Hafizur Rahman Sheikh vs The State Of Maharashtra And ...
2021 Latest Caselaw 12043 Bom

                                        1
                                                       Cri.Appln.316-2021

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                           BENCH AT AURANGABAD

                     CRIMINAL APPLICATION NO. 316 OF 2021

Hafizur Rahman Sheikh,
Age 40 years, Occu. Business,
R/o City House, 55, Maruti Lane,
Near Handloom House,
Fort, Mumbai                                                    ..Applicant

       Versus

1.     The State of Maharashtra,
       Through Karmad Police Station,
       Taluka and District Aurangabad

2.     Mrs Gayatri Keshav Wankhede,
       Age 33 years, Occu. Household,
       R/o Isapur Ramna,
       Taluka and District Hingoli,
       At present Taluka Colony,
       Sai Sankalp Building No.7,
       Old Panvel                                               ..Respondents

Mr V.D. Sapkal, Senior Advocate i/b Mr S.R. Sapkal along with Mr T.M. Shaikh,
Advocates for applicant
Mr Anand S. Shinde, A.P.P. for respondent no.1/State
Mr Vishnu Patil Advocate (appointed) for respondent no.2


                                 CORAM : V. K. JADHAV AND
                                        SHRIKANT D. KULKARNI, JJ.


                          JUDGMENT RESERVED ON : 17.08.2021
                          JUDGMENT PRONOUNCED ON : 30.08.2021


JUDGMENT (Per Shrikant D. Kulkarni, J.)

1. Heard finally at admission stage with consent of both the sides.

2. By this application under Section 482 of Cr.P.C., the applicant is seeking

relief of quashing of F.I.R. vide C.R.No.31 of 2020, registered with Basamba

Police Station, District Hingoli, for the offences punishable under Sections 306,

506 read with Section 34 of the Indian Penal Code.

Cri.Appln.316-2021

3. Keshav Babhnaji Wankhede (since deceased) was serving as Police

Constable in Mumbai Police. Gayatri Keshav Wankhede/respondent no.2 (first

informant) happened to be his wife. Keshav along with his friends Suhas Bhise,

Rahul Bhise, Vinod Patil, Satish Chavan, one Mr. Talbhandare and Sunil Shirke

had purchased one plot each in the year 2008 at village Devat near Panvel.

They sold their respective plots and they had purchased two acres of land at

village Vihighar from Mr Shailesh Dawda (accused no.2).

4. During this time, deceased met with applicant. The applicant informed

the deceased that he was willing to purchase adjoining land and further shown

readiness to make construction thereon together. Mr Shailesh Dawda played

role as a broker and took Rs.7 lakhs from them. The applicant has paid Rs.1

Crore to deceased Keshav and then deceased purchased adjoining land from

Shailesh Dawda. They formed company in the name of first informant under

name and style as "Icon Builders and Developers".

5. The applicant alleged to have started harassing deceased by making

demand of money, which was paid to deceased Keshav for purchase of land.

About one and half years before, applicant alleged to have forcibly got

transferred both the plots in his name by threatening the husband of the first

informant.

6. Keshav started business of share trading and marketing and invested

amount in Ventura Company of accused no.3/Jayant Patil by collecting money

from various persons. Accused no.3/Jayant Patil initially gave good returns to

deceased Keshav, however, later on, after four months, accused Jayant Patil

ran away from the said business, due to which Keshav sustained huge loss in

his business.

Cri.Appln.316-2021

7. It is further alleged that deceased Keshav had earlier purchased

construction office from accused no.2/Shailesh Dawda for an amount of Rs.1

Crore by a registered sale-deed. But, the said office was found already

mortgaged with the Bank and that fact was suppressed by accused no.2.

Deceased Keshav was continuously under tension due to abovesaid events.

He fell ill and he was hospitalised on 5.1.2020 in Life Care Hospital at Panvel.

8. In the month of February 2020, mother-in-law of the first informant was

not feeling well. Therefore, Keshav and his wife/first informant along with

children went to village Isapur Ramna. On 12.2.2020, first informant went to

her parental house at village Satamba. Whereas, Keshav was at village Isapur

Ramna. On 13.2.2020, Dr. Sarang (nephew of deceased Keshav) informed the

first informant that her husband has committed suicide by hanging himself to a

tree in agricultural land.

9. On 20.2.2020, Gayatri Keshav Wankhede (respondent no.2) came to

Basamba Police Station, District Hingoli and lodged F.I.R. against the applicant

and three others. She alleged that her husband has committed suicide due to

harassment caused by the applicant and co-accused. Her husband was

continuously in stress because of huge losses suffered in the business of

plotting and construction. It is alleged that applicant and his associates caused

harassment and by using influence and pressure, got transferred the landed

property standing in the name of first informant and her husband. The applicant

alleged to have refused to execute agreement relating to the plots and caused

mental torture. According to the first informant, her husband Keshav has

committed suicide due to continuous harassment and torture caused by the

applicant and his two associates.

Cri.Appln.316-2021

10. On the basis of F.I.R. lodged by Gayatri (respondent no.2), Crime No.31

of 2020 came to be registered with Basamba Police Station, District Hingoli, for

the offences punishable under Sections 306, 506 read with Sec. 34 of the

Indian Penal Code against the applicant, Shailesh Dawda, Jayant Patil and

Suresh Thombre.

11. Heard Mr V.D. Sapkal, learned Senior Counsel instructed by Mr S.R.

Sapkal along with Mr T.M. Shaikh, learned Advocates for applicant, Mr Anand

S.Shinde, learned A.P.P. for respondent no.1/State and Mr Vishnu Patil,

learned Advocate for respondent no.2/first informant.

12. Perused copy of F.I.R. bearing Crime No.31 of 2020 registered with

Basamba Police Station, District Hingoli, copies of registered documents

executed between the parties etc.

13. Mr V.D. Sapkal, learned Senior Counsel for the applicant vehemently

submitted that abovesaid crime is registered only with a view to harass the

applicant. There is no prima facie material to attract Section 306 of the Indian

Penal Code as well as other penal sections. There were transactions of land

dealing, plots and construction activities between the deceased Keshav,

applicant and co-accused at Panvel. All the documents were registered as per

the provisions of Registration Act. Deceased Keshav was serving in Police

Department. He was very well knowing about the land dealings as well as

activities of construction company. He sustained loss in his share marketing

business for which applicant is not responsible. Mr Sapkal, learned Senior

Counsel submitted that entire F.I.R. is silent about the allegation of Section 306

of Indian Penal Code. Except vague and omnibus allegations about some

transaction which is by executing registered instrument, no specific role is

Cri.Appln.316-2021

ascribed against the applicant in alleged instigation which would have driven

the deceased to commit suicide. He submitted that there was not a single

complaint lodged against the registered deed of cancellation of development

agreement dated 26.6.2018 by the first informant and her deceased husband. It

is only after the occurrence of incident dated 13.2.2020, the applicant is falsely

roped in the present crime. The F.I.R. does not give any particulars as to the

alleged role of the applicant in the commission of alleged offences.

14. Mr Sapkal, learned Senior Counsel submitted that the alleged incident of

suicide was occurred on 13.2.2020 and F.I.R. came to be registered on

21.2.2020. There is enormous delay of ten days in lodging the F.I.R. and the

same is not at all explained. The foundation of the F.I.R. is itself on doubtful

platform. He submitted that even if the allegations levelled against the

applicant in the F.I.R. are taken at its face value, no cognizable offences are

disclosed against the applicant. It would be an abuse of process of the Court, if

criminal prosecution is continued. He submitted that applicant had demanded

certain amount to the deceased, which does not amount to abetment of suicide.

15. Mr Sapkal, learned Senior Counsel has placed his reliance on following

stock of citations :

(i) Dayanand Tanaji Mohre Vs. State of Maharashtra, reported in 2017 (6) LJSOFT 132;

(ii) Suhas @ Pappu Sarjerao Kakde & Ors. Vs. State of Maharashtra, reported in 2017 (8) ljsoft 77;

(iii) Munshiram Vs. State of Rajasthan and ors., reported in (2018) 5 SCC 678;

(iv) Binod s/o Ratan Sarkar & Ors., Vs. The State of Maharashtra and Anr., reported in 2014 ALL MR (Cri) 1216;

Cri.Appln.316-2021

(v) Netai Dutta Vs. State of West Bengal, reported in 2005 (1) B Cr C 666;

(vi) Pandhari s/o Narayan Somwanshi and anr., Vs. State of Maharashtra and anr., reported in 2011 (4) B C R (Cri) 309;

(vii) M.Mohan Vs. The State, reported in 2011 (2) Mah.L.R.1 SC;

(viii) Deepak Prabhakarrao Chondekar Vs. State of Maharashtra, reported in 2012 (1) Mh.L.J. (Cr 432);

(ix) Madan Mohan Singh Vs. State of Gujarat and anr., reported in 2010 (4) B Cr C 284 SC;

        (x)      M. Arjunan V. State reported in AIR 2019 SC 43;

        (xi)     Sopan s/o Angadrao Akele Vs. The State of           Maharashtra
                 and anr., reported in 2017 ALL MR (Cri) 1829

16. Mr Sapkal, learned Senior Counsel, by taking help of abovesaid citations

submitted that criminal prosecution launched against the applicant is liable to

be quashed when there is no material on record to speak about intention of

applicant to aid or to instigate or to abet the deceased to commit suicide. The

deceased was mentally disturbed and was not in a fit state of mind and

committed suicide. There is no material to attract Section 506 of Indian Penal

Code.

17. Per contra, Mr Anand S. Shinde, learned A.P.P. for respondent

No.1/State submitted that if the allegations levelled in the F.I.R. against the

applicant are examined carefully, it would be clear as to the role played by the

applicant. He submitted that the deceased was continuously harassed by the

applicant and his associates for non payment of amount. The applicant has

Cri.Appln.316-2021

played active role in the commission of abetment of suicide by the deceased.

The investigation is in progress. He submitted that the manner in which the

deceased has committed suicide, it needs detail and thorough investigation.

18. Mr Vishnu Patil, learned Counsel for respondent no.2/first informant

argued on the lines of argument advanced by learned A.P.P. He submitted that

it is not a fit case to quash the F.I.R. when investigation is in progress. There is

prima facie material against the applicant regarding abetment of suicide. The

deceased was continuously harassed and tortured by the applicant for payment

of money though applicant was knowing about financial crisis of the deceased.

He submitted that applicant instigated the deceased to commit suicide as per

the contents of the F.I.R. Mr Patil submitted that the applicant has not made

out a case to quash the F.I.R. He has placed reliance on following citations in

support of his argument :

(i) Jayshri Vs. The State of Maharashtra and Ors., reported in 2021 ALL

MR (Cri) 1640;

(ii) Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi), reported in

(2009) 16 SCC 605

19. We have considered the submissions of learned Senior Counsel Mr

Sapkal for the applicant, Mr A.S. Shinde, learned A.P.P. for respondent

no.1/State and Mr Vishnu Patil, learned Advocate for respondent no.2/first

informant. We have also perused stock of citations relied upon by both the

sides in the background of their submissions.

20. 'Abetment of a thing' has been defined under Section 107 of the

Indian Penal Code, which reads thus :

Cri.Appln.316-2021

"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.

Explanation 2 which has been inserted along with section 107 reads as under :

Explanation 2 - Whoever either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."

21. In view of citation in case of M. Mohan Vs. State, represented by the

Deputy Superintendent of Police, 2011 (3) Mh.L.J. (Cri.) 1271, abetment is

the 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.

22. Now coming back to factual compass of the case in hand. It is evident

from the documents produced by the applicant that there were transactions

between the applicant, co-accused and the deceased since the year 2016 in

respect of dealing of lands, plots and building construction activity. All the

transactions taken place between the parties are duly registered. One civil suit

between the parties is also pending in the Court of Civil Judge, Senior Division

Cri.Appln.316-2021

at Panvel. On careful examination of the contents of the F.I.R., two important

things are noticed by us, (i) the deceased was under tremendous financial

stress and (ii) he seems to have mentally disturbed due to loss in the business.

On careful scrutiny of the F.I.R., it is very much difficult to gather that the

applicant has abetted or instigated the deceased to take extreme step of

suicide. There is no material in the F.I.R. to show that the applicant and his

associates hatched conspiracy in order to do thing of illegal omission. It is

further difficult to gather that the applicant, either prior to or at the time of

commission of an act, did anything in order to facilitate commission of the act of

suicide by the deceased.

23. Merely because the applicant was insisting for his money on account of

dealings between the parties does not mean to abetment of suicide. There

must be proof of direct or indirect acts of incitement to the commission of

suicide, as held in case of Binod s/o Ratan Sarkar Vs. State of Maharashtra

(supra).

24. All the transactions had taken place between the parties with regard to

land dealings, plots and construction development activities at Panvel and Navi

Mumbai. It is important to note that all the transactions were duly registered

between the parties and first informant was also knowing about the same. If

applicant and his associates alleged to have used any influence or used

unlawful means to pressurise the decease for demand of money or otherwise,

the deceased being a Police Constable was knowing very well to resort to legal

remedy. It is difficult to accept that because of money dispute on account of

certain dealings, it amounts to instigating or intentionally aiding to commit

suicide by the deceased.

Cri.Appln.316-2021

25. Upon microscopic examination of the contents of the F.I.R., it is difficult

to gather ingredients of offence of abetment of suicide and criminal intimidation.

The ingredients are absent to attract abetment of suicide and criminal

intimidation against the applicant.

26. On perusing the police papers made available by the learned A.P.P., it is

revealed that deceased had committed suicide at his native place Isapur

Ramna. As per post mortem report and provisional cause of death certificate,

"death of Keshav Babhnaji Wankhede is due to hanging". There are certain

statements of witnesses in the nature of hearsay and no incriminating material

seems to have been collected by the Investigating Officer to attract Section 306

and 506 of the Indian Penal Code against the applicant.

27. Mr Vishnu Patil, learned Advocate for respondent no.2 has placed his

reliance on Jayshri Vs. The State of Maharashtra and Ors. (supra) and

argued that it is not a fit case to quash F.I.R. On perusing the facts of said

case, we noticed that two suicide notes were left behind by the deceased.

Such is not the position in the case in hand. The said citation does not render

any help. Mr Patil has also referred the citation in case of Chitresh Kumar

Chopra Vs. State (Govt. of NCT of Delhi) (supra). On going through the

same, it is revealed that it is in respect of evaluation of evidence at the time of

framing of charge. It is held by the Hon'ble Supreme Court that there was

sufficient material on record to frame charge under Section 306 of the Indian

Penal Code and trial Court has not committed any error in framing charge

punishable under Section 306 read with Sec. 34 of the Indian Penal Code.

Again, the facts are distinguishable and said decision is not anyway helpful to

the first informant. We are dealing with quashing of F.I.R. by invoking inherent

powers under Section 482 of Cr.P.C.

Cri.Appln.316-2021

28. On careful examination of the F.I.R., if the allegations made in the F.I.R.

even if they are taken at their face value and accepted in its entirety, prima

facie does not constitute offence punishable under Section 306 and 506 of the

Indian Penal Code. The criminal proceedings seems to have been initiated by

the first informant/respondent no.2 against the applicant with some oblique

motive to get back the money or some monetary benefits.

29. The Hon'ble Supreme Court in a recent judgment in case of Shabbir

Hussain Vs. The State of Madhya Pradesh and others (Special Leave to

Appeal (Criminal) No.7284 of 2017 SC dated 26.7.2021 has held as under :

" In order to bring a case within the provision of Section 306 IPC, 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 instigating or by doing a certain act to facilitate the commission of suicide.

Mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to an offence under Section 306 of IPC [Amalendu Pal V. State of West Bengal (2010) 1 SCC 707].

Abetment by a person is when a person instigates another to do something. Instigation can be inferred where the accused had, by his acts or omission created such circumstances that the deceased was left with no other option except to commit suicide. [Chitresh Kumar Chopra v. State (Government of NCT of Delhi) (2009) 16 SCC 605]".

Cri.Appln.316-2021

30. Having regard to the legal position reiterated by the Honourable

Supreme Court in the case of Shabbir Hussain Vs. State of M.P. and ors

(supra), it is difficult to attract Section 306 of Indian Penal Code against the

applicant. There is no sufficient material on record to attract Section 306 and

506 of Indian Penal Code.

31. By invoking powers vested in us under Section 482 of Cr.P.C., the

criminal proceedings against the applicant needs to be quashed. If it is allowed

to continue, would be an abuse of process of the Court and the ends of justice

require that the F.I.R. ought to be quashed. The saving of the High Court's

inherent powers, both in civil and criminal matters, is designed to achieve a

salutary public purpose, which is that a Court proceedings ought not to be

permitted to degenerate into a weapon of harassment or persecution.

32. In view of the above, there is no propriety to continue the criminal

prosecution against the applicant and put him on trial in the above factual

scenario. It would be an abuse of the process of the Court and machinery and

waste of valuable time of the Court in asking the applicant to face the trial.

33. In the result, we proceed to pass the following order :

ORDER

1. The Criminal Application stands allowed in terms of prayer clause (B).

2. The professional fees of Mr Vishnu Patil, learned Advocate appointed for

respondent no.2 is quantified at Rs.2,000/- (Rs.Two thousand). The Secretary,

High Court Legal Services Sub-Committee at Aurangabad shall pay the same

to the learned Advocate Mr Vishnu Patil.

      ( SHRIKANT D. KULKARNI, J.)                    ( V. K. JADHAV , J.)
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