learned advocate for

the applicants and the learned APP.

2. This is an application under Section 482 of the

Criminal Procedure Code seeking quashment of FIR

bearing No.155 of 2017, dated 28.05.2017, registered

with Nanded Airport Police Station for the offence

punishable under Section 306 read with 34 of Indian

Penal Code against all the applicants.

3. In sum and substance, the allegations in the FIR

are to the effect that the deceased Madhukar

Ramchandra Kambale was the husband of applicant

No.3. Applicant Nos.1 and 2 are brothers of applicant

No.3. Respondent No.2, who has not put appearance

inspite of service of the notice, is the brother of the

deceased. On 18.05.2017, the deceased along with the

applicants attended the marriage at Mumbai. The

marriage was that of a cousin brother of the applicants.

During the marriage, deceased Madhukar requested his

wife - applicant No.3 to dance with him in the

3 Cri.Appln.5132-17.odt

procession, but she refused to dance. On the next day,

i.e. on 19.05.2017 the applicants and deceased

Madhukar came to Solapur, which is a native place of

the applicants. When he asked applicant No.3 to tie up

her bag for going to Nanded, applicant No.1 asked her to

untie the bag and threatened her that else he would kill

her. When deceased Madhukar started going to

Nanded, applicant No.1 beaten him. On 21.05.2017,

Madhukar made a phone call from Nanded to applicant

No.2 saying that it was a day of his marriage

anniversary and he wanted to talk to applicant No.3. He

was told that she had gone for answering nature's call.

Later on, applicant No.1 made a phone call to him and

abused him in filthy language. Applicant No.3 also told

him that she will not come down to Nanded for another

4-5 days.

4. Because of such insult Madhukar bought petrol

and by pouring it on his person, set himself ablaze of

which he sustained 60 % burns and unfortunately

succumbed to the burn injuries in the Civil Hospital,

Nanded on 27.05.2017. On the same day, Respondent

4 Cri.Appln.5132-17.odt

No.2 lodged the impugned FIR. On the basis of which

the offence has been registered.

5. According to the learned Advocate for the

applicants, even accepting all the allegations in the FIR,

at their face value, all the ingredients for constituting

the offence punishable under Section 306 of the Indian

Penal Code are not made out. Assuming that the

applicants had abused or beaten Madhukar and the

latter had felt insulted that would not per se constitute

abetment within the meaning of Section 107 of the

Indian Penal Code. The necessary mens rea was absent

and applying the principles in the case of State of

Haryana Vs. Bhajan Lal [AIR 1992 S.C. 604] the

applicants cannot be made to face the criminal

prosecution and it would be sheer abuse of the process

of law. The learned Advocate also referred to the

decisions in the case of S. S. Chheena Vs. Vijay

Kumar Mahajan and another [2010 ALL MR (Cri.)

3298 (S.C.)], Gangula Mohan Reddy Vs. State of A.P.

[2010 ALL MR (Cri) 615 (S.C.)], Sanju @ Sanjay Singh

5 Cri.Appln.5132-17.odt

Sengar Vs. State of Madhya Pradesh [2002 CRI.L.J.

2796] and few Division Bench decisions of this Court in

the case of Binod S/o Ratan Sarkar and others Vs.

The State of Maharashtra and another [2013 (3)

Mh.L.J. (Cri) 418], Ms. Lovina Pankaj Bhatia Vs.

Central Bureau of Investigation and others [2011

(113) BLR 3192], Dr. Shivanand Shivraj Biradar Vs.

The State of Maharashtra and another [2017 ALL

MR (Cri) 1401].

6. The learned APP vehemently submitted that the

allegations in the impugned FIR will have to be taken at

their face value and clearly make out that it is because

of the instigation of the applicants that the deceased

Madhukar has committed suicide. According to the

learned APP, the allegations cannot be said to be

inherently improbable and also it cannot be said that

the impugned FIR has been lodged with a mala fide

intention. Thus according to the learned APP, the

application has no merit and is liable to be rejected.

6 Cri.Appln.5132-17.odt

7. We have carefully perused the application and the

papers of the investigation. Needless to state that the

scope of the powers to quash the FIR has been

crystalized by the Supreme Court in the case of Bhajan

Lal (supra). Seven categories of cases have been

identified and it has been specifically made clear that

the list was not exhaustive. Suffice for the purpose to

reproduce these categories :

"108] In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines of rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1] Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2] Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.

                                             7                  Cri.Appln.5132-17.odt

              3]      Where the uncontroverted allegations made in

the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4] Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.

5] Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6] Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7] Where a criminal proceeding is manifestly attended with mala fide and / or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

8. Simultaneously, one needs to bear in mind the

ingredients of the offence punishable under Section 306

of the Indian Penal Code which reads thus :

"306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. "

8 Cri.Appln.5132-17.odt

9. The abetment has been defined under Section 107

of the Indian Penal Code and reads thus :

"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. "

10. It is thus apparent that a person can be said to

abet a suicide when either he instigates that person to

commit suicide or conspires with some other persons by

act or omission and makes the person to commit suicide

or intentionally aids the person to commit suicide.

Bearing in mind these ingredients if one carefully

peruses the contents of the FIR, we have no manner of

doubt that even by accepting the contents at their face

value, the ingredients of abetment are not revealed.

There is no allegation that the applicants had either

instigated or conspired or intentionally aided

commission of the suicide. Needless to state that there

has to be a legal and logical nexus between the act of

9 Cri.Appln.5132-17.odt

suicide and the alleged act which leads the person to

commit suicide. Unless such instigation, conspiracy or

intentional aid is coupled with necessary mens rea to

lead the person to commit suicide, it cannot be said that

such a nexus is established. There has to be something

more than a mere cause and effect relationship between

such abetment and the suicide. In the absence of such

a nexus, it cannot be said that the abetment is the

proximate and legal cause for commission of suicide.

11. Even accepting the allegations in the FIR to be

true, what transpires is that the deceased along with

the applicants had attended the marriage at Mumbai on

18.05.2017. He had requested applicant No.3 to dance

with him and on her refusal, a quarrel had ensued

wherein applicant No.2 had slapped him. On the next

day, i.e. on 19.05.2017, they all came down to Solapur.

He then, insisted applicant No.3, his wife to go to

Nanded but applicant No.1 did not allow her to leave and

assaulted him. It is thereafter on 21.05.2017, there was

a telephone conversation between the applicant and the

deceased and after he was allegedly abused and even

10 Cri.Appln.5132-17.odt

applicant No.3 refused to come down to Nanded that he

set himself ablaze. Accepting these allegations at the

most it can be said that the deceased Madhukar must

have felt insulted by the refusal of the applicants to

send applicant No.3 to Nanded. A period of 2 to 3 days

had lapsed between the episode that had taken place in

Mumbai on 18.05.2017 and the date he committed

suicide i.e. 21.05.2017. In fact on 19.05.2017 he had left

Solapur and had came to Nanded and after an

intervening day, he has committed suicide on

21.05.2017. Therefore, at the most it can be said that all

these episodes collectively could have led him to a stage

of frustration. However, in the absence of any allegations

to attribute mens rea on the part of the applicants it

cannot legally constitute an abetment within the

meaning of Section 107 of the Indian Penal Code.

Suffice for the purpose to refer to the decision in the

case of Sanju @ Sanjay Singh Sengar (supra). In that

case, the accused had said to the deceased 'to go and

die' as a sequel to the quarrel that had ensued between

the accused and the deceased it was held that even

11 Cri.Appln.5132-17.odt

such utterances would not constitute instigation.

12. In the case of Gangula Mohan Reddy (supra), the

accused had alleged the deceased of committing theft of

gold ear rings and it was held that the suicide

committed by the labourer against whom such

allegations were levelled by his employer did not

constitute abetment or positive act of instigation. In the

case of S.S.Chheena (supra), when there was an enquiry

conducted by the Head of the Department to ascertain

as to who had committed theft of a mobile phone, the

student suspected of committing theft committed

suicide and in the suicide note it was mentioned that he

was annoyed because of a false allegation and as a

result of the enquiry he was sure of getting declared

innocent and he was committing suicide because of the

annoyance caused due to false involvement in

commission of theft. The Enquiry Officer Chheena was

implicated for abetting the suicide on the basis of such

suicide note. It was held in paragraph No.28 and 29 as

under :

"28. Abetment involves a mental process of instigating

12 Cri.Appln.5132-17.odt

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."

13. We do not wish to burden this judgment with the

other judgments of the Division Benches of this High

Court. We find no hesitation in concluding that

applying the principles of law as laid in the afore

mentioned cases as also the decision in the case of

Bhajan Lal (supra), even by accepting the allegations in

the impugned FIR at their face value it cannot be said

that all the necessary concomitants for constituting the

offence of abetment of suicide punishable under Section

306 of the Indian Penal Code are discernible.

14. It would be sheer abuse of process of law if the

applicants are made to face the prosecution on the basis