Baburao S/O Manikrao Ghuge vs State Of Mah., Thr. Pso Ps Washim ...
2021 Latest Caselaw 17285 Bom

         apl 846.19 judg.docx                    1



                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                            NAGPUR BENCH, NAGPUR.


                          Criminal Application (APL) No. 846/2019


  1. Baburao s/o Manikrao Ghuge,
     Age 85 years, Occ.-Pensioner,
     R/o Civil Lines, Washim, Tq and Dist. Washim.

  2. Jayshree w/o Baburao Ghuge,
     Age 75 years, Occ.-Household work,
     R/o Civil Lines, Washim, Tq and Dist. Washim.

  3. Nitin s/o Baburao Ghuge,
     Age 57 years, Occ.-Business,
     R/o.-Parmar Park, Pune, Tq. and Dist. Pune.                ... Applicants.


                                       VERSUS

  1. State of Maharashtra
     through Police Station Officer,
     Police Station, Washim (City), Tq.and Dist Washim.

  2. Yogita Kashinath Bhardwaj,
     Age adult, Police Inspector,
     Police Station, Washim (Rural) Tq and Dist. Washim.

  3. Chanda wd/o Shivram Sanap,
     age 50 years, Occ.-household,
     R/o. Plot No.23-S.T. Colony N-2, Cydco,
     Aurangabad, Tq and Dist Aurangabad.                      ...Non-applicants.



                           Criminal Application (APL) No.1168/2021


  1. Abhishek Jagdish Ghuge,
     Aged 37 years, Occ.-Business and Agriculturist,
     R/o.-Civil Lines, Washim, Tq.and Dist.Washim.




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  2. Chanda wd/o Shivram Sanap,
     Age 50 years, Occ. Household,
     R/o Plot No.23-S.T. Coloney N-2, Cydco,
     Aurangabad, Tq. and Dist.Aurangabad.               ... Applicants.


                                    VERSUS

  State of Maharashtra
  through Police Station Officer,
  Police Station, Washim (City),
  Tq and Dist. Washim.                            ... Non-applicant.
  _____________________________________________________________
                Mr. Anil S. Mardikar, Senior Advocate assisted by
         Mr. Ved R. Deshpande for applicants in both applications.
              Mrs. M.A. Barabde, APP for State in both applications.
       Mr. Palash Mohta, Adv (appointed) for non-applicant no.3 in
              (APL 846/19 and complainant in APL 1168/21)
  _____________________________________________________________

                      CORAM: M.S. SONAK & PUSHPA V. GANEDIWALA, JJ.

Reserved on : 30-11-2021.

Pronounced on : 13-12-2021.

JUDGMENT : (Per: Pushpa V. Ganediwala, J.)

Rule. The rule is made returnable forthwith. Heard finally

with the consent of learned Counsel appearing for both sides.

2. The applicants in both these applications are seeking

quashing of First Information Report (FIR) No.47/2019 dated

25-01-2019 registered at Police Station Washim, District Washim, for

the offences punishable under Sections 498-A, 306, 323, 504, and 506

of the Indian Penal Code (IPC). This Court issued notice on 28-08-2019

to the non-applicants and by way of interim relief directed that though

the investigation shall be carried on, no chargesheet shall be filed

without obtaining leave of this Court.

3. Application (APL) No.1168/2021 is the joint application

filed by the applicant No.1/accused/Abhishek Ghuge/husband and

applicant no.2 Chanda Sanap/mother of the deceased Neeta Abhishek

Ghuge for quashing of the aforesaid FIR on the ground of settlement

between the parties.

4. Applicant nos. 1 to 3 in Criminal Application (APL)

No.846/2019 are the relatives of applicant-husband Abhishek Ghuge.

The allegations against these applicants in the FIR are that these

persons were supporting the applicant husband. There are absolutely

no specific allegations against these applicants about their role in the

abetment of suicide by the deceased.

5. The applicant no.2 in Criminal Application (APL)

No.1168/2021, the mother of deceased on whose complaint the

aforesaid crime came to be registered now states that she had lodged

the report under rage and without giving a proper thought to the

factual situation. It is stated that she was unable to take a balanced

decision and was driven by the sorrow of the loss of her daughter who

was suffering from mental disorder and committed suicide due to a

vulnerable mental condition. Finally, applicant no.2 states that she

does not want to pursue further the prosecution against the applicant

no.1-Abhishek Ghuge and the other applicants/accused.

6. In the FIR, it is alleged that the applicant Abhishek, the

husband of the deceased Neeta was having extra-marital affair with

some other girl, due to which the deceased was undergoing physical

and mental harassment at the hands of her husband and relatives,

which culminated in her suicide.

7. Learned Senior Counsel Mr. Mardikar urged for quashing

of the FIR as this is not a case of abetment of suicide of the deceased at

the hands of the applicants as there are no direct allegations against

the applicants with regard to their willful conduct which is of such a

nature which drove the deceased to commit suicide. Mr. Mardikar

further stated that the mental condition of Neeta was not good as she

was undergoing psychiatry treatment since the year 2016. On earlier

occasion also in 2011 she attempted to commit suicide. Learned Sr.

Counsel urged that in similar facts situations this court and other High

Courts have quashed the FIR on the ground of compromise between

the parties. Mr. Mardikar in support of his submissions relied on the

judgment of the Division Bench of this Court in Rajik Ahmad Anwar

Ahmad vs State of Maharashtra and another in Criminal Application

(APL) No.36/2018 dated 22-06-2018 (Coram -R.K. Deshpande and

Arun D. Upadhye, JJ.) wherein this Court based on the judgment in the

case of Dilip s/o Ramrao Shirasao and Ors. vs State of Maharashtra

and another, reported in 2016 ALL MR (Cri) 4328 quashed the FIR

registered for the offence punishable under Section 306 of the IPC on

the ground that the complainant/informant has settled her score with

the applicants.

8. Learned Senior Counsel Mr. Mardikar also relied on the

judgment in the case of Harmesh Singh and another vs State of Punjab

and another, reported in CRM-M-37957-2015 date 09-02-2017. In the

said judgment the High Court of Punjab and Haryana at Chandigarh

placed reliance on the series of judgments of other High Courts and

quashed the FIR for the offence punishable under Section 306 of the

IPC, on the basis of compromise arrived at between the parties.

9. Learned Senior Counsel Mr. Mardikar also relied on the

judgment of the Hon'ble Supreme Court in the case of Narinder Singh

and others vs State of Punjab and another reported in (2014) 6 SCC

466 and emphasised that since the parties have settled the matter

between themselves and considering the mental condition of the

deceased, no purpose would be served to compel the applicants to face

the criminal trial and the ends of justice would require that the FIR

registered against the applicants shall be quashed.

10. The learned APP appearing on behalf of the State by filing

an affidavit in reply opposed the application and submitted that suicide

note clearly shows that the deceased was being illtreated by her

husband Abhishek. In paragraph 6 of the reply it is stated that in the

diary seized by the investigation agency the victim has mentioned that

she had tried to commit suicide in the year 2011 as there was loan on

the family as well as victim was under stress about her marriage that

how her mother will bare the expenses of the marriage and her father

had expired and there was a younger brother to take care and

therefore tried to commit suicide. Finally, the learned APP requests this

Court to pass an appropriate order.

11. We have considered the rival submissions put forth on

behalf of the parties. We have minutely perused the police case papers/

proposed chargesheet. We have personally interviewed the informant

who is present before this Court.

12. Because the offence punishable under Section 306 of the

IPC has been invoked against the applicants/accused, which is a

serious offence punishable with imprisonment for a term which may

extend to 10 years and considering the fact that the deceased had to

undergo physical and mental trauma due to the alleged extra marital

affair of her husband Abhishek, initially, we were reluctant to quash

the FIR despite there was a compromise between the parties. To satisfy

ourselves about the nature of allegations, we called upon the police

investigation papers/chargesheet for our perusal.

13. A perusal of the chargesheet, which is proposed to be filed

against the applicants, it is revealed that deceased Neeta had written in

one diary about the illicit relations of applicant Abhishek with one girl

due to which she was undergoing physical and mental trauma. The

chargesheet also reveals that during the period between 2016 and

November 2018 the deceased was under the treatment of psychiatrists

namely Dr. Prabhakar Rathod, Psychiatrist, Washim, Dr. Sanjeev Saoji,

Psychiatrist, Aurangabad, Dr. Ulhas Luktuke, Psychiatrist, Pune and Dr.

Deole, Washim.

14. The report of her psychological testing dated 05-05-2016

reveals the following history of complaint about the deceased Neeta :-

"The applicant was admitted by mother because two days before this is 2nd episode of fainting, depressive feelings, isolated behavior, irritability, ant sensations in body, lack of concentration in work, 1st episode - 4 yrs before after death of father she was fainted had taken treatment at our hospital for the same. Mother has psychopathology. "

15. The results of the report are stated as under :-

"This test was administered to understand the personality traits of the client.

On Axis II, the elevated scale in 8A (Negativistic) =80 show the may have fear of rejection, feelings of inadequacy and a tendency to have mood changes, may assume that people will eventually develop uncomplimentary opinions about her and will get reject.

On Axis I, elevated scales are CC(Major Depression) = 84, D(Dysthymia)=77 and A(Anxiety Disorder)=75.

Overall, test profile suggests that client may be benefited from psychotherapy and pharmacotherapy."

16. The report of psychological testing further reveals that in

the year 2011 Neeta was admitted to his hospital as she was under

mental trauma and attempted suicide on the death of her father as she

had an anxiety as to how her single mother would repay bank loan so

also arrange finance for her marriage and maintain her brother Amol.

17. The mother of the deceased conceded that the mental

condition of the deceased was not stable. It appears that the deceased

Neeta was not mentally fit to withstand the shock of the illicit relations

of her husband with some other girl. The incident of suicide is in

January 2019 and her last check-up with Dr. Luktuke, the Psychiatrist,

is of November 2018.

18. In the joint application, the applicant no.2/mother of

the deceased, in paragraphs 3, 4, 5 and 6 has mentioned about the

mental condition of the deceased and about her regular treatment. In

the said application she has stated that it was advised by Dr. Luktuke in

November 2018 that care of Neeta should be taken and she should not

be left alone in the house and therefore, she stayed with her house at

Washim for her safety and as soon as she left Washim and on the way

to Aurangabad she received the information about the commission of

suicide by the deceased. Applicant no.2, the mother of the deceased,

further stated that due to her vulnerable mental condition on the death

of her daughter she lodged the report. Now she does not want to

prosecute further against the applicants.

19. In this context, the judgment of the Constitution Bench of

Hon'ble Apex Court in Joseph Shine V. Union of India 2018 ALL M R

(Cri.) 4065(S.C) as relied on by Mr. Mardikar would be worth seeing.

In this judgment, their Lordships while considering the question of

constitutionality of Section 497 of lPC , in para 50, endorsed the view

taken by Division Bench of the Apex Court in Pinakin Mahipatray

Rawal V. State of Gujrat (2013)10SCC 48) and held that mere extra-

marital relationship, without anything more cannot be treated as

sufficient to invoke the provisions of Section 306 IPC. In Pinakin

Rawal, the Apex Court observed that mental cruelty varies from

individual to individual also depending upon the intensity and the

degree of endurance, some may meet with courage and some other

suffers in silence, to some it may be unbearable and a weak person

may think of ending one's life. Their Lordships in Joseph Shine have

quoted with approval a part of para 21 from the judgment in

Ghusabhai Raisangbhai Chorasiya V. State of Gujrat, (2015)11 SCC 753

wherein it is held that unless some other acceptable evidence is

brought on record to establish such high degree of mental cruelty, the

Explanation (a) to Section 498-A IPC, which includes cruelty to drive

the woman to commit suicide, would not be attracted.

20. In the above conspectus and considering the material in the

chargesheet and the settlement between the parties and in view of the

ratios in the judgments in the case of Narindersingh (supra) and B. S.

Joshi v. State of Haryana, 2003 (4) SCC 576, in our view, the interest

of justice would demand that no purpose would be served in

continuing the criminal proceedings against the applicants. At this

stage we also note that there is absolutely no case made out to proceed

against the relatives of the husband. The allegations, even if taken at

their face value do not make out any offences as alleged. In the

circumstances, we allow both the applications.

21. At this stage, learned APP urges that the applicants should

deposit some amount towards costs for using police machineries and

precious time of this Court. On this, the learned Senior Counsel Mr.

Mardikar spontaneously showed willingness to deposit Rs. 50,000/- in

the account of the High Court Legal Aid Services Sub-Committee,

Bench at Nagpur within a period on one week. The statement is

accepted as an undertaking to the Court.

22. In this view of the matter, we allow both the applications

and pass the following order :

(i) The Criminal Application (APL) Nos.846/2019 and

1168/2021 are allowed.

(ii) The First Information Report No.47/2019 registered

on 25-01-2019 against the applicants with the non -

applicant-Police Station Washim City for the offences

publishable under Sections 306, 498-A, 323, 504 and

506 of the IPC is quashed and set aside.

(iii) Fees of learned Counsel Mr. Palash Mohta, appointed

for the non-applicant no.3-Chanda Sanap in both the

applications shall be quantified as per rules.

(iv) This order shall be effective on depositing the costs

of Rs. 50,000/- in terms of this order.

23. Rule is made absolute in the above terms. Pending

application(s), if any, stand(s) disposed of.

            (Pushpa V. Ganediwala, J.)                      (M.S. Sonak, J.)




 Deshmukh