Bombay High Court
1. Ravindra Bhimrao Khillare vs 1. The State Of Maharashtra on 6 June, 2017
Author: S.S. Shinde
Bench: S.S. Shinde, K.K. Sonawane
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.3807 OF 2016
1) Ravindra s/o Bhimrao Khillare,
Age-36 years, Occu:Labour,
2) Seema w/o Ravindra Khillare,
Age-30 years, Occu:Household,
3) Deepak s/o Bhimrao Khillare,
Age-28 years, Occu:Labour,
4) Kalpana w/o Deepak Khillare,
Age-23 years, Occu:Household,
All R/o- Bagsher Jung,
Near Rama Nagar, Darga Road,
Kranti Chowk, Aurangabad,
Dist-Aurangabad.
...APPLICANTS
VERSUS
1) The State of Maharashtra,
Through Police Station,
Osmanpura, Aurangabad,
Dist-Aurangabad,
2) Jilabai w/o Atmaram Ingale,
Age-60 years, Occu:Household,
R/o-Galli No.2, Rama Nagar,
Osmanpura, Aurangabad.
...RESPONDENTS
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...
Mr.S.J. Salunke Advocate for Applicants.
Mr.P.G. Borade, A.P.P. for Respondent No.1.
Mr.S.G. Ladda Advocate for Respondent No.2.
...
CORAM: S.S. SHINDE AND
K.K. SONAWANE, JJ.
DATE OF RESERVING JUDGMENT : 4TH APRIL,2017.
DATE OF PRONOUNCING JUDGMENT: 6TH JUNE, 2017.
JUDGMENT [PER S.S. SHINDE, J.]:
1. Rule. Rule made returnable forthwith and
heard finally with the consent of the learned
counsel appearing for the parties.
2. By way of filing this Application, the
Applicants have prayed that the First Information
Report No.78 of 2016 dated 15th April, 2016
registered with Police Station, Osmanpura,
Aurangabad for the offence punishable under
Section 306 read with Section 34 of the Indian
Penal Code, may be quashed and set aside.
3. Respondent No.2 herein - Jijabai w/o
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Atmaram Ingale, who is mother of deceased
Chandrakant, lodged First Information Report
stating therein that, her married son Chandrakant
was a practicing as an Advocate. He was blessed
with a son namely Vaibhav and a daughter namely
Ranjandini.
. On 5th April, 2016, during morning hours,
wife of Chandrakant saw her husband in a hanging
condition to a roof of room situate in their own
house. He was removed from the house and was taken
to the hospital. When he was hospitalized, a chit
was found in his pocket. It was written in the
said chit/note that, an accused Ravindra, Deepak
and their wives i.e. Applicant Nos.2 and 4, with
co-accused Prakash are responsible for his
commission of suicide. All of them harassed him
for repayment of money, and also threatened to
kill him. Due to said harassment by the accused
persons, he is committing suicide. On the back
side of the said chit, it was written, that the
accused persons gave him money on condition of
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paying the same back to them with interest. Though
the said amount was repaid with interest, again
demand was made by them, and cheque was obtained
from Chandrakant and also undertaking was taken on
the bond. On 4th April, 2016, Deepak snatched
mobile from him. The informant further alleged
that, the accused with an intention that
Chandrakant should commit suicide, instigated an
act of commission of suicide by Chandrakant and
ultimately Chandrakant committed suicide, and died
on 12th April, 2016. On the basis of an aforesaid
information Crime was registered against five
accused persons including the present Applicants
for the offence punishable under Section 306 read
with 34 of the Indian Penal Code (for short "I.P.
Code").
4. Hence this Application is filed by the
Applicants, for quashing the First Information
Report.
5. Learned counsel appearing for the
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applicants submitted that, the police ought not to
have registered the crime under Section 306 of the
I.P. Code. Merely being named in the alleged
suicide note, one shall not immediately jump to
the conclusion that a person is an offender. There
must be an intentional aiding to the commission of
suicide by the accused. The contents of the
suicide note and other attending circumstances
have to be examined so as to find out, whether the
act/acts of the accused would constitute an
abetment, instigation or intentional aiding
within the meaning of Section 107 of the I.P.
Code, so as to constitute an offence punishable
under Section 306 of I.P. Code.
6. Learned counsel further submitted that
Chandrakant died on 12th April, 2016, and the
First Information Report was lodged on 15th
April, 2016. There is delay in lodging the First
Information Report which is not explained by the
informant. Thus an allegations levelled against
the Applicants are the result of due deliberation
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and concoction.
7. Learned counsel further submitted that
the Applicants never lend any amount on the basis
of repayment of said amount on interest basis to
deceased Chandrakant. Applicants are not involved
in any money lending business. It is submitted
that deceased Chandrakant was practicing as an
Advocate in the Civil and Criminal Court at
Aurangabad. One Subhash Sukhdeo Jadhav is the
relative of accused Ravindra. Subhash was in jail
in connection with the offence of rape. Accused
Ravindra was acquainted with deceased Chandrakant
being a lawyer. The merits of bail application of
Subhash Jadhav were discussed with deceased
Chandrakant. It is submitted that, Chandrakant
taken exorbitant amount of Rs.60,000/- from Subash
Jadhav. An amount of Rs.60,000/- paid to
Chandrakant was demanded by accused Ravindra, as
Subhash was not released on bail. It is submitted
that the cheque of Rs.60,000/- was issued by
deceased Chandrakant in favour of accused
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Ravindra. However when the cheque was presented,
it was dishonoured for not having sufficient
funds.
8. Learned counsel for the Applicants
submits that deceased Chandrakant was addicted to
bad vices. He borrowed huge amount from many
people, but was unable to repay the same. His
family life was also disturbed due to his bad
habits and huge debt incurred by him. Due to the
huge debt and family problems, Chandrakant
committed suicide. It is submitted that only being
relatives of accused No.1 Ravindra, rest of the
accused are roped into an alleged offence. It is
submitted that, alleged note written by
Chandrakant before commission of suicide is
fabricated document, and no reliance whatsoever
can be placed on contents of the said chit.
9. Learned counsel appearing for the
Applicants submits that, even if an allegations in
the First Information Report are taken at its face
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value and read in its entirety, prima facie
alleged offences have not been disclosed against
the Applicants. An allegations against the
Applicants are so absurd that no prudent person
would believe the same. The continuation of the
criminal proceedings on the basis of the First
Information Report which is lodged against the
Applicants only with a view of wrecking vengeance,
would be sheer abuse of the process of law, and
ultimately, trial would not result into
conviction of the Applicants.
10. Learned counsel submitted that an
abetment involves mental process of an instigation
or intentionally aiding person to do certain
thing. Some positive act by accused is essential
to constitute abetment. In support of aforesaid
submission, the learned counsel placed reliance on
the law laid down by the Supreme Court in the case
of Gangula Mohan Reddy vs. State of A.P. 1 Learned
counsel further submitted that merely on
1 2010 Cri. L.J. 2110
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allegations of harassment without there being any
positive action proximate to time of occurrence on
the part of accused which led or compelled person
to commit suicide, conviction in terms of Section
306 of the I.P. Code is not sustainable. In
support of his submissions, learned counsel placed
reliance on the ratio laid down in the case of
Vijay @ Munna Bharat Gurkhde vs. State of
Maharashtra2. Learned counsel in support of his
submissions that persistent demand made by the
accused who claim that they are entitled to
recover money from any other person, cannot be
equated to an overt act as understood in Section
107 of the I.P. Code, placed reliance on the ratio
laid down in the case of Santosh Nathulmal Goenka
and another vs. State of Maharashtra, through its
P.S.O.3 Learned counsel further submitted that, to
constitute an offence under Section 306 of I.P.
Code, it is necessary for prosecution to at-least
prima facie establish that the accused had an
intention to aid the deceased to commit suicide.
2 2014(4) Bom.C.R.(Cri.)72
3 2010(1) Bom.C.R.(Cri.) 233
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In absence of availability of such material, the
Applicants cannot be compelled to undergo ordeal
of trial. In support of his aforesaid
submissions, learned counsel placed reliance on
the law laid down in the case of Binod Ratan
Sarkar vs. State of Maharashtra4.
11. Therefore, relying upon the averments in
the Application, grounds taken therein, learned
counsel appearing for the Applicants submits that
the Application deserves to be allowed.
12. Learned A.P.P. appearing for the State,
relying upon the investigation papers and in
particular the contents of the First Information
Report, submits that an ingredients of alleged
offences have been clearly attracted on reading
the allegations in its entirety. It is submitted
that an allegations in the First Information
Report will have to be taken as it is and can be
tested only during trial. It is submitted that in
4 2014 All M.R.(Cri.) 1216.
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the suicide note the deceased has named the
Applicants. It is submitted that the Investigating
Officer has recorded statements of various
witnesses during the course of investigation and
also collected incriminating material and on the
basis of said material trial can proceed.
Therefore, he submits that the Application may be
rejected.
13. Learned counsel appearing for Respondent
No.2 submits that, an allegations in the First
Information Report will have to be taken as it is
and appreciation of those allegations or
statements of witnesses even in a summary manner
is not permissible, when there is a prayer for
quashing the First Information Report. He invites
our attention to the affidavit in reply filed on
behalf of Respondent No.2 and submits that the
Application filed by the Applicants is absolutely
erroneous, illegal and same is not maintainable at
all. Applicants have incorporated factual points
in the Application, and those points unless
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subjected to the test in the trial can not be
decided in either way. Therefore he submits that
in view of the position of law, the Application
deserves to be dismissed in limine. It is further
submitted that the deceased Chandrakant prior to
the registration of crime, has lodged a complaint
with the Police Station, Osmanpura, Aurangabad
against the Applicants and others complaining
about the harassment and threats given to him. It
is further submitted that deceased Chandrakant
left a suicide note, which prima facie indicates
the commission of cognizable offence. It is
further submitted that the decision over the facts
involved, needs full fledged trial. The complaint
cannot be thrown away at the threshold and that
too by using the extra ordinary and/or inherent
powers by this Court. In support of contentions
raised during the course of arguments, learned
counsel appearing for Respondent No.2 placed
reliance upon the judgments of the Supreme Court
in the cases of (i) Didigam Bikshapathi and anr
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V/s State of A.P.5, (ii) The State of Punjab V/s
Iqbal Singh and others6, (iii) Surender V/s
State of Haryana7, (iv) Kishori Lal V/s State of
M.P.8, (v) Brij Lal V/s Prem Chand and another 9,
and (vi)Dammu Sreenu V/s State of A.P.10.
Therefore, relying upon the averments in the
affidavit in reply, annexures thereto and also
investigation papers, learned counsel submits that
the Application may be rejected.
14. We have given careful consideration to
the submissions advanced by learned counsel
appearing for the Applicants, learned A.P.P.
appearing for Respondent No.1/State and learned
counsel appearing for Respondent No.2. With their
able assistance, we have carefully perused the
averments and grounds taken in the application,
contents of the first information report, reply
filed by Respondent No.2 and investigation papers.
5 2008 Cri. L.J. 724
6 1991 Cri. L.J. 1897
7 2007 Cri. L.J. 779
8 AIR 2007 SC 2457
9 AIR 1989 SC 1661
10 2009 Cri.L.J. 3728
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Upon careful perusal of the contents of the first
information report and also the chit recovered
from the pocket of deceased Chandrakant, it is
abundantly clear that, the names of Applicant no.1
- Ravindra Bhimrao Khillare and Applicant no.3 -
Deepak Bhimrao Khillare are mentioned in the first
information report. Not only that, it is stated in
the said chit that, due to severe harassment given
by the accused, he is committing suicide. There is
specific overt act attributed to Applicant No.3 -
Deepak Bhimrao Khillare that, on 4th April, 2016,
he snatched mobile phone from the custody of
Chandrakant (deceased) and Chandrakant committed
suicide on 5th April, 2016.
15. Respondent No.2 has filed affidavit in
reply and along with the said affidavit in reply,
there is one application addressed by Chandrakant
(now deceased) to the Police Inspector, Osmanpura
Police Station, Aurangabad. In the said
application, the name of present Applicant No.3 -
Deepak Bhimrao Khillare is mentioned. It further
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appears that, on the basis of the said
application, Crime No.333/2014 came to be
registered with Police Station, Osmanpura,
Aurangabad (City) on 29th November, 2014 at 11.30
a.m. Therefore, the question of entertaining the
application of Applicant No.3 Deepak Bhimrao
Khillare does not arise. So far as Applicant No.1
- Ravindra Bhimrao Khillare is concerned, he is
specifically named in the note written by
Chandrakant before committing suicide. Therefore,
the application of Applicant No.1 - Ravindra
Bhimrao Khillare deserves no consideration.
16. So far as Applicant No.2 - Seema Ravindra
Khillare and Applicant No.4 - Kalpana Deepak
Khillare are concerned, their names are not
mentioned in the first information report. It is
only mentioned that, they are wife of Ravindra
Bhimrao Khillare and wife of Deepak Bhimrao
Khillare, respectively. There is no specific overt
act attributed to them. Upon careful perusal of
the entire investigation papers, except statements
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of the witnesses, that too without mentioning the
names of the Applicant No.2 and Applicant No.4,
there are general allegations against them. Upon
close scrutiny of the allegations in the first
information report, contents of the chit i.e.
Suicide Note, and investigation papers, so far as
Applicant No.2 Seema Ravindra Khillare and
Applicant No.4 Kalpana Deepak Khillare are
concerned, there is no nexus between so called
commission of suicide by Chandrakant and the
general allegations made against them. Therefore,
there is no material suggesting any instigation,
abetment or intentional aid on the part of
Applicant Nos.2 and 4 in commission of suicide by
Chandrakant.
17. The Supreme Court in the case of S.S.
Chheena V/s Vijay Kumar Mahajan and another 11, in
para 25 observed that, the abetment involves
mental process of instigating a person or
intentionally aiding a person in doing of a thing.
11 (2010) 12 SCC 190
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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 of the I.P. Code 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/she
committed suicide.
18. The Supreme Court in the case of Madan
Mohan Singh V. State of Gujarat and another 12,
while explaining the scope of Sections 306 and
294, in the facts of that case, in para 9 held
thus:-
"It is absurd to even think that a superior
officer like the appellant would intend to
bring about suicide of his driver and,
12 2010 AIR SCW 5101
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therefore, abet the offence. In fact, there
is no nexus between the so-called suicide
(if at all it is one for which also there
is no material on record) and any of the
alleged acts on the part of the appellant.
There is no proximity either. In the
prosecution under Section 306, IPC, much
more material is required. The Courts have
to be extremely careful as the main person
is not available for cross-examination by
the appellant/accused. Unless, therefore,
there is specific allegation and material
of definite nature (not imaginary or
inferential one), it would be hazardous to
ask the appellant/accused to face the
trial. A criminal trial is not exactly a
pleasant experience. The person like the
appellant in present case who is serving in
a responsible post would certainly suffer
great prejudice, were he to face
prosecution on absurd allegations of
irrelevant nature."
19. In the case of Dilip s/o Ramrao Shirasao
and others vs. State of Maharashtra and another
(Criminal Application No.332 of 2016) decided on
5th August, 2016, the Division Bench of the Bombay
High Court, Bench at Nagpur considered the various
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Judgments of the Supreme Court and the High Court
and in Para 20 of the Judgment, held thus:
"20. As has been held by Their Lordships
of the Apex Court that for permitting a
trial to proceed against the accused for
the offence punishable under Section 306 of
the Indian Penal Code, it is necessary for
the prosecution to at least prima facie
establish that the accused had an intention
to aid or instigate or abet the deceased to
commit suicide. In the absence of
availability of such material, the accused
cannot be compelled to face trial for the
offence punishable under Section 306 of the
Indian Penal Code. As has been held by
Their Lordships of the Apex Court that
abetment involves mental process of
instigating a person or intentionally
aiding a person in doing of a thing and
without a positive act on the part of the
accused in aiding or instigating or
abetting the deceased to commit suicide,
the said persons cannot be compelled to
face the trial. Unless there is clear mens
rea to commit an offence or active act or
direct act, which led the deceased to
commit suicide seeing no option or the act
intending to push the deceased into such a
position, the trial against the accused
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under Section 306 of the Indian Penal Code,
in our considered view, would be an abuse
or process of law."
20. Therefore, viewed from any angle, there
is no positive act of instigation, abetment or
intentional aiding attributed to applicant nos.2
and 4, within the proximity of commission of
suicide by Chandrakant. In that view of the
matter, the first information report qua Applicant
Nos.2 and 4 deserves to be quashed and set aside.
Hence, we pass the following order :-
ORDER:-
(i) The Criminal Application is partly allowed. The F.I.R. bearing C.R. No.78 of 2016 registered on 15th April, 2016 with Police Station, Osmanpura, Aurangabad is quashed and set aside in respect of Applicant No.2 - Seema W/o Ravindra Khillare and Applicant No.4 - Kalpana W/o Deepak Khillare.
(ii) The Criminal Application, so far as ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:04:36 ::: cra3807.16 21 Applicant No.1 - Ravindra S/o Bhimrao Khillare and Applicant No.3 - Deepak S/o Bhimrao Khillare, stands rejected. The prosecution can proceed against them.
21. Rule made absolute on above terms. The Criminal Application stands disposed of accordingly.
22. An observations made hereinabove are prima facie in nature and confined to the adjudication of the present Application only. [K.K. SONAWANE, J.] [S.S. SHINDE, J.] sga/ ::: Uploaded on - 06/06/2017 ::: Downloaded on - 07/06/2017 01:04:36 :::