Sakshi @ Saroj D/O. Ishwar Mesare vs The State Of Mah. Thr. Pso Ps ...
2021 Latest Caselaw 14963 Bom

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

                          Criminal Application (APL) No.575/2021

Sakshi @ Saroj d/o Ishwar Mesare,
Aged about 22 years, Occ.-Student,
R/o.-Karlar Road, Pawarleout, Wardha, Dist. Wardha.                    ... Applicant

                                             Versus

State of Maharashtra,
through P.S.O. Police Station Kalmeshwar, Dist. Nagpur.                 ... Non-applicant.

************************************************************************
                       Ms. Amruta Gupta, Advocate for applicant.
                            Shri. I.G. Damle, APP for State.
************************************************************************

                                        CORAM : V.M. DESHPANDE &
                                                PUSHPA V. GANEDIWALA, JJ.

DATE : 13-10-2021.

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

Rule. Rule made returnable forthwith. Heard finally with the consent

of both the parties.

2. Applicant Sakshi @ Saroj Mesare, by way of this application filed

under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'), is

seeking quashment of the First Information Report (FIR) registered vide Crime

No.44/2021 Station Kalmeshwar, District Nagpur for the offence punishable under

Section 306 of the Indian Penal Code.

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3. The facts in nutshell may be stated as under :-

The applicant is the student pursuing her Air Hostess Training (Cabin

Crew Course) at Fly Fin Institute situated at Lucknow since the year 2019.

Simultaneously, she is also pursuing her B.Com. from the Yeshwantrao Open

University at Selu, District Wardha.

4. It is stated that the applicant and the deceased Pranay More were in

love affair since 2018. For Air Hostess training, the applicant had to move to

Lucknow in 2019. It is stated that the deceased was of suspicious nature and

suspected that after moving to Lucknow, the applicant has love affair with some

other boy. The applicant tried to convince him that she does not have any love

affair with anyone else but the deceased was not ready to accept the same.

5. It is further stated that on 11-02-2020, the applicant appeared for

walk in interview at Lucknow, for placement at Vistara Airlines. After her

interview, she started for Nagpur by train and on 12-02-2020 she reached Nagpur

at 11.00 am. The deceased had come to pick up her. The deceased took her at his

rented accommodation at 14th Mile on his motorcycle.

6. It is further stated that due to long journey the applicant took rest

and felt asleep. But at about 3.00 pm suddenly she woke up after hearing noise

of glass falling on the floor and was surprised to see deceased Pranay More

hanging himself to the ceiling fan with a wire. The applicant immediately called

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close friend of deceased namely Rohit Ranjari. The information reached to other

friends of the deceased and they came to the spot.

7. On the report of one Sunil Borkar, Police Station Kamleshwar,

registered Marg Entry No.11/2020 under Section 174 of the Cr.P.C. The Police

reached the spot and brought down the dead body and after completing

formalities sent the dead body for post mortem. It is stated that the Police also

seized mobile of the deceased and the applicant and draft suicide notes dated

25-11-2019 and 12-02-2020 saved in the mobile of the deceased.

8. It is further stated that after lapse of about one year from the date of

incident of 23-01-2021 the non applicant registered Crime No.44/2021 against

the applicant for the offence punishable under Section 306 of the Indian Penal

Code (for short, 'I.P.C.'). On 09-02-2021, the applicant came to be arrested and on

12-02-2021, she came to be released on regular bail by the Court of Additional

Sessions Judge, Nagpur.

9. It is stated that the registration of FIR No.44/2021 against the

applicant cannot be justified unless the preliminary enquiry disclosed some

positive act or conduct of applicant which might have compelled the deceased to

commit suicide. Bare perusal of FIR does not disclose commission of any act on

the part of the applicant that she abetted the deceased to commit suicide.

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10. It is further stated that the trial Court while granting bail has

mentioned that perusal of the suicide note in the case diary, merely it reveals that

the deceased was having sincere love for the applicant and he was disappointed

feeling that the applicant deceived him. Lastly, it is submitted that there is no

direct or indirect or omission on the part of the applicant so as to abet the

deceased to commit suicide.

11. In response to the notice issued by this Court, the non-applicant-State

filed affidavit in reply. A perusal of the same, it would reveal that on the report of

Chandrashekhar Sawad, Head Constable, FIR came to be registered as FIR

No.44/2021 for the offence punishable under Section 306 of the IPC. It is stated

that the applicant and the deceased were having love affair from last 2/3 years

and both had filed one affidavit before the Court of Marriage Registrar, Wardha

that they are willing to marry with each other and applied for Marriage Certificate

before the Executive Magistrate, Wardha. It is stated that thereafter the deceased

came to know that the applicant was having love affair with another boy since last

six months, for that reason the deceased was under tremendous mental stress

which culminated in the commission of suicide by the deceased on 12-02-2020.

12. It is further submitted that from the suicide note of the deceased, it is

revealed that the present applicant instigated the deceased for suicide. During

investigation, the statements of witnesses have been recorded and from material

collected during the investigation, it transpired that the present applicant was

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present at the time of suicide and due to the present applicant's instigation, the

deceased had taken the extreme step of hanging himself.

13. Learned Counsel for the applicant Ms Amruta Gupta reiterated the

contents in the application and submitted that after one year of the incident, the

FIR came to be registered. Furthermore, the allegations in the FIR even if taken to

be true, a case for commission of a cognizable offence is not made out. Learned

Counsel further submits that only because the applicant was present and she

could not resist the deceased from hanging himself, the inference of direct

instigation or abetment of suicide cannot be drawn. The learned Counsel urged

to quash and set aside the FIR No.44/2021 registered against the applicant.

14. On the contrary, learned APP on behalf of the State opposed the

application mainly on the ground that during investigation ample material has

been collected by the investigating agency against the applicant and the applicant

has failed to make out any case in which exceptions carved out by the Hon'ble

Supreme Court in the case of State of Haryana and others V Ch. Bhajan Lal and

others, reported in AIR 1992 SC 604. It is further submitted that the applicant

has also failed to make out any case for exercise of jurisdiction under Section 482

of the Cr.P.C. by this Court.

15. We have considered the rival submissions and perused the record. We

have also perused the police case diary. At the outset, it is well settled legal

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position that the High Courts are sparingly and consciously exercise the power

under Section 482 of the Cr.P.C. to prevent miscarriage of justice.

16. In the case of State of U.P. vs O.P. Sharma, reported in (1996) 7 SCC

705, three Judges Bench of the Hon'ble Apex Court reviewed the entire case law

on the exercise of power by the High Court under Section 482 of the Cr.P.C. to

quash the complaint or the chargesheet or the First Information Report and held

that the High Court would be loath and circumspect to exercise its extraordinary

power under Section 482 of the Cr.P.C. or under Article 226 of the Constitution.

The Court would consider whether the exercise of the power would advance the

cause of justice or it would tantamount to abuse of the process of the Court.

17. The Hon'ble Apex Court in number of cases has laid down the scope

of ambit of Courts's powers under Section 482 of the Cr.P.C. Every High Court

has inherent power to act ex debito justitiae to do real and substantial justice for

the administration of which alone it exits, or to prevent abuse of the process of the

Court.

18. In R.P. Kapur Vs State of Punjab reported in AIR 1960 SC 866 the

Hon'ble Apex Court inter alia held that the inherent power can and should be

exercised to quash the proceedings where the allegations in the First Information

Report or complaint taken at their face value and accepted in their entirety do

not constitute the offence alleged.

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19.               In State of Karnataka      vs   L Muniswami and others, reported in

(1977) 2 SCC 699, the Hon'ble Apex Court observed that the wholesome power

under Section 482 of the Cr.P.C. entitles the High Court to quash a proceeding

when it comes to the conclusion that allowing the proceeding to continue would

be an abuse of the process of the Court or that ends of justice require that the

proceeding ought to be quashed.

20. In Zandu Pharmaceutical Works Ltd and others vs Mohd Sharaful

Haque and another, reported in (2005) 1 SCC 122 the Hon'ble Apex Court

observed that it would be an abuse of process of the Court to allow any action

which would result in injustice and prevent promotion of justice.

21. Now coming to the facts of the case, the love affair between the

applicant and the deceased is not disputed. It is also not disputed that at the

time of incident the applicant was present in the rented accommodation of the

deceased. Initially Marg report was registered as to cause of death and FIR came to

be registered after around one year of the incident on the advice received from the

District Government Pleader. A perusal of the FIR would reveal that the deceased

came to know about love affair of the present applicant with some other boy and

therefore the deceased was under mental stress and committed suicide. A perusal

of suicide note would reveal that the deceased was blaming himself for his love

for the applicant and he was feeling sorry that he did not listen to his mother.

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22.               At this juncture, it would be advantageous to refer to              Section

306 of the IPC which provides that if any person commits suicide, whoever abets

the commission of such suicide, shall be punished with imprisonment. The

ingredients of abetment are set out in Section 107 of the IPC which reads as

under :

"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.

XXXXXXXX

23. In the case of Ramesh Kumar vs State of Chhattisgarh, reported in

(2001) 9 SCC 618, three Judges Bench of the Hon'ble Apex Court interpreted the

word 'instigation' in paragraph 20 which reads as under :-

"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt

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out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."

24. Keeping in mind the aforesaid ratio of the Hon'ble Apex Court, now

we propose to examine the case before us. Admittedly, the direct or positive act of

instigation on the part of the applicant to commit suicide by the deceased is

conspicuously absent in the FIR or other police papers collected during

investigation. The standalone allegation is that the applicant was present when he

committed suicide and she failed to resist him. By no stretch of imagination, the

applicant can be fastened with the offence of commission of abetment of suicide.

The present case is not a case where the applicant by her acts or omissions or by a

continued course of conduct created such circumstances that the deceased was left

with no other option except to commit suicide in which case an instigation may

have been inferred. What is transpired from the record is only that the deceased

was sincerely loving her and when he came to know about her affair with some

other boy, the deceased could not bear the same and took the extreme step.

25. Most importantly, even from the suicide note the prosecution could not

point out any direct or indirect allegation of instigation on the part of the present

applicant. She may not be very honest to keep her promise of love with the

deceased and deceased may be feeling himself very honest and sincere for his love

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with the applicant and feeling himself deceived in this bargain, he committed

suicide. The applicant cannot be held responsible for the extreme step of the

deceased. Considering the overall view of the matter, we are of the considered

view that the commission of the cognizable offence is not made out and therefore

the continuation of the criminal proceeding against the present applicant who has

taken training of Air Hostess and has great future, would be a futile exercise and a

sheer abuse of process of the Court.

26. In this view of the matter, we are inclined to allow the application and

pass the following order :

(i) The Criminal Application (APL) No.575/2021 is allowed.

(ii) The First Information Report No.44/2021 registered on

23-01-2021 against the applicant with the non applicant-Police

Station Kalmeshwar for the offence publishable under Section

306 of the IPC is quashed and set aside.

(iii) Rule is made absolute in the above terms. Pending

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

                       (Pushpa V. Ganediwala, J.)               (V.M. Deshpande, J.)



 Deshmukh