Bombay High Court
Anil Mohanlal Jain And Anr vs The State Of Maharashtra And Anr on 4 April, 2024
Bench: Prakash D. Naik, N.R.Borkar
2024:BHC-AS:19247-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.934 OF 2021
1. Anil Mohanlal Jain,
2. Prem Mohanlal Jain,
3. Shrenik Mohanlal Jain,
4. Sunil Mohanlal Jain,
5. Mohanlal Jethmal Jain,
All R/o.Lalbaug, Mumbai-400012. Applicants
versus
1. The State of Maharashtra
2. The Inspector of Police,
L.T.Marg Police Station. Respondents
Mr.Rishi Bhuta with Mr.Rakesh Jain, K.R.Shah, Pratesh Dutta,
Mr.Omer Farooq Khwaja, Risha Rathod, Vaishnavi Jhaveri i/by
Mr.Manish Bohra for Applicants.
Mr.Y.M.Nakhwa, APP, for State.
CORAM : PRAKASH D. NAIK AND
N.R.BORKAR, JJ.
DATE : 4th April 2024
PC :
1. The Applicants have invoked inherent powers of this Court
u/s.482 of Code of Criminal Procedure taking inception to the
proceedings in Sessions Case No.241 of 2021 arising out of FIR dated
20th November 2019 registered with L.T.Marg Police Station vide C.R
No.352 of 2019 for offences under Sections 306, 341, 201, 323, 504,
r/w 34 of Indian Penal Code.
2. The brief facts of the prosecution case are as under :-
Digitally signed by
MANISH MANISH
SURESHRAO SURESHRAO THATTE
Date: 2024.04.26
(a) On 21st October 2019 the accused no.4 Sunil Mohanlal
THATTE 15:12:24 +0530
Jain came to Police Station and informed that his employee Bidhan
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Jatan Aadhak committed suicide by hanging himself in the bath
room at the place given to all the employees to stay at 26/28,
Mulchand Mansion, Vitthalwadi, Mumbai;
(b) The complainant is Police Sub Inspector attached to
L.T.Marg Police Station. The complainant and accused no.4 came to
the spot. The deceased was found to have committed suicide.
Inquest panchanama was recorded. Post mortem was conducted;
(c) During the course of investigation it was revealed that
deceased was employee of the accused. It was suspected by the
employer that he has committed misappropriation of gold
ornaments. He was assaulted. Writing was executed by the
deceased with undertaking that gold and cash would be returned.
Suicide note was written by accused.
3. Accused were arrested. They were granted bail. On
completing investigation charge sheet was filed.
4. Learned advocate for applicants submitted as under :
(i) Offence u/s.306 of IPC is not made out;
(ii) There is no evidence to establish offence u/s.306, 341,
201. 323, 504 of IPC;
(iii) Accused has no mens rea nor they had abetted the
deceased to commit suicide;
(iv) The accused no.4 himself had informed about the
incident to the police;
(v) There has to be positive element of instigation on the
part of accused for commission of offence u/s.306 of IPC;
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(vi) Wife of the deceased has not made grievance against
accused;
(vii) There is no prima facie case against accused that they
have committed alleged offence;
(viii) The suicide note indicate that deceased was assaulted
between 4th October 2019 to 10th October 2019. The allegations
were false. There were no hurt marks on the body of deceased.
(ix) The statements of witnesses show that there was no
complaint against accused. The accused had asked the deceased and
other employee Mr.Suresh Puri to repay the amount of stolen gold
which any person would do in the course of business. The accused
had shown humanity towards deceased and Suresh Puri;
(x) The ingredients of abetment and mens rea to commit
offence u/s.306 of IPC are absent. There is no active act or direct act
on the part of accused, which can be said that it compelled the
deceased to take drastic steps;
(xi) The alleged incident had occurred on 4 th October 2019
whereas the deceased committed suicide on 21st October 2019.
5. Learned advocate for Applicants has relied upon following
decisions :
(i) Mohit Singhal and another Vs. State of Uttarakhand and
others - (2024)1-SCC-417;
(ii) Meenabai Deepak Mahale and others Vs. The State of
Maharashtra and another - Writ Petition No.104 of 2021 decided on
27-3-2024;
(iii) Anirudh Arun Bhandarkar and another Vs. The State of
Maharashtra and another - Criminal Application No.1416 of 2019
decided on 16-1-2024.
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6. Learned APP submitted that there is evidence against
Petitioners. The deceased was compelled to commit suicide. There
was instigation to commit suicide. There is evidence to show that
the deceased was harassed by accused. The suicide note was written
by accused. The statements of witnesses support prosecution case.
At this stage this is not the stage to appreciate evidence. Prima facie
case is made out against Applicants. There was abetment to commit
suicide.
7. The deceased was employed with the accused. The accused are
conducting business of jewellery. It was suspected that deceased and
other employee Suresh Puri hAd misappropriated gold from the shop
of accused. They were confronted. Intimation was given to the wife
of deceased. Intimation was also given to the relatives of other
employee of Suresh Puri. Agreement was executed with Suresh Puri.
He agreed to return gold ornaments. The deceased was allowed to
stay in the room. He was occupying the room with other employees.
He was not allowed to work in the shop due to his involvement in
theft of gold. The statement of wife of the deceased was recorded in
which she stated that she received a phone call on 6 th October 2019
from Applicant no.1 and he had informed that her husband with the
help of Suresh Puri committed theft of gold ornaments in the shop.
She was told to come to Mumbai for discussing the issue. She
informed the Applicant no.1 that she has a small child and it would
not be possible for her to come to Mumbai. She told the accused to
discuss the issue with her husband and resolve the same. In the
event her husband is liable for the theft of gold, the amount can be
deducted from his salary. Subsequently she learnt that her husband
has committed suicide. Statement of Tapan Manna was recorded
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during investigation. He stated that he is one of the employee with
accused. The accused had noticed misappropriation of gold. Inquiry
was made with employees. They were informed that police
complaint would be made. Suresh Puri and Bidhan Aadhak
(deceased) admitted that they have committed the theft. They were
confronted. They were assaulted Thereafter deceased was not
assaulted by the accused.
8. There is no evidence to establish charge of abetment to
commit suicide.
9. In the case of Mohit Singhal and another (supra) it was
observed by Hon'ble Supreme Court that to attract clause 107 of IPC,
there must be instigation in some form on part of accused to cause
deceased to commit suicide. Accused must have mens rea to
instigate deceased to commit suicide. Act of instigation must be of
such intensity that it is intended to push deceased to such a position
under which he or she has no choice but to commit suicide. Such
instigation must be in close proximity to act of committing suicide.
10. The prosecution has to prima facie establish that accused had
intention to aid or instigate or abet the deceased to commit suicide
and in the absence of availability of such material the accused cannot
be compelled to face trial for the offence u/s.306 of IPC.
11. In the case of Sanju @ Sanjay Sengar Vs. State of Madhya
Pradesh1, the Appellant before the Apex Court was the brother of
wife of deceased. It was the prosecution case that after the marriage
of deceased with appellant's sister, there was continuous ill treatment
by the deceased and his family members to his appellant's sister. She
had gone to her parents house and started living with the Appellant.
1 2002 Cri.L.J. 2796
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About two months prior to the incident, the Appellant advised the
deceased to take his sister back to her matrimonial house and treat
her properly. On 25th July 1998, the Appellant visited the place of
the parents of deceased and pleaded with them that his sister should
be rehabilitated in the matrimonial home and should not be
physically ill-treated or harassed. The appellant threatened the
parents of the deceased that if they do not mend their behaviour
towards his sister, he would be compelled to resort to filing a
complaint under Section 498-A of IPC. The Parents of the deceased
expressed helplessness. They informed the deceased about the same.
He went to the house of the parents of the Appellant, where quarrel
took place between them. The deceased returned alone and told his
brothers and others that Appellant had threatened and abused him
by using filthy words. On 27 th July 1998, he committed suicide.
Suicide note was left by him. On the basis of suicide note, charge-
sheet was filed against the accused/Appellant. The Apex Court
considered the decisions and in the light of definition of abetment
under Section 107 of IPC held that, even if the Court accepts the
prosecution story that the appellant told the deceased 'to go and die'
that itself does not constitute the ingredient of 'instigation'. The
word 'instigate' denotes incitement or urging to do some drastic or
unadvisable action or to stimulate or incite. Presence of mens rea is
necessary concomitant of instigation.
12. In the case of Ramesh Kumar Vs. State of Chattisgarh2 it is
observed 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
2 (2001) 9 SCC 618
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be suggestive of the consequence. Yet a reasonable certainty to incite
the consequence must be capable of being spell out. A word uttered
in the fit of anger or emotion without intending the consequences to
actually follow cannot be said to be instigation. Making the
deceased free-to go wherever she like and to do whatever she
wished, does not and cannot mean even by stretching that the
accused had made the deceased free "to commit suicide".
13. In the case of Madan Mohan Singh Vs. State of Gujrat and
Another3, the appellant therein was working as DET in Bharat
Sanchan Nigam Ltd. The deceased was working as driver in BSNL.
The complaint was filed by the wife of the deceased. The deceased
has written suicide note stating that the accused was responsible for
his death. The Apex Court observed that there is absolutely nothing
in suicide note or the FIR which would even distantly be viewed as
an offence much less under Section 306 of IPC. There must be an
allegation that the accused had instigated the deceased to commit
suicide or had engaged with some other other person in a conspiracy
and lastly that the accused accused had in any way aided any act or
illegal omission to bring about the suicide. In order to bring an
offence under Section 306 of IPC, specific abetment as contemplated
by Section 107 of IPC on the part of the accused with an intention to
bring about the suicide of the person concerned as a result of the
abetment is required. The intention of the accused to aid or to
instigate or to abet the deceased to commit suicide is a must for this
particular offence under Section 306 of IPC. Unless there is specific
allegation and material of definite nature, (not imaginary or
inferential one), it would be hazardous to ask the accused to face the
trial. A criminal trial is not exactly a pleasant experience.
3 (2010) 8 SCC 628
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14. In the case of S.S. Cheena Vs. Vijay Kumar Mahajan4, the
factual matrix indicate that there was dispute between two students.
This came to the notice of the the head of the department, who
asked both the students to submit their versions of the incident in
writing. Both gave their versions. Inquiry was conducted by the
Security Officer/Appellant. During the inquiry, one of the
student/deceased committed suicide. Suicide note was found. FIR
was registered under Section 306 of IPC. The Apex Court observed
that abetment involves the 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 the Court it is clear
that in order to convict a person under Section 306 of 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. The
deceased in that case was hypersensitive to ordinary petulance,
discord and differences which happen day to day life. Human
sensitivity of each individual differs from the other. Different people
behave differently in the same situation. It would not travesty of
justice to compel the Appellant to face a criminal trial without any
credible material whatsoever.
15. In the case of Chitresh Kumar Chopra Vs. State Govt. of NCT
of Delhi)5 the Apex Court dealt with the dictionary meaning of the
words "instigation" and "goading". The Court opined that there
should be intention to provoke, incite or encourage the doing of an
4 2010 All MR (Cri) 3298 (S.C.)
5 (2009) 16 SCC 605
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act by the latter. Each person's suicidability pattern is different from
the other. Each person has his own idea of self-esteem and self-
respect. It is impossible to lay down any straightjacket formula in
dealing with such cases. Each case has to be decided on the basis of
it's own facts and circumstances.
16. In the State of Kerala and others Vs. S Unnikrishnan Nair and
others6, it was observed that the plain reading of the suicide note
which forms the fulcrum of the allegations on plain reading of the
same, it is difficult to hold that there has been any abetment by the
accused. The note, except saying that the accused compelled to do
everything and cheated him and to put him in deep trouble contents
nothing else. The accused were inferior in rank and it is surprising
that such a thing could happen.
17. In the present case the confrontation of accused over alleged
assault which is not borne out by evidence and not in proximity of
incident of Suicide, the charge under Section 306 IPC would not
stand. The impugned FIR and the proceedings arising thereon are
required to be quashed.
ORDER
i) Criminal Application No.934 of 2021 is allowed and disposed off;
ii) Proceedings in Sessions Case No.241 of 2021 arising out of C.R. No.352 of 2019 registered with L.T.Marg Police Station is quashed and set aside.
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