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RAHUL V/S THE STATE OF MAHARASHTRA, THROUGH INVESTIGATING OFFICER & ANOTHER, decided on Thursday, October 5, 2017.
[ In the High Court of Bombay (Aurangabad Bench), Criminal Application No. 1730 of 2017. ] 05/10/2017
Judge(s) : S.S. SHINDE & MANGESH S. PATIL
Advocate(s) : Applicant N.L. Chaudhari . R1, M.M. Nerlikar, A.P.P., Shrimant Mundhe, Amicus Curiae.
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    S.S. Shinde J.1. This Application is filed by the Applicant praying therein to quash and set aside the First Information Report bearing C.R. No.35 of 2016 registered on 7th March 2016 with Shindkheda Police Station Tq-Shindkheda DistDhule for the offence punishable under Section 306 of the Indian Penal Code.2. It is the case of the Applicant that he is a Government servant serving as Gramsevak. The service record of the Applicant is clean and unblemished. The Government of Maharashtra started a scheme of Mahatma Gandhi Rashtriya Rojgar Hami Yojna (for short M.R.G.S. Scheme) for digging and constructing wells. In the said scheme 60% amount is to be paid/allotted and distributed to the workers who conduct the work of digging well and 40% of amount is to be paid towards material charges. It is the further case of the Applicant that one Ramesh Pandit Patil (deceased) having land in Bhadane Shivar had applied for sanction of a well under the said M.R.G.S. Scheme. Being Gramsevak it was the duty of the Applicant to disburse the cheques to the beneficiaries of the said M.R.G.S. Scheme. On 23rd December 2015 said Ramesh Pandit Patil committed suicide by consuming poisonous medicine. Immediately on the said date the informant i.e. Kailas Pandit Patil real brother of deceased Ramesh informed Shindkheda police station about accidental death of his brother and accordingly A.D. No.90 of 2015 came to be registered with Shindkheda Police Station on 24th December 2015.3. It is the further case of the Applicant that on the basis of incident of suicide of deceased Ramesh Patil Tahsildar Shindkheda had submitted a detail report to the SubDivisional Officer Shirpur stating therein that Talathi and Circle Officer had conducted enquiry by visiting the spot of incident and they have also submitted panchnama and statement of wife of deceased and also bank loan record of the deceased Ramesh Patil. It has been stated in the said report that Tahsildar Shindkheda Taluka Agricultural Officer Shindkheda and Police Inspector of Shindkheda Police Station had personally visited Mauje Hatnoor and have submitted self explanatory report as per the provisions of Government Resolution dated 6th September 2007.4. It is submitted by the Applicant that deceased Ramesh as well as his family members were insisting the Applicant to issue one single cheque of the sanctioned amount of Rs.2 90 000/-. Whereas actually the payment was to be made to the workers for an amount of Rs.1 98 108/- and payment of Rs.91 892/- was to be made to the suppliers of material. On 26th November 2015 the Applicant had issued cheques to the concerned workers and the same were cleared by them. Being annoyed by this procedural and regular act of the Applicant the family members of the deceased had assaulted and abused the Applicant on 21st December 2015. Accordingly the Applicant had intimated about the same to the Superintendent of Police and Chief Executive Officer Dhule. Thereafter on 23rd December 2015 Ramesh Pandit Patil committed suicide. However after a period of more than two months i.e. on 7th March 2016 an informant Kailas Pandit Patil lodged First Information Report (in short FIR) with Shindkheda police station alleging that the Applicant Gramsevak was intentionally not issuing cheque to his deceased brother. It is alleged against the Applicant that inspite of sanction of the amount and inspite of various requests and demands the Applicant had not issued cheque in the name of deceased Ramesh and intentionally issued a cheque to suppliers/ traders. Due to said mental harassment it is alleged that brother of the informant committed suicide on 23rd December 2015 by consuming poisonous medicine. Immediately after registration of the crime the Applicant had filed application seeking anticipatory bail and learned Additional Sessions Judge Dhule by order dated 16th March 2016 had granted anticipatory bail in favour of the Applicant.5. Relying upon the grounds taken in the Application learned counsel appearing for the Applicant submits that the Applicant has not committed any offence as alleged and he is not at all involved in the said crime nor he has abated the deceased to commit suicide as alleged in the FIR. It is submitted that the Government of Maharashtra vide Government Circular dated 7th March 2015 issued instructions in respect of construction of wells under the M.R.G.S. Scheme. In the said Circular procedure for payment of material as well as payments of labourers has been prescribed and as per the said scheme the payment has been made by the Applicant and the allegations made in the FIR are incorrect.6. Learned counsel further submitted that deceased Ramesh had availed loan of Rs.3 00 000/- from State Bank of India Nardhana Branch. From the report submitted by Tahsildar Shindkheda it clearly reveals that deceased Ramesh had availed loan and as there was no income from the said agricultural land since last more than one year due to excess rain and natural calamity Ramesh had committed suicide. It is further submitted that even in the statement of wife of deceased Ramesh namely Smt. Ashabai Ramesh Patil recorded on 30th December 2015 she has clearly stated that her husband was under mental tension of natural calamities and drought situation and he was unable to make repayments of loan installments and as such he has committed suicide.7. Learned counsel further submitted that the informant Kailas Pandit Patil had initially registered Accidental Death Case with police station on 23rd December 2015 and after lapse of a period of more than two months he has lodged alleged FIR alleging that due to mental harassment on the part of the Applicant his brother Ramesh Patil has committed suicide and the belatedness of the FIR clearly smokes of concoction and false implication. It is further submitted that the Additional Sessions Judge Dhule while granting anticipatory bail to the Applicant held that the allegations made against the Applicant are vague and omnibus in nature the FIR lodged is also at belated stage and it is not the case of the informant that sanctioned amount was not disbursed.8. Learned counsel further submits that the Supreme Court in the case of Madan Mohan Singh vs. State of Gujarat and another (2010 A.I.R. S.C.W. 5101) has held that it would have to be objectively seen whether the allegations made could reasonable be viewed as proper allegations against the accused to the effect that he had intended or engineered the suicide of the concerned person by his acts words etc. It is further held that the baseless and irrelevant allegations could not be used as a basis for prosecution for a serious offence under Section 306 of the I.P. Code. Learned counsel further submits that the Supreme Court in the case of Amalendu Palalian Jhantu vs. State of W.B. (A.I.R. 2010 S.C. 512) held that in order to bring a case within the purview of Section 306 of I.P. Code 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 role by an act of instigation or by doing certain act to facilitate the commission of suicide.9. Learned counsel further submits that the the FIR which does not constitute any prima facie case or spell out commission of any offence should be quashed by exercising the jurisdiction under Section 482 of the Code of Criminal Procedure. Learned counsel submitted that the ingredients of the alleged offence are not at all attracted and as such the FIR itself is vague and as such the said proceeding of the alleged crime deserves to be quashed and set aside by allowing the Application.10. On the other hand learned A.P.P. appearing for the State invites our attention to the allegations in the FIR and submits that the allegations in the FIR clearly disclose the alleged offence. Relying upon the investigation papers the learned A.P.P. submits that the prosecution agency has collected sufficient material and on the basis of said material trial can proceed.11. Mr. Munde learned Amicus Curiae submits that prima facie alleged offences are disclosed and therefore the FIR may not be quashed.12. We have given anxious consideration to the submissions of the learned counsel appearing for the Applicant and learned A.P.P. appearing for the State with their able assistance we have carefully perused the contents of the First Information Report and also the investigation papers made available by the learned A.P.P. and the exposition of law in the reported Judgments relied upon by the learned counsel appearing for the Applicant.13. At the outset it would be appropriate to reproduce herein below the relevant portion/gist of the allegations made in the First Information Report:HINDI14. Upon careful perusal of the contents of the Application and the First Information Report it appears that under the M.R.G.S. Scheme for digging and constructing the well an amount of Rs.2 90 000/was sanctioned to Ramesh Patil (deceased). It is alleged in the First Information Report that though Ramesh (deceased) was asking the Applicant to issue cheque of remaining amount of Rs.82 000/- in his favour the Applicant was avoiding the same and ultimately the Applicant had issued the cheque in the name of traders/material suppliers which caused mental tension to Ramesh (deceased). The Applicant has placed on record a copy of Government Circular dated 7th March 2015 wherein guidelines are issued regarding the M.R.G.S. Scheme and how the funds are to be distributed/disbursed for digging and constructing the wells. The said Government Circular specifically provides that Grampanchayat has to purchase the material and the the cheque has to be issued in favour of the trader/material supplier and in any case the beneficiary should not be permitted to purchase the material. It is not the case of the informant that the Applicant has not disbursed the amount under the scheme but it is the allegation of the informant that the cheque was issued in favour of the trader from whom the material for digging the well was purchased. Thus it is clear that the Applicant has acted in accordance with the provisions of M.R.G.S. Scheme. It appears that the Applicant has issued concerned cheques on 26th November 2015 and Ramesh Patil (deceased) had committed suicide on 23rd December 2015. If the Applicant has issued cheques of the amount sanctioned under M.R.G.S. Scheme in favour of the workers and traders/material suppliers it cannot be said that he acted instigated or intentionally aided in commission of suicide by Ramesh Patil (deceased). By any stretch of imagination it cannot be said that the act of the Applicant to issue cheques of the said amount in favour of concerned workers and traders was abetment instigation or intentionally aiding in commission of the suicide. Considering the circumstances brought on record and also upon perusal of the investigation papers it cannot be said that Ramesh had no option but to commit suicide due to the act of the Applicant of issuing the cheques of the sanctioned amount under the M.R.G.S. Scheme in favour of the workers and traders. In absence of any abetment instigation or intentional aid for commission of suicide in proximate time and date of the alleged commission of suicide the Applicant cannot be forced to face the trial. In order to constitute offence under Section 306 of the I.P. Code the prosecution must show that there was instigation or intentional aid or conspiracy for commission of suicide by the person who has committed the suicide.15. The Supreme Court in the case of S.S. Cheena V/s Vijay Kumar Mahajan and another (2010) 12 SCC 190) observed that the abetment involves 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 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 leads 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 commits suicide.16. At this juncture it would be useful to make a reference to the Judgment of the Supreme Court in the case of Madan Mohan Singh V. State of Gujarat and another (2010 AIR SCW 5101). In said case the deceased therein was working as driver under the Ex. Officer i.e. appellant therein. The said driver allegedly committed suicide due to harassment and insulting behaviour by the appellant therein. He left the suicide note alleging therein that the appellant therein asked the driver to keep the keys of the vehicle on the table and not to take away them. It was further stated “I am going to commit suicide due to his functioning style. Alone M.M. Singh D.E.T. Microwave Project is responsible for my death. I pray humbly to the officers of the department that you should not cooperate as human being to defend M.M. Singh has acted in breach of discipline disregarding the norms of discipline. I humbly request the Enquiry Officer that my wife and son may not be harassed. My life has been ruined by M.M. Singh.”.The Supreme Court in the facts of aforesaid case while explaining the scope of Sections 306 and 294 visavis 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 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.17. In the facts of the present case also there is no nexus between so called suicide and any of the alleged acts on the part of the Applicant. There is no proximity either. As already observed the Applicant has issued concerned cheques on 26th November 2015 and Ramesh Patil (deceased) had committed suicide on 23rd December 2015 i.e. almost after one month from the date of issuance of cheques and therefore the said act cannot be said to be in proximate date and time of issuance of cheques. Even if the allegations in the FIR are read in its entirety the same would not even remotely suggest that the Applicant abetted intentionally aided or instigated suicide by Ramesh.18. In the case of of Dilip s/o Ramrao Shirasao and others vs. State of Maharashtra and another (Criminal Application No.332 of 2016) dated 5th August 2016 the Division Bench of the Bombay High Court Bench at Nagpur considered the various 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 under Section 306 of the Indian Penal Code in our considered view would be an abuse or process of law.19. Therefore in the light of discussion in foregoing paragraphs we are of the opinion that all the acts/ allegations attributed to the Applicant are in his official capacity. The material placed on record unequivocally indicates that the Applicant in discharge of his official duties had issued the said cheques in favour of the traders and workers. By any stretch of imagination it cannot be said that the Applicant intended or abetted or instigated the deceased Ramesh to commit suicide. 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 Applicant under Section 306 of the I.P. Code in our considered view would be an abuse of process of law. Further it is to be noted that Ramesh committed suicide on 23rd December 2015 and the First Information Report was lodged on 7th March 2016. Thus there is inordinate delay in lodging the First Information Report. The record shows that initially on 23rd December 2015 Accidental Death Case was registered with police station and after lapse of period of more than two months First Information Report was filed and therefore we find considerable force in the argument of learned counsel appearing on behalf of the Applicant that possibility of concoction and false implication cannot be ruled out.20. In that view of the matter the Application succeeds. the Criminal Application is allowed. The Criminal Proceeding arising out of F.I.R. bearing C.R. No.35 of 2016 registered with Shindkheda police station Tq-Shindkheda Dist-Dhule dated 7th March 2016 for the offence punishable under Section 306 of the Indian Penal Code is quashed and set aside.21. Rule is made absolute in above terms. The Application is allowed and stands disposed of accordingly.22. We appreciate the sincere efforts taken and able assistance rendered by Mr. Shrimant Munde learned Amicus Curiae during the course of hearing of this Application. We quantify Rs.3500/- (Rupees Three Thousand Five Hundred) towards fees and expenses of learned Amicus Curiae.