Bombay High Court
Bhagyashali D/O Ratnakar Khillare And ... vs The State Of Maharashtra on 2 September, 2024
2024:BHC-AUG:20077
-1- Cri.WP.1086.2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1086 OF 2023
1. Bhagyashali D/o. Ratnakar Khillare,
Age : 27 years, Occu. : Pvt. Service,
2. Nilabai W/o. Ratnakar Khillare,
Age : 55 years, Occu. : Household,
3. Ratnakar S/o. Rambhau Khillare,
Age : 60 years, Occu. : Nil,
All R/o. Junuwadi, Taluka Jintur,
Dist. Parbhani ... Petitioners
(Orig. Acc. Nos.1, 2 and 3)
Versus
1. The State of Maharashtra,
Through P.S.O., Police Station,
Jintur, Dist. Parbhani ... Respondent
(Orig. Complainant)
...
Mr. Ajinkya Reddy, Advocate for Petitioners.
Mr. S. A. Gaikwad, APP for Respondent - State.
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 26th AUGUST, 2024
PRONOUNCED ON : 2nd SEPTEMBER, 2024
ORDER :
1. In this criminal writ petition, there is challenge to the
judgment and order passed by learned Sessions Judge, Parbhani
dated 31.03.2023 passed in Criminal Revision Petition No.46 of
2022, thereby dismissing the revision arising out of order passed
below Exh.17 by Assistant Sessions Judge, Parbhani in Sessions
Trial No. 42 of 2018 dated 05.02.2022.
-2- Cri.WP.1086.2023
2. In nutshell case put-forth is that, present petitioners by
invoking powers under section 156(3) of the Code of Criminal
Procedure (Cr.P.C.) moved learned Judicial Magistrate First Class,
Jintur seeking directions to register FIR against accused (i.e.
present petitioners) for commission of offence of abetment to
commit suicide. Learned J.M.F.C. entertained the said complaint
and directed registration of crime vide its order dated 03.11.2016
for offence punishable under sections 306, 323, 504 and 506 r/w
section 34 of Indian Penal Code (IPC) and in consequence to the
same, after investigation charge-sheet was filed and case was
registered as R.C.C. No.217 of 2017 and it was dealt by Assistant
Sessions Judge, Parbhani vide Sessions Trial No. 42 of 2018.
3. Present petitioners filed discharge application by
invoking provisions under section 227 of Cr.P.C. on the ground that
there was no material in the entire charge-sheet in support of the
accusations. Learned Assistant Sessions Judge, Parbhani rejected
application Exh.17 by order dated 05.02.2022.
4. Feeling aggrieved by the same, present petitioners
moved the learned Sessions Judge, Parbhani by filing Criminal
Revision Application No.46 of 2022, thereby taking exception to
the order passed by learned Assistant Sessions Judge, Parbhani.
-3- Cri.WP.1086.2023
5. After hearing both sides, learned Sessions Judge by
judgment and order dated 31.03.2023 dismissed the criminal
revision, giving rising to instant criminal writ petition by invoking
Articles 226 and 227 of the Constitution of India.
6. Pleading innocence and false implication, learned
counsel for petitioners would point out that, it is clear abuse of
process of law i.e. merely on account of losing son by the de facto
complainant. Apprising this court about the background, it is
submitted that, there are allegations that, present petitioner no.1
was in love with deceased son of complainant. It is pointed out
that, in fact deceased himself was married. There is no foundation
to the allegations. Moreover, solitary incident of beating would not
amount to inducement and abetment to commit suicide. Learned
counsel pointed out that, alleged incident is of 28.07.2016.
Deceased Nitin consumed poison on 29.07.2016 at his own house
i.e. next day. It is emphasized that, since the morning of
28.07.2016 till 29.07.2016 petitioners were not in contact with
deceased, no role is attributed to them during these two days to
connect them with alleged consumption by deceased. Learned
counsel pointed out that, there is nothing to connect present
petitioners in proximity to alleged consumption and therefore
-4- Cri.WP.1086.2023
offence of suicide, by no means get attracted. According to learned
counsel, mere incident of beating or humiliation would not
constitute abetment to commit suicide. That, there was no mens
rea and resultantly it is his submission that, when essential
ingredients for attracting section 306 of IPC like inducement,
abetment, instigation or positive act on their part being not
available, making applicants face ordeal of trial would amount of
hardship and injustice and consequently it his submission that, it is
a fit case to discharge the applicants by invoking section 227 of
Cr.P.C.
In support of his submissions, learned counsel for
petitioners has relied on Priyanka Premraj Mhasaye and Ors. v.
State of Maharashtra, AIROnline 2021 Bom 3999 and State of
West Bengal v. Indrajit Kundu and Ors., AIROnline 2019 SC 1201.
7. On the other hand, learned APP pointed out that, there
is ample evidence against applicants which has emerged upon
complete investigation. He pointed out that, there are witnesses
who have seen incident at hand pump wherein present petitioners
beat deceased in public, thereby insulting and humiliating him.
They were regularly threatening him to divorce his legally wedded
wife and elope with petitioner no.1. Their such threats were heard
and seen by independent witnesses, whose statements under
-5- Cri.WP.1086.2023
section 164 of Cr.P.C. are recorded. According to learned APP, only
because of continuous harassment, deceased consumed poison,
there was no other reason. That apart, there are allegations of
beating, commission of offence under sections 504 and 506 of IPC.
There being ample evidence, it is his submission that it is not at all
a case of discharge by invoking section 227 of Cr.P.C..
8. Here, it is emerging that, deceased Nitin died on
05.08.2016. When informant's attempt to take his complaint by
police and to lodge report went futile, he seems to have knocked
the door of learned J.M.F.C. by invoking section 156(3) of Cr.P.C.
and in consequence to directions by learned J.M.F.C. Jintur dated
03.11.2016, crime seems to have been registered and further
investigated and it culminated into charge-sheet bearing No.44 of
2017 for commission of offence under sections 306, 323, 504 and
506 r/w section 34 of IPC at the hands of Jintur Police Station.
9. After filing of charge-sheet, present petitioners who
were arraigned as accused therein initially approached learned
Assistant Sessions Judge by exercising powers under section 227
of Cr.P.C. praying to discharge, but when their such request was
turned down, they approached learned Sessions Judge, however,
they even did not find favour in their Criminal Revision Petition
No.46 of 2022 and hence instant writ petition.
-6- Cri.WP.1086.2023
10. Powers under section 227 of Cr.P.C. being invoked, it
would be profitable to reproduce the provision itself for the sake of
gravity and clarity :
"227. Discharge.
If, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the
submissions of the accused and the prosecution in this behalf,
the Judge considers that there is not sufficient ground for
proceeding against the accused, he shall discharge the accused
and record his reasons for so doing."
In umpteen judgments time and again the Hon'ble Apex
Court has dealt and discussed the scope and powers under section
227 of Cr.P.C. and has culled out a proposition that, court while
considering the question of framing charge, has undoubted power
to sift and weigh the evidence for a limited purpose of finding out
whether or not prima facie case against the accused has at all been
made out, and when the court is convinced and satisfied from the
available evidence and material produced before it that, there is
grave suspicion regarding involvement of accused, he deserves to
be discharged. That, court cannot merely act as a mouthpiece of
the prosecution and proceed with the trial. It is also settled
position that, however, no roving inquiry is expected to be carried
out which would amount to conducting trial itself.
-7- Cri.WP.1086.2023
In the case of P. Vijayan v. State of Kerala and Anr.,
(2010) 2 SCC 398, in paragraph no.13, the Hon'ble Apex Court
took note of the principles enunciated earlier in Union of India v.
Prafulla Kumar Samal, (1979) 3 SCC 4, which read thus :-
10.....
(1) That the Judge while considering the question of
framing the charges under Section 227 of the Code has the
undoubted power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case
against the accused has been made out.
(2) Where the materials placed before the Court disclose
grave suspicion against the accused which has not been
properly explained the Court will be fully justified in framing a
charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay
down a rule of universal application. By and large however if
two views are equally possible and the Judge is satisfied that
the evidence produced before him while giving rise to some
suspicion but not grave suspicion against the accused, he will
be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of
the Code the Judge which under the present Code is a senior
and experienced court cannot act merely as a post office or a
mouthpiece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence and the
documents produced before the Court, any basic infirmities
appearing in the case and so on. This however does not mean
that the Judge should make a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was
conducting a trial."
11. The above legal proposition has also been reiterated in
following rulings :-
-8- Cri.WP.1086.2023
1) Yogesh alias Sachin Jagadish Joshi v. State of
Maharashtra, AIR 2008 SC 2991;
2) State of Tamil Nadu v. N Suresh Rajan & Ors., (2014) 11
SCC 709;
3) BK Sharma v. State of UP, 1987 SCC OnLine ALL 314
12. Keeping above parameters and requirements in mind,
here, in case in hand prosecution has been launched for
commission of offence under sections 306, 323, 504 and 506 r/w
section 34 of IPC. The gist of prosecution version is that, present
petitioner no.1 a married lady had love affair with deceased son of
complaint, who was also married, and according to prosecution, all
accused were insisting deceased to divorce his legally wedded wife
and elope with petitioner no.1.
13. On sifting the evidence, it emerges that, there was an
episode involving present petitioners and deceased on a public
hand pump. There are allegations that, at that point, in above
backdrop and demand, there was initially offer to deceased to take
money and run away with petitioner no.1. In same episode, there
are allegations of beating and threats. This episode was eye
witnessed by persons, namely Santosh, Mukida, Prayagbai and
Shantabai and their statements appear to be recorded both, under
section 161 as well as section 164 of Cr.P.C.. Coupled with it, there
-9- Cri.WP.1086.2023
is said to be audio recording of deceased himself i.e. in his own
mobile and the same was with informant father and sim cards are
handed over to police.
Consequently, here, there are prima facie allegations of
forcing deceased to divorce his legally wedded wife and
marry/remarry petitioner no.1 with whom there was alleged affair.
A day after the episode at water hand pump, there is consumption,
due to which unfortunately son of informant succumbed to death.
As stated above, witnesses are on the point of pressurizing
deceased to do as above, and therefore, he was said to be under
mental stress. Hence, it cannot be said that there is no material at
all in support of accusations. There are not only allegations of
abetment to commit suicide, but also allegation of other offence of
beating as well as issuing life threats. Therefore, in the considered
opinion of this court, it cannot be said at this juncture that there is
no material to face trial at all.
14. I have considered both the citations taken recourse to
by the learned counsel for petitioners. In the case of Priyanka
Premraj Mhasaye and Ors. (supra), proceeding were under
consideration for relief under section 482 Cr.P.C. and as such, does
not come to the aid of petitioners. As regards to second ruling is
concerned, facts were distinct. Victim therein had developed
-10- Cri.WP.1086.2023
intimacy and relationship with appellant therein. Parents of the
appellant addressed the girl as a call girl on 05.03.2004 and so she
committed suicide on 06.03.2004 and so the Hon'ble Apex Court
held that, there cannot be abetment as there was no goading,
solicitation or insinuation to commit suicide.
15. Here, witnesses prima facie stated about continued
course of conduct compelling deceased to give divorce to his wife
and take away petitioner no.1 and in such backdrop, there was said
to be abuse and beating in presence of witnesses. As stated above,
there is also alleged audio recording of deceased handed over to
police. Therefore, sufficiency of material in the case in hand
distinguishes it from the relied cases. No case is made out to
invoke section 227 of Cr.P.C. to discharge petitioners from all the
charges. Hence, the criminal writ petition stands dismissed.
(ABHAY S. WAGHWASE, J.)
Tandale
