CRIMINAL APPLICATION [APL] NO.810 OF 2018

5th April 2019

Petitioner Counsel: Shri Shyam Dewani
Respondent Counsel: Shri M. J. Khan Shri G. G. Saoji

Cases Cited :
Para 9: Mrs. Rupan Deol Bajaj & another Vs. Kanwar Pal Singh Gill & another, 1996 1 RLW (SC) 133
Para 9: Mahesh Choudhary Vs. State of Rajasthan, (2009) 4 SCC 439
Para 9: S. Khushboo Vs. Kanniammal & another, (2010) 5 SCC 600
Para 9: Didigam Bikshapathi & another Vs. State of A.P., (2008) 2 SCC 403
Para 9: Dnyanesh Anandrao Gabhane Vs. State of Maharashtra, 2007 (2) Mh.L.J. (Cri.) 882
Para 9: Chakradhar s/o Gopinath Jadhav & others Vs. The State of Maharashtra, through Police Station & another, (2009) Supreme(Mah) 1434
Para 9: State of Haryana Vs. Bhajan Lal, 1992 Supp(1) SCC 335
Para 15: Sanju alias Sanjay Singh Sengar Vs. State of M.P., (2002) 5 SCC 371
Para 15: S.S. Chheena Vs. Vijay Kumar Mahajan & Another, (2010) 12 SCC 190
Para 15: Arundas & Ors. Vs. State of Maharashtra, 2018 ALL MR (Cri) 3780
Para 15: Gulab Yohan Pandit Vs. The State of Maharashtra & Another, Criminal Writ Petition 164 of 2018
Para 15: Rajesh Vs. State of Haryana, 2019 SCC OnLine SC 44
Para 15: Anagha Hitesh Arya Vs. The State of Maharashtra, 2018 SCC Online Bom 6124
Para 15: Praveen Pradhan Vs. State of Uttaranchal & another, (2012) 9 SCC 734

JUDGEMENT

S. M. Modak, J.

1. Rule. Rule made returnable forthwith. Heard finally by consent.

2. Issue involved in this petition is whether 'continuing prosecution of the applicants for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code (IPC for short)' amounts to abuse of process of law or whether ends of justice requires quashment of the prosecution.

3. All these applicants were named in the F.I.R. No.610/2018 registered at Arvi Police Station, District Wardha as accused persons. Vishal Kailash Motwani committed suicide by hanging during the period 11/07/2018 till 12/07/2018. It was in their godown. Before suicide, he wrote a note blaming all these applicants for his suicide. His father Kailash Pratapchand Motwani filed complaint on 16/07/2018 and accordingly police registered an offence punishable under Section 306 read with Section 34 of IPC. The suicidal incident is having background of family dispute on account of property.

4. Sewakram-applicant No.1 and Manoharlal-applicant No.2 are the real brothers. Satish - applicant No.3 and Girdharapplicant No.4 are the sons of applicant No.1-Sewakram. Whereas Pawankumar-applicant No.5 is the son of applicant No.2- Manoharlal. On the other hand deceased Vishal is the son of first informant Kailash and Kailash's father is one Pratap. Sewakramapplicant No.1, Manoharlal-applicant No.2 and Pratap are real brothers.

5. Deceased Vishal is graduate from Engineering College, Pune. He was desirous of starting furniture manufacturing unit. Applicant-Sewakram and applicant-Manoharlal were doing separate business. So, too first informant Kailash, father of deceased. Deceased was conscious of his rights and he started demanding partition of property. Cousin grandfathers Sewakram and Manoharlal promised to give share in the property.

6. Applicants also harassed the deceased on flimsy grounds just keeping of articles, taunting the deceased frequently. Lastly, assurance to give share in the property was given. After the marriage on 23rd June, 2018 in the family of Manoharlal - applicant No.2, applicants assured to give share in the property. However, applicants changed their words and blatantly refused to give share. It affected mental equilibrium of deceased and he puts an end to his life in between 11/07/2018 to 12/07/2018.

7. Applicants claim that lodging of F.I.R. is abuse of process of Court. Shri Dewani, learned Counsel for the applicants argued vehemently in support of quashing of F.I.R. He also relied upon various judgments. Shri Saoji, learned Counsel for nonapplicant No.2-first informant submitted that this is not a fit case for exercise of inherent powers. He also relied upon various judgments. Shri Khan, learned A.P.P. for non-applicant No.1 also submitted for facing the trial by the applicants before the trial Court.

8. There are two issues involved before us. Whether this is a fit case for exercising inherent powers and whether facts and circumstances prima facie disclosed commission of offence under Section 306 read with Section 34 of the Indian Penal Code by the applicants.

LAW ON THE POINT OF QUASHING :

9. Law on this topic is well settled. It is no more res integra. There are catena of judgments when inherent power is to be used and when it should not be used. The first informant/nonapplicant No.2 relied upon following judgments :
a] Mrs. Rupan Deol Bajaj & another vs. Kanwar Pal Singh Gill & another, reported in 1996 1 RLW (SC) 133.
b] Mahesh Choudhary vs. State of Rajasthan, reported in (2009) 4 SCC 439.
c] S. Khushboo vs. Kanniammal & another, reported in (2010) 5 SCC 600.
d] Didigam Bikshapathi & another vs. State of A.P., reported in (2008) 2 SCC 403.
e] Dnyanesh Anandrao Gabhane vs. State of Maharashtra, reported in 2007 (2) Mh.L.J. (Cri.) 882.
f] Chakradhar s/o Gopinath Jadhav & others vs. The State of Maharashtra, through Police Station & another, reported in (2009) 0 Supreme(Mah) 1434.
On reading them, still we find that ratio laid down in the case of State of Haryana vs. Bhajan Lal , reported in 1992 Supp(1) SCC 335, still holds good. Hon'ble Supreme Court has laid down certain contingencies under which exercise of inherent power is well justified. There is a rider for exercise of such inherent power. It should not be used generally, but it should be used sparingly. Furthermore, while undergoing the exercise, the Court has to take prima facie view without going into controversial facts.

10. Exercise of inherent powers is justified only in three contingencies, one to give effect to an order under this code, second to prevent abuse of process of the Court and t hird to secure ends of justice. It is difficult to lay down all possibilities wherein Court is justified in exercising the power. That is why inherent power is recognized. Hon'ble Supreme Court has cautioned that while exercising such powers, Court is not sitting as a Court of appeal/revision.

DIFFERENCE BETWEEN DISCHARGE & QUASHING :

11. Now the question arises is there difference in between power to discharge prior to framing of charge (as contemplated under Section 228 of the Code of Criminal Procedure in session trial offence) and power to quash the proceeding. If there is no sufficient material to frame charge, Sessions Court is justified in discharging the accused.

12. The standard of inquiry expected at the stage of framing of charge is limited. There also Court has to take prima facie view. Whether one material corroborates with another material is an issue germane at that stage. But, power to quash the proceedings are much wider. The ultimate test is whether continuance of proceeding will amount to misuse of process of the Court and to the benefit of one and to the detriment of another.

13. In a given case, there may be sufficient material to frame charge. But at the same time, it may be a fit case for exercising inherent powers. while doing the exercise whether to use inherent powers or not Court may visualize stage post framing of charge. Court may visualize the consequences if evidence is adduced as it is on the basis of materials collected during investigation. If Court finds that even after recording of evidence, no purpose will be served, Court is justified in exercising inherent powers.

INGREDIENTS OF SECTION 306 OF I.P.C. VIS-A-VIS FACTS OF THE CASE :

14. There are few judgments relied upon by the applicants. They are :
a] Sanju alias Sanjay Singh Sengar vs. State of M.P., reported in (2002) 5 SCC 371.
b] S.S. Chheena vs. Vijay Kumar Mahajan & Another, reported in (2010) 12 SCC 190.
c] Arundas & Ors. vs. State of Maharashtra, reported in 2018 ALL MR (Cri) 3780.
d] Gulab Yohan Pandit vs. The State of Maharashtra & Another in Criminal Writ Petition 164 of 2018 by the Division Bench of this Court at Aurangabad Bench.
e] Rajesh vs. State of Haryana, reported in 2019 SCC OnLine SC 44.
f] Anagha Hitesh Arya vs. The State of Maharashtra, reported in 2018 SCC Online Bom 6124. As against this, learned A.P.P. relied upOn the judgment in case of Praveen Pradhan vs. State of Uttaranchal & another , reported in (2012) 9 SCC 734.

15. On reading these judgments, certain principles emerge. When a person commits suicide, either he is responsible for that incident or someone else is responsible. This someone else will be legally liable if his act falls within the definition of abetment. Abetment is defined under Section 107 of the Indian Penal Code. There are three modes of abetment (i) instigation, (ii) entering into conspiracy and (iii) intentionally aiding. So, it is only when deceased put an end to his life due to acts attributable to the accused, then only accused can be prosecuted.

16. That is why, Hon'ble Supreme Court has explained causal connection between the acts and outcome should be established. So, Court need to see under what circumstances suicide is committed. Court had to see which are the objectionable acts attributed to the accused, which persuaded the deceased to commit suicide. It is not sufficient. Court need to ascertain whether these objectionable acts fall within the definition of abetment. If it does not, then accused will not be responsible even though there is unnatural death of accused.

17. We have not reproduced facts of either of the cases. Ultimately, the conclusion (in either way) is based on facts. On this background, the allegation in F.I.R. and suicidal note needs to be considered. In nutshell, the allegations are as follows :
(a) Applicants Sevakram, Satish and Girdhar started quarreling with first informant due to progress in the business.
(b) Applicant Manohar, his son Pawan are opposing every act of first informant.
(c) Applicants used to sit outside the shop and used to taunt the first informant.
(d) This has adversely affected deceased Vishal.
(e) Deceased got annoyed due to act of throwing away furniture, sofa set kept outside shop of first informant by applicant Pawan taken place two months back. First Informant somehow convinced the deceased.
(f) Deceased got frightened due to threat given two months back by applicant Satish to commit suicide and deceased went into depression,
(g) Change of stand after the marriage by applicant Manohar in denying to give any share in the property.
(h) Applicant-Sewakram and his son Satish denied to give one paisa, if deceased will start furniture business,
(i) They instigated applicant-Pawankumar and he abused first informant and threatened to keep articles at some other place and teach them a lesson with the help of P.A. to the Chief Minister.

CONCLUSION :

18. Admittedly, there is a background of family dispute on account of property. On one hand, the deceased and his family members were demanding share in the property, whereas on the other hand, the applicants under various pretexts avoiding and refusing to give share in the property. As per prosecution story, this episode is going on since last two years. Apart from the deceased, there are other family members including the first informant. First informant can also claim right in the property just like that of the deceased. Just like the deceased, first informant is also said to be aggrieved due to alleged hostile approach of the applicants. So, the issue is, first informant has not taken the extreme step of putting an end to his life.

19. Furthermore, when deceased claim that he is aggrieved and victim, whether putting an end to his life was the only remedy available to him? Answer will be certainly no. Legal remedies of approaching Civil Court was very much available to him. In stead of resorting to that remedy, deceased took extreme step and put an end to his life. If we consider the period of alleged hostile approach, it was for two long years. It is difficult to believe that this hostile approach of the applicants was powerful enough to capture the mind of the deceased and due to which deceased lost his mental equilibrium.

20. There has to be direct connection between acts of the applicants and suicidal act of the accused. The deceased must have been aggrieved due to denial of share by the applicants. But, issue is whether suicidal act can be connected to the hostile approach. We know there are thousands of civil disputes, where there is an hostile approach by one party/wrong doer. But, does it mean that due to that the victim is instigated to put an end to his life. We find that an element of abetment by way of instigation is missing in the present case.

21. It can only be a civil dispute. The first informant had given a colour of criminal prosecution unnecessarily. One can understand the psychology of the deceased in putting a blame on the applicants while writing suicidal note. (we believe that he is a writer though expert opinion is pending.). But, the allegations in the suicidal note are not sufficient to fall under definition of abetment. So, link is not established. We do not find it convenient just to drag the case till conclusion of trial as contended by learned A.P.P. Even, if evidence will be adduced, it is not going to fulfill the test of abetment. So allowing prosecution to continue on such insufficient material, will amount to abuse of process of the Court. That is how, this Court has to intervene and use it's inherent powers. So, we feel that case of quashing is made out.

22. Hence, we allow the petition. We hereby quash F.I.R. bearing No.610/2018 registered under Section 306 read with Section 34 of the Indian Penal Code at Police Station Arvi, District Wardha and consequential investigation against all applicants. We direct concerned Court seized of the matter to pass consequential orders.