Bombay High Court

Arun Ambadas Pawar vs The State Of Maharashtra And Anr on 10 October, 2017

Bench: S.S. Shinde

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


               CRIMINAL APPLICATION NO.4681 OF 2017


 Arun Ambadas Pawar,
 Age-54 years, Occu:Agriculture,
 R/o-Karanjkalla, Tq-Kallam,
 Dist-Osmanabad.
                                 ...APPLICANT
                      
        VERSUS             

 1) The State of Maharashtra,
    Through Police Station,
    Dharur, Dist-Beed,

 2) Rushikesh Dnyanoba Nakhate,
    Age-22 years, Occu:Business,
    R/o-C/o-Balu Laxman Maikar,
    Deokheda(Nandur), Tq-Majalgaon,
    Dist-Beed.   
                                 ...RESPONDENTS

                      ...
    Mr.A.V. Lavte Advocate h/f. Mr. S.J. Salunke
    Advocate for Applicant.
    Mr.A.R. Kale, A.P.P. for Respondent No.1.
    Notice of Respondent No.2 awaited (affidavit
    of service filed).       
                      ...


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

DATE : 10TH OCTOBER, 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.146 of 2017

registered on 15th June, 2017 with Police Station,

Dharur for the offence punishable under Section

306, 506, 34 of the Indian Penal Code, qua the

Applicant.

3. It is the case of the Applicant that

Dnyanoba Nakhate, father of Respondent No.2, on

13th June, 2017 at 5.00 p.m. committed suicide by

hanging himself in a pick-up van in front of his

house. It is claimed that deceased Dnyanoba left

behind two suicide notes naming six persons,

namely, Pramod Shingare, Laxman Shingare, Bhimrao

Tidke, Balasaheb Farke, Ramesh Farke and Indu w/o

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Balasaheb Farke. It is the case of the Applicant

that the First Information Report discloses that

deceased Dnyanoba was under debt and took the

money on interest from co-accused Pramod Shingare,

Laxman Shingare and Bhimrao Tidke. Though the said

amount was repaid with interest by disposing of

the landed property, said accused persons were

still demanding money from deceased Dnyanoba. It

is alleged in the First Information Report that

deceased Dnyanoba had given hand loan of

Rs.4,00,000/- to accused Balasaheb Farke, Ramesh

Farke and Indu Farke for the education of their

children. The deceased was insisting for repayment

of said amount but said accused were not paying

the same amount and they threatening to kill

Dnyanoba and also harassing him. Due to said

harassment, Dnyanoba committed suicide. On the

said information, crime was registered with police

station, Dharur vide Crime No.146 of 2017.

4. Relying upon the grounds taken in the

Application, learned counsel appearing for the

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Applicant submits that the Applicant is not named

in the FIR, neither his name is reflected in

alleged suicide notes. It is submitted that only

being distant relative of co-accused Ramesh and

Balasaheb, the Applicant was arrested by police,

on the allegation that Applicant told the co-

accused Balasaheb and Ramesh not to repay the

amount to deceased. Learned counsel further

submitted that Applicant is the resident of

village Karanjkalla, Tq-Kallam and he had neither

any concern nor had any monetary transactions with

the deceased or the informant. Though no

allegations are made against the Applicant in the

FIR or alleged chits written by deceased, the

Applicant was arrayed as accused in the crime.

5. Learned counsel further submitted that

the Applicant has no nexus with the alleged

offence. Deceased committed suicide on 13th June,

2017 and the FIR has been lodged on 15th June,

2017. The delay in lodging in the FIR is not at

all explained by the informant, which prima facie

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shows that the allegations are after thought,

concocted and the result of imagination. It is

submitted that the allegations at its face are so

absurd that no prudent person can believe the

same. It is unimaginable that the deceased by

taking the amount on interest from the co-accused,

given the hand loan to Balasaheb, Ramesh and Indu

and Applicant restrained them from repaying the

said amount. The allegations made in the FIR are

vague and sweeping in nature.

6. Learned counsel further submitted that

the three co-accused namely, Balasaheb, Ramesh and

Indu Farke, against whom it was alleged that they

had borrowed hand loan from deceased and Applicant

restrained them from repayment of the said amount,

have filed Criminal Application No.3202 of 2017

for quashing the FIR to their extent in this

Court, and this Court (CORAM: S.S. SHINDE AND A.M.

DHAVALE, JJ.) and by Judgment and order dated 14th

August, 2017 the said Application came to be

allowed.

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7. Learned counsel further submits that the

the FIR does not constitute any prima facie case

or spell out commission of any offence, and hence

the same 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 FIR deserves to be

quashed and set aside qua Applicant, by allowing

the Application.

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

appearing for the State relying upon the

investigation papers submits that the prosecution

agency has collected sufficient material and on

the basis of said material trial can proceed

against the Applicant. Learned A.P.P. submits that

the Application deserves to be dismissed.

9. Though notice was served upon Respondent

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No.2 by the Applicant and to that effect affidavit

of service is filed, none appears for Respondent

No.2.

10. 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 contents of two chits allegedly written by

deceased Dnyanoba before committing suicide.

11. Upon careful perusal of the contents of

the FIR and the contents of said two chits alleged

to have been written by deceased Dnyanoba before

committing suicide, the name of the present

Applicant is nowhere reflected. Apart from it, we

have perused the investigation papers, and it

appears that nothing incriminating has been

revealed against the Applicant during the course

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of the investigation. It is alleged against the

Applicant that, deceased Dnyanoba had given hand

loan of Rs.4,00,000/- to co-accused Balasaheb,

Ramedsh and Indu Farke and present Applicant

restrained the said co-accused from repaying the

said amount of hand loan. If the allegations

against the Applicant are taken as it is, it

cannot be said that the Applicant acted,

instigated or intentionally aided in commission of

suicide by Dnyanoba (deceased). Considering the

circumstances brought on record and also upon

perusal of the investigation papers, it cannot be

said that Dnyanoba had no option but to commit

suicide due to the alleged act of the Applicant of

restraining co-accused from repaying the hand loan

amount to Dnyanoba. 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 Indian Penal

Code, the prosecution must show that there was

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instigation or intentional aid or conspiracy for

commission of suicide by the person who has

committed suicide.

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

Cheena V/s Vijay Kumar Mahajan and another1,

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 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.

1 (2010) 12 SCC 190

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13. 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.2 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. 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

2 2010 AIR SCW 5101

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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."

14. 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 in

the alleged suicide notes, the Applicant is not

even named.

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

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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

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

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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."

16. Therefore, in the light of discussion in

foregoing paragraphs, we are of the opinion that,

considering the allegations against the Applicant

it cannot be said that the Applicant intended or

abetted or instigated the deceased Dnyanoba to

commit suicide. Unless there is clear mes 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 Indian Penal

Code, would be an abuse of process of law. Further