Rahul Bapu More vs The State Of Maharashtra And Anr
2017 Latest Caselaw 7813 Bom

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                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


               CRIMINAL APPLICATION NO.1730 OF 2017


 Rahul s/o Bapu More,
 Age-30 years, Occu:Service(Gramsevak),
 R/o-Barrack No.45, Room No.501,
 Police Line Barrack, Fashipul,
 Dhule, Tq. & Dist-Dhule.
                                 ...APPLICANT 
        VERSUS             

 1) The State of Maharashtra,
    Through Investigating Officer,
    Shindkheda Police Station,
    Tq-Shindkheda, Dist-Dhule,

 2) Kailas s/o Pandit Patil,
    Age-38 years, Occu:Agri.,
    R/o-Hatnoor, Tq-Shindkheda,
    Dist-Dhule.   
                                 ...RESPONDENTS

                      ...
    Mr.N.L. Chaudhari Advocate for  Applicant.
    Mr.M.M. Nerlikar, A.P.P. for Respondent No.1.
    Mr. Shrimant Mundhe, Amicus Curiae to
    assist the Court.       
                      ...

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

DATE : 5TH OCTOBER, 2017

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

1. This Application is filed by the

Applicant praying therein to quash and set aside

the First Information Report bearing C.R. No.35 of

2016 registered on 7th March, 2016, with

Shindkheda Police Station, Tq-Shindkheda, Dist-

Dhule for the offence punishable under Section 306

of the Indian Penal Code.

2. It is the case of the Applicant that he

is a Government servant serving as Gramsevak. The

service record of the Applicant is clean and

unblemished. The Government of Maharashtra started

a scheme of Mahatma Gandhi Rashtriya Rojgar Hami

Yojna (for short "M.R.G.S. Scheme"), for digging

and constructing wells. In the said scheme 60%

amount is to be paid/allotted and distributed to

the workers who conduct the work of digging well,

and 40% of amount is to be paid towards material

charges. It is the further case of the Applicant

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that one Ramesh Pandit Patil (deceased), having

land in Bhadane Shivar, had applied for sanction

of a well under the said M.R.G.S. Scheme. Being

Gramsevak, it was the duty of the Applicant to

disburse the cheques to the beneficiaries of the

said M.R.G.S. Scheme. On 23rd December, 2015, said

Ramesh Pandit Patil committed suicide by consuming

poisonous medicine. Immediately on the said date,

the informant i.e. Kailas Pandit Patil, real

brother of deceased Ramesh, informed Shindkheda

police station about accidental death of his

brother and accordingly, A.D. No.90 of 2015 came

to be registered with Shindkheda Police Station on

24th December, 2015.

3. It is the further case of the Applicant

that on the basis of incident of suicide of

deceased Ramesh Patil, Tahsildar, Shindkheda had

submitted a detail report to the Sub-Divisional

Officer, Shirpur, stating therein that Talathi and

Circle Officer had conducted enquiry by visiting

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the spot of incident and they have also submitted

panchnama and statement of wife of deceased and

also bank loan record of the deceased Ramesh

Patil. It has been stated in the said report that

Tahsildar Shindkheda, Taluka Agricultural Officer,

Shindkheda and Police Inspector of Shindkheda

Police Station had personally visited Mauje

Hatnoor and have submitted self explanatory report

as per the provisions of Government Resolution

dated 6th September, 2007.

4. It is submitted by the Applicant that

deceased Ramesh as well as his family members were

insisting the Applicant to issue one single cheque

of the sanctioned amount of Rs.2,90,000/-.

Whereas, actually the payment was to be made to

the workers for an amount of Rs.1,98,108/- and

payment of Rs.91,892/- was to be made to the

suppliers of material. On 26th November, 2015, the

Applicant had issued cheques to the concerned

workers and the same were cleared by them. Being

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annoyed by this procedural and regular act of the

Applicant, the family members of the deceased had

assaulted and abused the Applicant on 21st

December, 2015. Accordingly, the Applicant had

intimated about the same to the Superintendent of

Police and Chief Executive Officer, Dhule.

Thereafter on 23rd December, 2015, Ramesh Pandit

Patil committed suicide. However, after a period

of more than two months i.e. on 7th March, 2016,

an informant Kailas Pandit Patil, lodged First

Information Report (in short "FIR") with

Shindkheda police station alleging that the

Applicant Gramsevak was intentionally not issuing

cheque to his deceased brother. It is alleged

against the Applicant that inspite of sanction of

the amount, and inspite of various requests and

demands, the Applicant had not issued cheque in

the name of deceased Ramesh and intentionally

issued a cheque to suppliers/ traders. Due to said

mental harassment, it is alleged that, brother of

the informant committed suicide on 23rd December,

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2015, by consuming poisonous medicine. Immediately

after registration of the crime, the Applicant had

filed application seeking anticipatory bail and

learned Additional Sessions Judge, Dhule by order

dated 16th March, 2016, had granted anticipatory

bail in favour of the Applicant.

5. Relying upon the grounds taken in the

Application, learned counsel appearing for the

Applicant submits that the Applicant has not

committed any offence as alleged and he is not at

all involved in the said crime nor he has abated

the deceased to commit suicide as alleged in the

FIR. It is submitted that the Government of

Maharashtra, vide Government Circular dated 7th

March, 2015, issued instructions in respect of

construction of wells under the M.R.G.S. Scheme.

In the said Circular, procedure for payment of

material as well as payments of labourers has been

prescribed and as per the said scheme, the payment

has been made by the Applicant and the allegations

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made in the FIR are incorrect.

6. Learned counsel further submitted that

deceased Ramesh had availed loan of Rs.3,00,000/-

from State Bank of India, Nardhana Branch. From

the report submitted by Tahsildar, Shindkheda, it

clearly reveals that, deceased Ramesh had availed

loan and as there was no income from the said

agricultural land since last more than one year

due to excess rain and natural calamity, Ramesh

had committed suicide. It is further submitted

that even in the statement of wife of deceased

Ramesh, namely, Smt. Ashabai Ramesh Patil,

recorded on 30th December, 2015, she has clearly

stated that her husband was under mental tension

of natural calamities and drought situation and he

was unable to make repayments of loan installments

and as such he has committed suicide.

7. Learned counsel further submitted that

the informant Kailas Pandit Patil, had initially

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registered Accidental Death Case with police

station on 23rd December, 2015, and after lapse of

a period of more than two months, he has lodged

alleged FIR alleging that due to mental harassment

on the part of the Applicant, his brother Ramesh

Patil has committed suicide and the belatedness of

the FIR clearly smokes of concoction and false

implication. It is further submitted that the

Additional Sessions Judge, Dhule while granting

anticipatory bail to the Applicant, held that the

allegations made against the Applicant are vague

and omnibus in nature, the FIR lodged is also at

belated stage and it is not the case of the

informant that sanctioned amount was not

disbursed.

8. Learned counsel further submits that the

Supreme Court in the case of Madan Mohan Singh vs.

State of Gujarat and another1, has held that, it

would have to be objectively seen whether the

1 2010 A.I.R. S.C.W. 5101

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allegations made could reasonable be viewed as

proper allegations against the accused to the

effect that, he had intended or engineered the

suicide of the concerned person by his acts words

etc. It is further held that the baseless and

irrelevant allegations could not be used as a

basis for prosecution for a serious offence under

Section 306 of the I.P. Code. Learned counsel

further submits that the Supreme Court in the case

of Amalendu Palalian Jhantu vs. State of W.B.2,

held that, in order to bring a case within the

purview of Section 306 of I.P. Code, there must be

a case of suicide and in the commission of the

said offence, the person who is said to have

abetted the commission of suicide must have played

an active role by an act of instigation or by

doing certain act to facilitate the commission of

suicide.

9. Learned counsel further submits that the

2 A.I.R. 2010 S.C. 512

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the FIR which does not constitute any prima facie

case or spell out commission of any offence,

should be quashed by exercising the jurisdiction

under Section 482 of the Code of Criminal

Procedure. Learned counsel submitted that the

ingredients of the alleged offence are not at all

attracted, and as such the FIR itself is vague and

as such the said proceeding of the alleged crime

deserves to be quashed and set aside by allowing

the Application.

10. On the other hand, learned A.P.P.

appearing for the State invites our attention to

the allegations in the FIR and submits that the

allegations in the FIR clearly disclose the

alleged offence. Relying upon the investigation

papers, the learned A.P.P. submits that the

prosecution agency has collected sufficient

material and on the basis of said material trial

can proceed.

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11. Mr. Munde, learned Amicus Curiae submits

that prima facie alleged offences are disclosed

and therefore the FIR may not be quashed.

12. We have given anxious consideration to

the submissions of the learned counsel appearing

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

the State, with their able assistance we have

carefully perused the contents of the First

Information Report and also the investigation

papers made available by the learned A.P.P., and

the exposition of law in the reported Judgments

relied upon by the learned counsel appearing for

the Applicant.

13. At the outset, it would be appropriate to

reproduce herein below the relevant portion/gist

of the allegations made in the First Information

Report:-

"lnj 'ksrkr fofgj [kksndkeklkBh iapk;r lferh f'kan[ksMk

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;sFkqu ojhy ;kstusrwu 2 yk[k 90 gtkj :i;s eatqj >kys gksrs- lnj eatqj jdespk psd xzkelsod gk ykHkkFkhZayk forj.k djhr vlrks- xzkelsod ;kauh Hkkm jes'k iaMhr ikVhy xzkelsod ;kapsdMs osGksosGh jDdespk psd ?ks.;klkBh tkr gksrk- ijarq xzkelsod jkgqy ckiq eksjs gk psd ns.;kl gsrq iqjLdj =kl nsr gksrk- Hkkm ;kus [email protected] osGk R;kps dMsl tkoqu moZjhr jDdespk lqekjs [email protected]& :i;kpk psd ekx.kh djhr gksrk- lnj jDde Hkkm jes'k ;kl ekx.kh dj.;kph 15 fnol vxksnj iklqu jDde eatqj >kyh gksrh- ijarq R;kauh osGhp psd fnyk ukgh- eh Lor% ns[khy fn- 25-11- 2015 jksth ekfld lHkk o fn- 26-11-2015 jksth xzkelHksps osGh psd ekx.kh dsyh gksrh- ijarq R;kauh psd fnyk ukgh- fn- 26-11-2015 jksth lk;adkGh xzkelsod ;kauh [email protected]& :i;kpk psd fnyk ijarq lnj psd 5 O;kikjh ;kaps ukos fnyk- okLrfod lnjpk psd gk ykHkkFkhZ ;kaps ukos vko';d gksrs- ijarq lnj psd yks[kaM] flesaV] [kMh] jsrh] cka/kdkekps dkjkxhj ;kapk lekos'k gksrk- ojhy xzkelsod ;kauh Hkkm jes'k iaMhr ikVhy ;kauk osGhp psd fnyk ukgh Eg.kqu rs euLrkikr gksrs- xzkelsod ;kauh Hkkm jes'k ;kl psd ns.;klkBh ekufld =kl fnY;kus o lkj[kh fQjok fQjo dsY;kus R;kus fnukad 23-12-2015 jksth ldkGh 10-30 iqohZ R;kaps HkM.ks f'kokjkrhy 'ksr xV uacj [email protected] e/;s dkghrjh fo"kkjh vkS"k/kkps lsou d:u vkRegR;k d:u ?ksryh vkgs- ojhy xzkelsod ;kauh ekufld =kl fnY;keqGsp Hkkm jes'k iaMhr ikVhy ;kus Lor% vkRegR;k d:u ?ksryh vlqu] Hkkm ;kaps vkRegR;sl xzkelsod jkgqy ckiq eksjs ;kusp izo`Rr dsys vkgs- Eg.kqu ek>h R;kP;k fo:/n dk;ns'khj fQ;kZn vkgs-"

14. Upon careful perusal of the contents of

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the Application and the First Information Report,

it appears that under the M.R.G.S. Scheme, for

digging and constructing the well, an amount of

Rs.2,90,000/- was sanctioned to Ramesh Patil

(deceased). It is alleged in the First Information

Report that though Ramesh (deceased) was asking

the Applicant to issue cheque of remaining amount

of Rs.82,000/- in his favour, the Applicant was

avoiding the same and ultimately the Applicant had

issued the cheque in the name of traders/material

suppliers, which caused mental tension to Ramesh

(deceased). The Applicant has placed on record a

copy of Government Circular dated 7th March,

2015, wherein guidelines are issued regarding the

M.R.G.S. Scheme and how the funds are to be

distributed/disbursed for digging and constructing

the wells. The said Government Circular

specifically provides that Grampanchayat has to

purchase the material and the the cheque has to

be issued in favour of the trader/material

supplier, and in any case the beneficiary should

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not be permitted to purchase the material. It is

not the case of the informant that the Applicant

has not disbursed the amount under the scheme, but

it is the allegation of the informant that the

cheque was issued in favour of the trader from

whom the material for digging the well was

purchased. Thus, it is clear that the Applicant

has acted in accordance with the provisions of

M.R.G.S. Scheme. It appears that the Applicant has

issued concerned cheques on 26th November, 2015,

and Ramesh Patil (deceased) had committed suicide

on 23rd December, 2015. If the Applicant has

issued cheques of the amount sanctioned under

M.R.G.S. Scheme, in favour of the workers and

traders/material suppliers, it cannot be said that

he acted, instigated or intentionally aided in

commission of suicide by Ramesh Patil (deceased).

By any stretch of imagination it cannot be said

that the act of the Applicant to issue cheques of

the said amount in favour of concerned workers and

traders was abetment, instigation or intentionally

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aiding in commission of the suicide. Considering

the circumstances brought on record and also upon

perusal of the investigation papers, it cannot be

said that Ramesh had no option but to commit

suicide due to the act of the Applicant of

issuing the cheques of the sanctioned amount under

the M.R.G.S. Scheme in favour of the workers and

traders. 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. In order to constitute offence under

Section 306 of the I.P. Code, the prosecution must

show that there was instigation or intentional aid

or conspiracy for commission of suicide by the

person who has committed the suicide.

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

Cheena V/s Vijay Kumar Mahajan and another3,

observed that, the abetment involves mental

3 (2010) 12 SCC 190

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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 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

leads 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

commits suicide.

16. 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 another.4 In said case, the deceased

therein was working as driver under the Ex.

4 2010 AIR SCW 5101

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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, "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. 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:-

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"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 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."

17. In the facts of the present case also,

there is no nexus between so called suicide and

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any of the alleged acts on the part of the

Applicant. There is no proximity either. As

already observed, the Applicant has issued

concerned cheques on 26th November, 2015 and

Ramesh Patil (deceased) had committed suicide on

23rd December, 2015 i.e. almost after one month

from the date of issuance of cheques and therefore

the said act cannot be said to be in proximate

date and time of issuance of cheques. Even if the

allegations in the FIR are read in its entirety,

the same would not even remotely suggest that, the

Applicant abetted, intentionally aided or

instigated suicide by Ramesh.

18. In the case of of Dilip s/o Ramrao

Shirasao and others vs. State of Maharashtra and

another (Criminal Application No.332 of 2016)

dated 5th August 2016, 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

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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 under Section 306 of the Indian

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Penal Code, in our considered view, would be an abuse or process of law."

19. 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 the said cheques in favour of

the traders and workers. By any stretch of

imagination it cannot be said that the Applicant

intended or abetted or instigated the deceased

Ramesh to commit suicide. 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 Applicant under Section 306 of the

I.P. Code, in our considered view, would be an

abuse of process of law. Further it is to be noted

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that Ramesh committed suicide on 23rd December,

2015, and the First Information Report was lodged

on 7th March, 2016. Thus, there is inordinate

delay in lodging the First Information Report. The

record shows that initially, on 23rd December,

2015, Accidental Death Case was registered with

police station, and after lapse of period of more

than two months, First Information Report was

filed, and therefore we find considerable force in

the argument of learned counsel appearing on

behalf of the Applicant that possibility of

concoction and false implication cannot be ruled

out.

20. In that view of the matter, the

Application succeeds. the Criminal Application is

allowed. The Criminal Proceeding arising out of

F.I.R. bearing C.R. No.35 of 2016 registered with

Shindkheda police station, Tq-Shindkheda, Dist-

Dhule dated 7th March 2016, for the offence

punishable under Section 306 of the Indian Penal

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Code is quashed and set aside.

21. Rule is made absolute in above terms. The

Application is allowed and stands disposed of,

accordingly.

22. We appreciate the sincere efforts taken

and able assistance rendered by Mr. Shrimant

Munde, learned Amicus Curiae during the course of

hearing of this Application. We quantify

Rs.3500/- (Rupees Three Thousand Five Hundred)

towards fees and expenses of learned Amicus

Curiae.

[MANGESH S. PATIL, J.] [S.S. SHINDE, J.] asb/OCT17