Vinayak Deorao Bhagat v. State Of Maharashtra

A.S. Chandurkar J.:— The present application filed under Section 482 of the Code of Criminal Procedure, 1973 seeks quashing of first information report in Crime No. 35 of 2015 that has been lodged against the applicant under Section 306 of the Penal Code, 1860 (for short, the Penal Code).

2. It is the case of the non applicant no. 2-Narayan that his son Sanjay was married to the non-applicant no. 3 prior to about 17 years. His son was employed as a Teacher in a school and he was acquainted with the applicant. Prior to about 10 years his son Sanjay had come to reside near the house of non applicant no. 2 after which even the applicant started residing near their house. It is the further case that the applicant used to call the non-applicant no. 3-wife of Sanjay on her mobile phone and used to trouble her. Though Sanjay had told the applicant not to trouble his wife, the telephone calls were not discontinued. On 09.02.2015 there was a heated argument between the applicant and Sanjay. Sanjay had told the applicant that he was always troubling his wife by making calls on her mobile phone. On 12.02.2015 when the wife of the applicant went to make enquiries about Sanjay as he was not seen, it was noticed that Sanjay had committed suicide. During the postmortem a chit was found in his pocket in which it was stated that the applicant had spoiled the family life of Sanjay and hence he should not be forgiven. The non-applicant no. 2 lodged his report on 14.02.2015 stating therein that the applicant was responsible for inducing his son to commit suicide. On that basis the offence punishable under Section 306 of the Penal Code came to be registered against the applicant vide Crime No. 35 of 2015.

3. Shri S. D. Chande, learned counsel for the applicant submitted that the report lodged by the non applicant no. 2 did not even primafacie make out any offence committed by the applicant that would be punishable under Section 306 of the Penal Code. It was submitted that the ingredients of Section 306 of the Penal Code were not made out in the report lodged by the non applicant no. 2. Merely on the allegations that the applicant used to make phone calls to the wife of said Sanjay, the report alleging commission of offence punishable under Section 306 of the Penal Code had been lodged. There was neither any abetement nor any instigation alleged to have been given by the applicant on the basis of which it could be said that said Sanjay committed suicide. According to the learned counsel, even if the statements as made in the first information report were taken at their face value, no offence under Section 306 of the Penal Code was made out. In support of his submissions the learned counsel for the applicant placed reliance on the judgment of the Division Bench in Binod Ratan Sarkar v. State of Maharashtra, 2013 (3) Maharashtra Law Journal (Cri.) 418. It was therefore submitted that as no offence had been made out under Section 306 of the Penal Code the proceedings deserve to be quashed.

4. Mrs. M. H. Deshmukh, the learned Additional Public Prosecutor for the non-applicant no. 1 and Shri R. J. Shinde, the learned counsel for the non-applicant no. 2 opposed aforesaid submissions. It was submitted that on a plain reading of the report lodged by non-applicant no. 2 it was clear that an offence under Section 306 of the Penal Code was made out. It was only on account of the harassment on the part of the applicant in repeatedly calling the wife of the deceased on her mobile phone that led Sanjay to commit suicide. It was submitted that even on 09.02.2015 there were heated arguments between the applicant and Sanjay after which Sanjay committed suicide. The chit found in the pocket of Sanjay also indicated that it was the applicant who was responsible in leading Sanjay to commit suicide.

5. Shri Mahesh Rai, the learned counsel for the non-applicant no. 3 who is the wife of deceased Sanjay however denied the statements made in the first information report. He submitted that the applicant had never made any calls to the non-applicant no. 3 on her mobile phone. On the contrary, the non-applicant no. 3 was having good relations with the wife of the applicant as both of them belonged to the same village.

6. Having considered the respective submissions and having gone through the material available on record, we are of the view that the proceedings initiated pursuant to the report lodged by non-applicant no. 2 deserve to be quashed. The legal position with regard to the essential ingredients necessary to attract the provisions of Section 306 of the Penal Code are now settled. In Seema Ajay Bhoosreddy v. State of Maharashtra, 2012 (2) Maharashtra Law Journal (Cri.) 459 decided by one of us (B. R. Gavai J.) the decisions of the Hon'ble Supreme Court in Madan Mohan Singh v. State of Gujrat, (2010) 8 SCC 628 and S. S. Chheema v. Vijay Kumar Mahajan, 2010 ALL MR (Cri.) 3298 were considered. It was held in Seema Ajay Bhoosreddy (supra) in para 18:

“18. It can thus, be clearly seen that for proceeding further with the trial against the accused for an offence punishable under Section 306, 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. As held by the Apex Court, an abetment involves mental process of instigating the person or intentionally aiding the person for doing of a thing. Without a positive act on the part of the accused in aiding or instigating or abetting the deceased to commit suicide, the said person cannot be compelled to face a trial. Unless there is clear mens rea to commit the offence or an 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 cannot be permitted.”

7. Similarly in Binod s/o Ratan Sarkar (supra) the Division Bench reiterated the aforesaid legal position.

8. In the light of aforesaid legal position if the material on record is considered on its face value it can be seen that the non-applicant no. 2 who is the first informant has referred to phone calls being made by the applicant to the wife of Sanjay. There is a reference to some heated arguments between the applicant and Sanjay on 09.02.2015. Thereafter on 12.02.2015 Sanjay committed suicide and in a chit found in his pocket it is stated that the applicant was responsible for spoiling his life.

9. The aforesaid indicates that there is no material what so ever even of a prima facie nature to establish that the applicant had either an intention to aid or instigate or abet Sanjay to commit suicide. There is no reference to any active or direct act on the part of the applicant which led said Sanjay to commit suicide. Similarly there is neither any instigation nor any intentional act done which compelled the son of non-applicant no. 2 to commit suicide. Even the chit found in the pocket of the deceased does not contain any such material to indicate any instigation or abetement on the part of the applicant herein that could be treated as having led Sanjay to commit suicide.

10. Thus, the basic and vital ingredients to enable the prosecution to proceed with the trial for an offence punishable under Section 306 of the Penal Code are conspicuously missing. In absence of this basic material, the continuation of the proceedings against the applicant would amount to permitting an unwanted prosecution. The present is therefore a fit case to exercise powers under Section 482 of the Code of Criminal Procedure, 1973 to quash the proceedings. There is no reason what so ever to compel the applicant to face the trial.

11. In view of aforesaid, the criminal application is allowed in terms of prayer clause (i).