Bombay High Court
Arvind S/O Deshavrao Girhe, R/O ... vs The State Of Mah Thr P.So. Hiwarkhed ... on 20 February, 2023
Author: M. W. Chandwani
Bench: Sunil B. Shukre, M. W. Chandwani
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO. 371 OF 2019
Arvind S/o. Keshavrao Girhe,
Aged about 50 years, Occ. Service,
R/o. Hiwarkhed Road, Telhara,
Tah. Telhara, Dist. Akola. . . . APPLICANT
// V E R S U S //
1. The State of Maharashtra through
Police Station Officer,
Hiwarkhed Police Station,
Tah. Telhara, Dist. Akola.
2. Ravindra Narayan Ingle,
Aged about 48 years, Occ. Agriculturist,
R/o. Gandhi Chowk, Belhed,
Tah. Telhara, Dist. Akola. . . . NON-APPLICANTS
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Shri N. B. Kalwaghe, Advocate for applicant.
Shri S. S. Doifode, APP for non-applicant no. 1/State.
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CORAM :- SUNIL B. SHUKRE AND
M. W. CHANDWANI, JJ.
RESERVED ON :- 24.11.2022
PRONOUNCED ON :- 20.02.2023
JUDGMENT (PER: M. W. CHANDWANI, J.):-
Heard.
2. Rule. Rule made returnable forthwith. Heard finally by consent of the parties.
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3. By this application, the applicant invokes the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (Cr.P.C.) for quashing the First Information Report (FIR) No. 32/2019 registered at Police Station, Hiwarkhed, Tah. Telhara, Dist. Akola for the offences punishable under Sections 306, 385, 420 and 504 of the Indian Penal Code (IPC) and charge-sheet no. 65/2022.
4. The facts, which lead to filing of the present application are stated thus:
One Ravindra Narayan Ingle (brother of the deceased) lodged a complaint with Police Station Hiwarkhed, Tah. Telhara, Dist.
Akola that his brother- Gajanan Ingle committed suicide by consuming poison/chemical due to embarrassment meted out to him by school Principal- Arvind Girhe. The deceased was a Teacher in Late Rajiv Gandhi School, Talegaon Bazar. It is alleged that on 09.02.2019, there was quarrel of the deceased with the school Principal- Arvind Girhe.
Due to said quarrel, Principal- Arvind Girhe has insulted the deceased by hurling derogatory remarks and also beaten him. The deceased did not attend the school on 10.11.2019. On 11.02.2019, at about 01.00 p.m., the deceased has telephoned his wife- Sheela Ingle from the school that due to constant harassment by Principal- Arvind Girhe, he is committing suicide and died due consuming poison/chemical. On the said complaint, the FIR for the aforesaid offenses came to be 3 14-apl-371-19j (copy) (corrected).odt registered against the present applicant. 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 application, 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, not filed his reply.
6 It is submitted by the counsel appearing on behalf of the applicant that the applicant has not abetted the deceased to commit suicide. The class room was not clean, therefore, the applicant being administrator as headmaster gave understanding to the deceased. The deceased was suffering from some mental deceased. Just because the applicant insulted the deceased in front of the student, it can not be termed as abatement to suicide note. He further submitted that the accused used to remain absent. He had taken various loans. He was in distress, therefore he committed suicide. According to learned advocate for the applicant, no case is made out against the applicant. Therefore the proceeding against the applicant be quashed.
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7. Learned App on other hand submitted that the deceased was harassed by the applicant. Even he insulted the deceased in the class-room in front of the student. There are suicide notes written by the deceased which clearly spell the harassment and extortion done by the applicant. He submitted that due to continuous harassment, the deceased committed suicide. Accordingly to him no case is made out for quashing of the proceeding.
8. In order to appreciate the contentions raised by learned counsel for the applicant, 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.
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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 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.
6 14-apl-371-19j (copy) (corrected).odt 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 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 7 14-apl-371-19j (copy) (corrected).odt 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 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."
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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: -
"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. Thus, in view of the above, It is crystallized from reading of the provisions of Section 107 of the IPC that intention of the accused to aid, instigate or abet to commit suicide is a requirement for the offence punishable under Section 306 of the IPC.
16. We have perused the case dairy, the incident of asking the deceased to clean the class room in front of the student is impropriety and indecent one, but in our opinion in no way it can be seen as abatement of the suicide by the the applicant. The applicant being headmaster has to look entire administration of the school. The statement of the wife of deceased shows that after the incident of insult, when the deceased did not attend the school, the wife of applicant went to the house of the deceased to console him and 9 14-apl-371-19j (copy) (corrected).odt thereafter he joint the duty. In our opinion the alleged act of the applicant to clean the class room does not amount to to aid, instigate or abet add to the deceased to commit suicide.
17. This takes us to the suicide notes written by the deceased. The deceased has written almost five suicide notes. The crux of those suicide notes is that the applicant used to harass and used to pressurized to pay Rs. 10000/- per month from his salary for arranging his substitute who would teach the student in place of the deceased, as in case of other teacher Yogesh Omkar Kamble who was unable to teach.
18. The documents filed by the applicant shows that the deceased used to remain on leave frequently, on account of ill health of the deceased. Statement of Yogesh Omkar Shows that due to his ill health he could not teach the student therefore the accused no.2 used to teach the student in place of him. For that he used to pay 6000/- the accused no.2 from his salary. The one of the suicide notes shows that the applicant was demanding Rs.10000/- from the deceased to hire the services of accused no.2 to teach the student in better way in place of the deceased. All these goes to show that the deceased who used to remain absent frequently on account of his ill heath. The 10 14-apl-371-19j (copy) (corrected).odt applicant, who was headmaster with intend to help the deceased, who frequently used to take leave and unable to teach student, and to prevent suffereance to the children in the school, insisted for paying Rs.10000/- to the accused no 2 a private person to teach the student in place of him as in case of Yogesh Omkar Kamble.
19. Thus, even these allegation in suicide notes are taken at their face value they do not show that intention of the applicant to aid, instigate or abet the deceased to commit suicide. Even these allegation does not amount to extortion or cheating for more that one reason. Firstly, the there was no dishonest intention, rather the applicant wants to help the deceased by providing substitute for him by paying monthly amount and for that purpose he was allegedly demanding the amount. Secondly there was no delivery of the property, which is one of the necessary ingredient of offence of extortion.
20. Though, in the present case, the entire happening depicts an unhappy state of affairs, we do not find from either the allegations in the FIR or from the suicide-note that the applicant abetted the deceased to commit suicide. Prima facie, on the face value of the FIR and the suicide-notes, if taken as they are, would not amount to 11 14-apl-371-19j (copy) (corrected).odt abatement as defined under Section 107 of the IPC. Therefore, no case is made out, whatsoever, for the abatement of suicide or Extortion.
13. 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 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 12 14-apl-371-19j (copy) (corrected).odt 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."
14. Since, no prima facie case is made out against the applicant, the FIR registered against the applicants for the offence punishable under Section 306, 385, 420, 504 read with Section 34 of the IPC is an abuse of process of law hence, it is liable to be quashed and set aside.
15 For the reasons aforesaid, the Criminal Application is allowed. Charge Sheet no. 65/2022, pursuant to First Information Report (FIR) No. 32/2019 registered at Police Station, Hiwarkhed, Tah. Telhara, Dist. Akola for the offences punishable under Sections 306, 385, 420 and 504 of the Indian Penal Code (IPC) is quashed and set aside against the applicant.
(M. W. CHANDWANI, J.) (SUNIL B. SHUKRE, J.)
RR Jaiswal
Digitally
signed by
JAISWAL
JAISWAL RAJNESH
RAJNESH RAMESH
Date:
RAMESH 2023.02.23
19:56:10
+0530