Bombay High Court
Navneet Ambadasji Agrawal vs The State Of Maharashtra Thr. Station ... on 4 February, 2025
2025:BHC-NAG:1618
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (REVN) NO. 70 OF 2024
APPLICANT : Navneet Ambadasji Agrawal,
Aged 50 years, Occu: Business,
R/o Ghatanji, Tah. Ghatanji,
District Yavatmal.
VERSUS
RESPONDENT State of Maharashtra,
through Station House Officer, City Police
Station, Shegaon, Tq. Shegaon,
District Buldana.
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Mr. A.B. Bhide, counsel for applicant.
Mrs. Swati Kolhe, APP for respondent/State.
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CORAM : URMILA JOSHI-PHALKE, J.
DATE : 04/02/2025
ORAL JUDGMENT :
1. Heard.
2. Admit. Heard finally by consent of learned counsel
appearing for the parties.
3. The revision application is filed by the applicant
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(Accused No.1) in connection with Crime No. 50/2015 registered
under Section 306 read with Section 34 of the Indian Penal Code,
1860 against rejection of the discharge application Exhibit No.6
filed under Section 227 of the Cr.P.C.
4. The factual matrix of the case for disposal of the
present revision application is as under;
Shri Kishor Tawade has lodged a report alleging that
when he was present on duty on 27/03/2015, one Sheikh Shakil
Ahmad Gulam Dastgir gave a report, he is the owner of the Swagat
Guest House and room No. 12 was obtained by the deceased
Naresh Dattarya Yemsanwar, aged about 41 years, resident of
Sayatkharda, Tah. Ghatanji, District Yavatmal. He has closed the
door of this room and thereafter, he consumed a poison and
committed suicide. The door of the room was broken and
thereafter, the inquest panchanama was drawn. During the inquiry,
with the said suicide, the investigating officer has seized five chits
from one envelope and the said envelope was addressed in the
name of Police and it was kept on one tile. During the
investigation, it further revealed that the present applicant and the
deceased entered into an agreement to purchase the agricultural
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field and the present applicant obtained money as well as golden
ornaments from him and not executed agricultural land and also
not returned the amount, as well as the golden ornaments and
therefore, he committed suicide. On the basis of the said report,
police have registered the crime against the present applicant.
5. After completion of the investigation, the present
applicant has filed an application under Section 227 of the Cr.P.C.
for discharge, which came to be rejected. The said application is
filed on the ground that there is no nexus between the act of
suicide and the abetment at the hands of the present applicant. In
fact, there is no material to show that the present applicant has
either instigated, abeted or aided the deceased to commit suicide.
However, the learned Sessions Court has not considered the same
and rejected the application.
6. Heard learned counsel for the applicant, he submitted
that absolutely there is no proximity between the two acts the
agreement of sale was executed in the year 2011, whereas the
deceased has committed suicide in the year 2015. Thus, there is
no nexus between the two acts. He has also invited my attention
towards various statements of the witnesses and submitted that
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none of the statement discloses that what type of abetment was at
the hands of the present applicant, there is no direct or
circumstantial evidence to show the nature of abetment at the
hands of present applicant. Thus, prima-facie case is not made out
against the present applicant, and therefore, he be discharged
from the discharge from the act.
7. Learned APP strongly opposed the said application
and submitted that at the time of framing of charge, strong
suspicion is also sufficient to frame the charge. Whether there was
a requisite mens rea or not is a matter of evidence. Over all
contentions shows that the applicant created certain
circumstances, which compelled the deceased to commit suicide.
At the stage of framing charge the court is required to evaluate the
material and documents on record with a view to find out with the
facts emerging therefrom taken at there face value disclose
existence. Thus, at this stage, the material collected during the
investigation is sufficient to frame charge and therefore, no
interference is called for.
8. In support of the application, learned counsel for the
applicant placed reliance on decision of this Court in Criminal
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Application No. 502/2015, wherein the FIR against the co-
accused is quashed observing that the deceased committed suicide
and there is no proximity between the two acts. There is no active
act or direct act committed by the applicant.
9. Learned counsel for the applicant submitted similar is
the case regarding the present applicant. He further placed
reliance on the decision of Shabbir Husain vs State of Madhya
Pradesh (2021) 17 SCC 807 wherein the Hon'ble Apex Court held
that 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 Indian
Penal Code, 1860. It is further held that 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 option
except to commit suicide.
10. Before entering into the merits of the case, it is
necessary to see what is the consideration for considering the
application for discharge.
11. It is a settled principle of law that at the stage of
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considering an application for discharge, the court must proceed
on the assumption that the material which has been brought on
record by the prosecution is true and evaluate the material in
order to determine whether the facts emerging from the material,
taken on its face value, disclose the existence of the ingredients
necessary of the offence alleged.
12. The Hon'ble Apex Court in the case of State Of
Gujarat Versus Dilipsinh Kishorsinh Rao [MANU/SC/1113 2023],
adverting to the earlier propositions of law in its earlier decisions
in the cases of State of Tamil Nadu vs. N.Suresh Rajan and ors,
[(2014) 11 SCC 709] and the State of Maharashtra vs. Somnath
Thapa, [(1996) 4 SCC 659] and the State of MP Vs. Mohan Lal
Soni, [(2000) 6 SCC 338], as held as under:
"10. It is settled principle of law that at the stage of
considering an application for discharge the court
must proceed on an assumption that the material
which has been brought on record by the prosecution
is true and evaluate said material in order to
determine whether the facts emerging from the
material taken on its face value, disclose the
existence of the ingredients necessary of the offence
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alleged. This Court in State of Tamil Nadu vs.
N.Suresh Rajan and ors, (2014) 11 SCC 709
adverting to the earlier propositions of law laid down
on this subject has held:
"29. We have bestowed our consideration to the rival
submissions and the submissions made by Mr. Ranjit
Kumar commend us. True it is that at the time of
consideration of the applications for discharge, the
court cannot act as a mouthpiece of the prosecution
or act as a post office and may sift evidence in order
to find out whether or not the allegations made are
groundless so as to pass an order of discharge. It is
trite that at the stage of consideration of an
application for discharge, the court has to proceed
with an assumption that the materials brought on
record by the prosecution are true and evaluate the
said materials and documents with a view to find out
whether the facts emerging therefrom taken at their
face value disclose the existence of all the ingredients
constituting the alleged offence. At this stage,
probative value of the materials has to be gone into
and the court is not expected to go deep into the
matter and hold that the materials would not warrant
a conviction. In our opinion, what needs to be
considered is whether there is a ground for
presuming that the offence has been committed and
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not whether a ground for convicting the accused has
been made out. To put it differently, if the court
thinks that the accused might have committed the
offence on the basis of the materials on record on its
probative value, it can frame the charge; though for
conviction, the court has to come to the conclusion
that the accused has committed the offence. The law
does not permit a mini trial at this stage."
13. Thus, the defence of the accused is not to be looked
into at this stage when the application is filed for discharge. The
expression "the record of the case" used in Section 227 of the Code
of Criminal Procedure is to be understood as the documents and
materials, if any, produced by the prosecution. The provisions of
the Code of Criminal Procedure does not give any right to the
accused to produce any document at the stage of framing of the
charge. The submission of the accused is to be confined to the
material produced by the investigating agency. The primary
consideration at the stage of framing of charge is the test of
existence of a prima facie case, and at this stage, the probative
value of materials on record need not be gone into. At the stage of
entertaining the application for discharge under Section 227 of the
Code of Criminal Procedure, the court cannot analyze or direct the
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evidence of the prosecution and defence or the points or possible
cross examination of the defence. The case of the prosecution is to
be accepted as it is.
14. In the case of Union of India vs. Prafulla Kumar
Samal and anr, [(1973)3 SCC 4], the Hon'ble Apex Court
considered the scope of Section 227 of the Code of Criminal
Procedure. After adverting to the various decisions, the Hon'ble
Apex Court has enumerated the following principles:
"(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
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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 Judge cannot act
merely as a Post office or a mouth-piece 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."
15. With the above principles, if the material in the
present case collected during the investigation is discussed, there is
no dispute as to the fact that the present applicant and the
deceased entered into an agreement recording the sale of the
landed property.
16. The additional statement of Dattatraya Ramchandrea
Yemsanwar, who is the father of the deceased discloses that the
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said agreement was entered in the year 2011, whereas the
deceased has committed suicide in the year 2015. As observed by
this Court by referring the decision of the Hon'ble Apex court in
the case of Ramesh Kumar vs. State of Chhattisgarh reported in
(2001) 1 SC 618, wherein in the context of ingredient of Section
306 of the Indian Penal Code, 1860 it is held that "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 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
heat of anger or emotion without intending the consequences to
actually follow cannot be said to be instigation.
17. In State Of West Bengal vs Orilal Jaiswal And Another
[1994 (1) SCC 73], this Court has cautioned that the court should
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be extremely careful in assessing the facts and circumstances of
each case and the evidence adduced in the trial for the purpose of
finding whether the cruelty meted out to the victim had in fact
induced her to end the life by committing suicide. If it transpires to
the court that a victim committing suicide was hypersensitive to
ordinary petulance discord and differences in domestic life quite
common to the society to which the victim belonged and such
petulance discord and differences were not expected to induce a
similarly circumstanced individual in a given society to commit
suicide, the conscience of the Court should not be satisfied for
basing a finding that the accused charged of abetting the offence
of suicide should be found guilty.
18. Now, a question remains, whether breaking of the
relationship with the deceased or demanding the money from the
applicant or due to the economical transactions between the
parties, whether the act of the victim committing suicide is
sufficient to show that the applicant has abeted him to commit
suicide.
19. Section 306 (Section 108 of the Bharatiya Nyaya
Sanhita, 2023) of the Indian Penal Code,1860 defines abetment of
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suicide, which reads thus:
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.
Classification of offence. - The offence under this
section is cognizable, non-bailable, non-
compoundable and triable by Court of Session.
20. Section 107 of the Indian Penal Code, 1860 (Section
45 of the Bharatiya Nyaya Sanhita, 2023) defines abetment of a
thing, which reads thus:
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.
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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.
Illustration
A, a public officer, is authorised by a warrant from a
Court of Justice to apprehend Z, B, knowing that fact
and also that C is not Z, willfully represents to A that
C is Z, and thereby intentionally causes A to
apprehend C. Here B abets by instigation the
apprehension of C.
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.
21. Section 108 of the Indian Penal reads thus:
108. Abettor.--
A person abets an offence, who abets either the
commission of an offence, or the commission of an act
which would be an offence, if committed by a person
capable by law of committing an offence with the
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same intention or knowledge as that of the abettor.
Explanation 1.-- The abetment of the illegal omission
of an act may amount to an offence although the
abettor may not himself be bound to do that act.
Explanation 2.-- To constitute the offence of
abetment it is not necessary that the act abetted
should be committed, or that the effect requisite to
constitute the offence should be caused.
Illustrations
(a) A instigates B to murder C. B refuses to do so.
A is guilty of abetting B to commit murder.
(b) A instigates B to murder D. B in pursuance of the
instigation stabs D. D recovers from the wound. A is
guilty of instigating B to commit murder.
Explanation 3.-- It is not necessary that the person
abetted should be capable by law of committing an
offence, or that he should have the same guilty
intention or knowledge as that of the abettor, or any
guilty intention or knowledge.
Illustrations
(a) A, with a guilty intention, abets a child or a lunatic
to commit an act which would be an offence, if
committed by a person capable by law of committing
an offence, and having the same intention as A. Here
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A, whether the act be committed or not, is guilty of
abetting an offence.
(b) A, with the intention of murdering Z, instigates B,
a child under seven years of age, to do an act which
causes Z's death. B, in consequence of the abetment,
does the act in the absence of A and thereby causes
Z's death. Here, though B was not capable by law of
committing an offence, A is liable to be punished in
the same manner as if B had been capable by law of
committing an offence, and had committed murder,
and he is therefore subject to the punishment of
death.
(c) A instigates B to set fire to a dwelling-house, B, in
consequence of the unsoundness of his mind, being
incapable of knowing the nature of the act, or that he
is doing what is wrong or contrary to law, sets fire to
the house in consequence of A's instigation. B has
committed no offence, but A is guilty of abetting the
offence of setting fire to a dwelling-house, and is
liable to the punishment, provided for that offence.
(d) A, intending to cause a theft to be committed,
instigates B to take property belonging to Z out of Z's
possession. A induces B to believe that the property
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belongs to A. B takes the property out of Z's
possession, in good faith, believing it to be A's
property. B, acting under this misconception, does not
take dishonestly, and therefore does not commit theft.
But A is guilty of abetting theft, and is liable to the
same punishment as if B had committed theft.
Explanation 4.-- The abetment of an offence being an
offence, the abetment of such an abetment is also as
offence.
Illustration
A instigates B to instigate C to murder Z.
accordingly instigates C to murder Z, and C commits
that offence in consequence of B's instigation. B is
liable to be punished for his offence with the
punishment for murder; and, as A instigated B to
commit the offence, A is also liable to the same
punishment.
Explanation 5.-- It is not necessary to the commission
of the offence of abetment by conspiracy that the
abettor should concert the offence with the person
who commits it. It is sufficient if he engages in the
conspiracy in pursuance of which the offence is
committed.
Illustration
A concerts with B a plan for poisoning Z. It is agreed
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that A shall administer the poison. B then explains the
plan to C mentioning that a third person is to
administer the poison, but without mentioning A's
name. C agrees to procure the poison, and procures
and delivers it to B for the purpose of its being used in
the manner explained. A administers the poison; Z
dies in consequence. Here, though A and C have not
conspired together, yet C has been engaged in the
conspiracy in pursuance of which Z has been
murdered. C has therefore committed the offence
defined in this section and is liable to the punishment
for murder.
22. Section 306 of the Indian Penal Code, 1860 talks
about abetment of suicide and states that whoever abets the
commission of suicide of another person, he/she shall be punished
with imprisonment of either description for a term not exceeding
ten years and shall also be liable to fine.
The said Sections penalizes abetment of commission
of suicide. To charge someone under this Section, the prosecution
must prove that the accused played a role in the suicide.
Specifically, the accused's actions must align with one of the three
criteria detailed in Section 107 of the Indian Penal Code, 1860.
This means the accused either encouraged the individual to take
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their life, conspired with others to ensure the person committed
suicide.
23. A question arises as to when is a person said to have
instigated another. The word "instigate" means to goad or urge
forward provoke, incite or encourage to do "an act" which the
person otherwise would not have done.
24. It is well settled that in order to amount to abetment,
there must be mens rea. Without knowledge or intention, there
cannot be any abetment. The knowledge and intention must relate
to the act said to be abetted which in this case, is the act of
committing suicide. Therefore, in order to constitute abetment,
there must be direct incitement to do culpable act.
25. The Hon'ble Apex Court has considered its earlier
decision in the case of Kamlakar vs. State of Karnataka (Criminal
Appeal No.1485/of 2011, decided on 12.10.2023 and explained
ingredients of Section 306 of the Indian Penal Code, 1860 and
held, as under:
"8.2. Section 306 IPC penalizes abetment of
commission of suicide. To charge someone under this
Section, the prosecution must prove that the accused
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played a role in the suicide. Specifically, the accused's
actions must align with one of the three criteria
detailed in Section 107 IPC. This means the accused
either encouraged the individual to take their life,
conspired with others to ensure the person
committed suicide, or acted in a way (or failed to act)
which directly resulted in the person's suicide.
26. The essentials of Section 306 Indian Penal Code, 1860
were elucidated by this Court in M.Mohan vs. State, AIR 2011 SC
1238, as under:
"43. This Court in Chitresh Kumar Chopra v. State
(Govt. of NCT of Delhi) [(2009) 16 SCC 605 : (2010)
3 SCC (Cri) 367] had an occasion to deal with this
aspect of abetment. The Court dealt with the
dictionary meaning of the word "instigation" and
"goading". The Court opined that there should be
intention to provoke, incite or encourage the doing of
an act by the latter. Each person's suicidability pattern
is different from the others. Each person has his own
idea of selfesteem and selfrespect. Therefore, it is
impossible to lay down any straitjacket formula in
dealing with such cases. Each case has to be decided
on the basis of its own facts and circumstances.
44. Abetment involves a mental process of instigating
a person or intentionally aiding a person in doing of a
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thing. Without a positive act on the part of the
accused to instigate or aid in committing suicide,
conviction cannot be sustained.
27. Thus, the Hon'ble Apex Court has consistently taken
the view that before holding an accused guilty of an offence under
Section 306 Indian Penal Code, 1860, the court must scrupulously
examine the facts and circumstances of the case and also assess
the evidence adduced before it in order to find out whether the
cruelty and harassment meted out to the victim had left the victim
with no other alternative but to put an end to her life. It is also to
be borne in mind that in cases of alleged abetment of suicide there
must be proof of direct or indirect acts of incitement to the
commission of suicide. Merely on the allegation of harassment
without there being any positive action proximate to the time of
occurrence on the part of the accused which led or compelled the
person to commit suicide, conviction in terms of Section 306
Indian Penal Code, 1860 is not sustainable.
28. In order to bring a case within the purview of Section
306 Indian Penal Code, 1860 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
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role by an act of instigation or by doing certain act to facilitate the
commission of suicide.
29. On the basis of the above principles, if the facts of the
present case, and the material during the investigation is taken
into consideration, it reveals from the first information report and
material produced on record that there is no material are even the
allegation to show that the applicant has either instigated or
intentionally aided the victim to commit suicide. There is no active
act or direct act committed by the applicant which led victim to
commit suicide nor there is any allegation or proof that the
applicant intentionally pushed victim in such position that he
committed suicide and there was no other alternative but to
commit suicide, and therefore the victim has committed suicide.
The investigating agency in there reply has stated that
there is abetment at the hands of the present applicant and
therefore, deceased has committed suicide, but this allegation is
not substantiated by any other material to fulfill the ingredients of
the offence under Section 306 of Indian Penal Code, 1860.
30. On overall perusal of the FIR and the investigation
papers, which are not sufficient even to frame a charge against the
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present applicant. After having sifted weighing the evidence on
record, and gone through the investigation papers and considering
the material on record, it is difficult to hold that inference of grave
suspicion can be raised against the applicant on the basis of the
evidence on record. The material appears to be insufficient for
subjecting the applicant to trial. On the basis of the evidence on
record, it cannot be stated that the material is sufficient for the
prosecution to establish the charge against the present applicant.
Subjecting the applicant to trial on the basis of the above said
evidence would not only be a mere formality but also abuse of
process of law.
31. In this view of the matter, the criminal revision
application deserves to be allowed. Hence, I proceed to pass
following order:
ORDER
a. The Criminal Revision Application is allowed.
b. The order passed by Assistant Sessions Judge,
Khamgaon District Buldana, dated 27/12/2023
in Sessions Trial No. 72/2021 below Exhibit
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No.6, rejecting the discharge application is
hereby quashed and set aside.
c. The applicant is hereby discharge of offence
punishable under Section 306 read with 34 of
Indian Penal Code, 1860 in connection Crime
No. 50/2015 and charge-sheet No. 92/2021
registered by Shegaon Police Station District
Buldhana.
32. The Criminal Revision Application stands disposed of.
[URMILA JOSHI-PHALKE, J.]
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Signed by: Mr. R.K. NANDURKAR
Designation: PA To Honourable Judge
Date: 18/02/2025 16:32:44
