Sushil S/O Jaydeo Dandale vs State Of Mah. Thr. Pso Old City ...
2022 Latest Caselaw 13442 Bom

                                        1                               26-apl-856-1025-21j.odt



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

             CRIMINAL APPLICATION (APL) NO. 856 OF 2021
                                WITH
             CRIMINAL APPLICATION (APL) NO. 1025 OF 2021


CRIMINAL APPLICATION (APL) NO. 856 OF 2021

Yogesh Rupchandji Agrawal,
Aged about 39 years, Occ. Business,
R/o. L/79, VHB Colony, Gorakshan Road,
Akola, Tq. and Dist. Akola.                                                . . . APPLICANT

                   // V E R S U S //

1. State of Maharashtra through
   P. S.O., P. S. Old City, Akola,
   Tq. and Dist. Akola.

2. Harshal Omprakash Sharma,
   Aged about 29 years, Occ. Service,
   R/o. Hariharpeth, Old City, Akola
   Tq. and Dist. Akola                                           . . . NON-APPLICANTS

------------------------------------------------------------------------------------------------
Shri J. B. Gandhi, Advocate for applicant.
Shri S. S. Doifode, APP for non-applicant no. 1/State.
-------------------------------------------------------------------------------------------------

                                             WITH

CRIMINAL APPLICATION (APL) NO. 1025 OF 2021

Sushil S/o. Jaydeo Dandale,
Aged about 32 years, Occ. Labour,
R/o. Gajanan Nagar, Dabki Road,
Akola, Tq. and Dist. Akola.                                                . . . APPLICANT

                   // V E R S U S //
                                         2                               26-apl-856-1025-21j.odt



1. State of Maharashtra through
   P.S.O., Old City, Akola

2. Harshal Omprakash Sharma,
   Aged about 28 years, Occ. Business,
   R/o. Hariharpeth, Old City,
   Akola, Tq. and Dist. Akola.                                   . . . NON-APPLICANTS

------------------------------------------------------------------------------------------------
Shri H. M. Mohta, Advocate for applicant.
Shri S. S. Doifode, APP for non-applicant no. 1/State.
-------------------------------------------------------------------------------------------------

                 CORAM :-          SUNIL B. SHUKRE &
                                   M. W. CHANDWANI, JJ.

RESERVED ON :- 05.12.2022 PRONOUNCED ON :- 22.12.2022

JUDGMENT (PER: M. W. CHANDWANI, J.):-

Heard.

2. Rule. Rule made returnable forthwith. Heard finally with

the consent of learned counsel for the parties.

3. This common judgment will dispose of two Criminal

Applications. The applicant in each of the Criminal Application, seeks

to quash the criminal proceedings pending against them arising out of

First Information Report (FIR) No. 803/2021 registered by Old City

Police Station, Akola for the offences punishable under Sections 306

read with Section 34 of the Indian Penal Code (IPC).

3 26-apl-856-1025-21j.odt

4. The facts, which give rise to the present Criminal

Applications can be stated as under:-

One Harshal Omprakash Sharma lodged a complaint with

Police Station Old City, Akola that his nephew Alpesh Arvind Upadhyay

committed suicide by hanging from ceiling fan in his house. The

suicide-note was found near his bed, wherein the deceased has

mentioned the reason for taking extreme step as Corona pandemic as

well as mental harassment given by the applicants and one Vishal

Purohit. On the said complaint, the FIR for the aforesaid offences

came to be registered against the present applicants and one Vishal

Purohit. During the course of the investigation, the Police recorded the

statement of witnesses and also seized the suicide-note. During the

pendency of the present applications, charge-sheet came to be filed.

5. The notices were issued to the non-applicants. Learned

APP appears for non-applicant no. 1/State and file its reply opposing

the application. Non-applicant no. 2, though was served with notice,

but chose not to appear in the matter.

6. Learned counsel for the applicant- Sushil Dandale

vehemently submitted that in noway the applicant is concerned with

suicide committed by the deceased. According to him, due to Corona

pandemic situation, the financial condition of the deceased was not 4 26-apl-856-1025-21j.odt

good and under the pressure of loss in business, he has taken drastic

step of committing suicide. There is no abetment on the part of

applicant- Sushil Dandale and the applicant cannot be made

responsible for the same. Learned counsel appearing for Yogesh

Agrawal vehemently submitted that since the deceased was looking for

business partner, the deceased offered him to join as a business partner

and accordingly, they started business of catering service by name

"Shagun Catering". The joint venture and undertaken various catering

projects and thereafter, the account was also reconciled between the

deceased and the applicant on 09.07.2021. According to him, the

alleged dispute between the applicant and the deceased were one

month prior to the alleged incident and that there is no proximate link

between the dispute and death of the deceased and therefore, the

applicant cannot be connected with suicide of the deceased. It is

vehemently submitted that there is no abetment on the part of the

applicants to the deceased to commit suicide. Therefore, it is

submitted that the criminal proceedings against the applicants be

quashed.

7. Shri Doifode, learned APP appearing on behalf of State

submitted that both the applicants were demanding the amount from

the deceased ever now and then. The applicants harassed the

deceased continuously thereby abeted the deceased to commit suicide.

5 26-apl-856-1025-21j.odt

According to him, there is sufficient material in the form of suicide-

note against the applicant. He sought rejection of the applications.

8. In order to appreciate the contentions raised by learned

counsel for the respective applicants, as well as learned APP for non-

applicant no. 1/State, it would be necessary to refer to Sections 107

and 306 of the IPC, which read 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.

Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

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 facilitates the commission thereof, is said to aid the doing of that act.

306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

9. The consideration and analysis of the above quoted

provisions has attracted attention of the High Courts and the Supreme

Court, the Courts have in various cases, elucidated the essential

ingredients for attracting the offence of abetment of suicide. Before 6 26-apl-856-1025-21j.odt

proceeding to deal with the facts of the present cases, it would be

apposite to mention here the principles, which can be culled out from

judgments of the Apex Court and this Court.

10. In the case of Swamy Prahalddas Vs. State of M.P. and

another, [1995 Supp (3) SCC 438], the Supreme Court was

considering a situation where the accused was alleged to have

remarked to the deceased 'to go and die' and thereafter, the deceased

committed suicide. Even in such a situation the Supreme Court held

that the allegations, even if they were to be accepted as it is, did not

prima facie reflect mens rea on the part of the accused and it was also

found that the deceased did have time to weigh the pros and cons of

the act by which he ultimately ended his life. It was held that the

accused need not face the charge in such a situation.

11. In the case of Sanju Alias Sanjay Singh Sengar Vs. State of

M.P., [(2002) 5 SCC 371], the Supreme Court was considering a

situation where the deceased had left behind a suicide note, wherein it

was specifically stated that the accused was responsible for his death.

In the said case, the Supreme Court considered the liability of the

accused to face investigation and prosecution under Section 306 of the

IPC, in the context of Section 107 thereof and it was held that the word

"instigate" denotes incitement or urging to do some drastic or 7 26-apl-856-1025-21j.odt

inadvisable action or to stimulate or incite, further holding that

presence of mens rea, therefore, was a necessary concomitant of

instigation. It was found that in the said case the alleged abusive words

were used by the accused against the deceased, two days prior to the

date when the deceased was found hanging. In these circumstances,

the Supreme Court found it fit to quash the criminal proceedings.

12. In the case of Madan Mohan Singh Vs. State of Gujarat

and another, [(2010) 8 SCC 628] , the accused was alleged to have

instigated his driver to commit suicide. There was a suicide note of 15

pages left behind by the deceased and the accused had approached the

High Court for quashing of the FIR and the criminal proceedings, but

his prayer was rejected, as consequence of which, the accused was

before the Supreme Court seeking relief. The Supreme Court applied

Section 306 read with 107 of the IPC and found that there has to be

proximity between the alleged acts of the accused and the extreme

step taken by the deceased of committing suicide. It was held that the

allegations made and the material ought to be of a definite nature and

not imaginary or inferential. The Supreme Court went into the suicide

note of about 15 pages and found that the contents thereof expressed

the anguish of the deceased, who felt that his boss (the accused) had

wronged him, but it was noted that the contents fell short of depicting

an intentional act on the part of the accused for driving the deceased 8 26-apl-856-1025-21j.odt

to commit suicide. On this basis, the judgment of the High Court was

set aside and the FIR and criminal proceedings were quashed.

13. In the case of S.S. Chheena Vs. Vijay Kumar Mahajan and

another, [(2010) 12 SCC 190], the Supreme Court considered the facts

of the said case and after referring to Sections 107 and 306 of the IPC,

found that the High Court had erred in not quashing the criminal

proceedings. Reference was made to a series of judgments on the

aspect of abetment, particularly in the context of instigation. It was

observed in the said judgment as follows : -

"25. Abetment involves a 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 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led 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 committed suicide.

26. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation."

14. Similarly, in the case of M.Mohan Vs. State Represented

by the Deputy Superintendent of Police [(2011) 3 SCC 626] , the

Supreme Court held in the context of abetment as follows: -

9 26-apl-856-1025-21j.odt

"44. Abetment involves a 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.

45. The intention of the legislature and the ratio of the cases decided by this court are clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide."

15. In the present case, the material available on record shows

that the deceased initially was having partnership with co-accused

Vishal Purohit in the catering business and the applicant- Sushil

Dandale was Manager in the said partnership and was acting on behalf

of Vishal Purohit. There are allegations that the applicants, on behalf

of the co-accused- Vishal Purohit, used to demand outstanding dues

from the deceased and also used to threaten that he will kill the

deceased by shooting him. It is a matter of record, as seen from the

case of the prosecution, that the said partnership came to an end two

months prior to the incident of suicide and thereafter a new

partnership enterprise was started by the deceased with applicant-

Yogesh Agrawal. It appears from the charge-sheet that in the said joint

venture also, there were disputes on the financial aspect and the

deceased had to pay some amount to Yogesh Agrawal. It is alleged

that a month prior to the alleged incident, the deceased was beaten by

Yogesh Agrawal. Now, the prosecution has come up with the case that

just because of harassment given by these applicants and co-accused-

10 26-apl-856-1025-21j.odt

Vishal Purohit, the deceased committed suicide by hanging from

ceiling fan at his house.

16. Record shows that the alleged harassment was given to

the deceased by the applicant- Shushil Dandale along with co-accused

and by the applicant- Yogesh Agrawal about two months and one

month, respectively, prior to the incident of suicide. Thus, there is

considerable gap between the alleged harassment and extreme step

taken by the deceased. As held by Hon'ble Supreme Court in the case

of M. Mohan (supra), there has to be a proximate link between the

incriminating circumstances or acts and abetment of suicide by the

deceased. We find that there is no proximate line between the alleged

incident of harassment at the behest of the petitioner and the extreme

step taken by the deceased.

17. This also takes us to the suicide-note left by the deceased.

We have analysed the contents of the suicide-note left by the deceased.

It also refers to Corona pandemic as one of the reason for taking the

extreme step. Thus, it appears that the deceased was financially

unstable due to Corona pandemic situation. After taking into

consideration the surrounding circumstances and the fact of pandemic

situation, which affected everybody in one way or another, we are of

the view that the deceased committed suicide out of furstation, 11 26-apl-856-1025-21j.odt

emerged due to the situation and circumstances created by the

pandemic. We do not find prima facie material that the demands,

which have been allegedly made by the applicants, with intention of

driving the deceased to commit suicide. There is no material to show

that the demands were unworthy or unreasonable. Stretching the

things a bit far to reach a finding that accused intentionally acted in

such a manner to drive the deceased to commit suicide, will not be

justified. Thus even if the facts are taken at their face value, they do

not prima facie constitute any offence.

18. In case of State of Harayana Vs. Bhajan Lal [1992 Supp

(1) SCC 335], the Hon'ble Supreme Court has illustrated the category

of cases, wherein the extra-ordinary power under Article 226 or the

inherent powers under Section 482 of the CrPC can be exercised by the

High Court either to prevent abuse of the process of any court or

otherwise to secure the ends of justice, which are reproduced as

under:-

"(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 152(2) of the Code; (3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do 12 26-apl-856-1025-21j.odt

not disclose the commission of any offence and make out a case against the accused;

(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

19. We are convinced that continuance of these proceedings

would amount to the abuse of process of law and this case is, in our

view, squarely covered by guideline no. 1 in the case of Bhajan Lal

(supra). Therefore, we found that the case in hand is a fit case where

the extra-ordinary power under Section 482 of Cr.P.C. is to be invoked.

20. In view thereof, both the applications are allowed. The

criminal proceedings filed pursuant to FIR No. 803/2021 registered

with Police Station Old City, Akola for the offences punishable under

Section 306 read with 34 of the IPC is quashed and set aside.

                                                13                      26-apl-856-1025-21j.odt




                      21.       Rule is made absolute in the above terms.




                      (M. W. CHANDWANI, J.)                       (SUNIL B. SHUKRE, J.)




  RR Jaiswal


          Digitally signed
          by JAISWAL
JAISWAL RAJNESH
        RAMESH
RAJNESH Date:
RAMESH 2022.12.22
          19:42:28
          +0530