The offence which has been sought to be charged against the
applicant is the one which is punishable under Section 306 of the Indian
Penal Code. This offence is of abetment to commit suicide. For abeting a
thing, as required under Section 107 of the Indian Penal Code, there has
to be instigation given by one person to the another for doing the thing
or engagement with one or more other persons in any conspiracy for
doing of an illegal thing or illegal omission or intentional aiding by any
act or illegal omission or willfully misrepresenting or concealing the
material fact which is bound to be disclosed. Having regard to the facts
of this case, we shall be concerned in this case only with those aspects of
abetment of a thing which are in the nature of instigation or intentional
aiding. In the case of Sanju alias Sanjay Singh Sengar vs. State of
M.P., reported in (2002) 5 SCC 371, referred to me by the learned
counsel for the petitioner, the Hon'ble Apex Court has explained the
requirement of offence of abetment to commit suicide from this view
point. The Hon'ble Supreme Court has held that for an instigation to be
completed, as contemplated under the law, there must be some
incitement or urging to do some drastic or inadvisable action or in other
words presence of mens rea is the necessary ingredient of the instigation.
Relevant observations of the Hon'ble Apex Court as they appear in
paragraph 12 are reproduced as under :
“Even if we accept the prosecution story that
the appellant did tell 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 inadvisable action or to stimulate or
incite. Presence of mens rea, therefore, is the necessary
concomitant of instigation.”
7. Bearing in mind the above referred principles of law that we
have to consider if there are sufficient grounds for proceeding against the
accused or not, which is the basic requirement of Section 227 of the Code
of Criminal Procedure. Sufficiency of the material for proceeding further
against the accused would depend upon what is disclosed by the
witnesses, when their statements are accepted as they are. If it is found
that if the statements of the witnesses taken at their face value, do not
disclose any material sufficient to fulfill the necessary ingredients of the
offence of abetment to commit suicide, it would have to be held that
there is no sufficient ground for proceeding further against the accused.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.146 OF 2015
Dr. Dashrath Bhande,
V
State of Maharashtra,
CORAM : S.B. SHUKRE, J.
DATE : 19thSEPTEMBER, 2016.
Citation: 2016 ALLMR(CRI)4394
1. Rule. Rule made returnable forthwith. Heard finally
by consent of learned counsel appearing for the parties.
2. By this writ petition, the petitioner has challenged the
legality and correctness of the order dated 8th January, 2015 passed by
the learned Adhoc Additional District Judge, Achalpur, in Sessions Trial
No.3/2011, thereby rejecting his application for his discharge from the
case. On the basis of the complaint lodged by Anandwardhan
Vishwanath Adikne on 28th January, 2010, Police registered an offence
punishable under Section 306 of the Indian Penal Code and 3(2)(v) of
the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 against this petitioner and one Subhash Dayaram Shriwas, the
HeadMaster of the School run by the Society of which the applicant is
the President. The HeadMaster is the accused No.1 and this applicant is
the accused No.2. The report was investigated and after collecting the
evidence against both these accused, Police filed the chargesheet. So far
as present applicant is concerned, the chargesheet implicates him only
for an offence punishable under Section 306 of the Indian Penal Code.
This is also clear from the impugned order. However, the charge is yet to
be framed. Before framing of the charge, the applicant moved an
application (Exh.12) seeking his discharge under Section 227 of the
Code of Criminal Procedure from the case.
3. After hearing learned counsel for the petitioner and learned
Additional Public Prosecutor for the respondent/State and considering
the material available on record the learned Adhoc Additional Sessions
Judge, Achalpur rejected the application by his order passed on
8
th January, 2015. Not being satisfied with the same, the petitioner is
before this Court in this writ petition.
4. Shri P.V. Navlani, learned counsel for the petitioner submits
that even if the prosecution evidence is accepted at its face value, still it
does not disclose any commission of offence and that whatever it shows
is not sufficient to proceed against the petitioner. In support of his
argument, he has taken me through the statements of all the witnesses
recorded by the Police.
5. Learned Additional Public Prosecutor for the respondent/
State opposing the petition submits that the learned Adhoc Additional
Sessions Judge has rightly rejected the application as this is not the stage
to appreciate the evidence available on record and that if the statements
of all the witnesses are taken together and read as they are, they would
indicate that there are sufficient grounds for proceeding against the
present petitioner.
6. The offence which has been sought to be charged against the
applicant is the one which is punishable under Section 306 of the Indian
Penal Code. This offence is of abetment to commit suicide. For abeting a
thing, as required under Section 107 of the Indian Penal Code, there has
to be instigation given by one person to the another for doing the thing
or engagement with one or more other persons in any conspiracy for
doing of an illegal thing or illegal omission or intentional aiding by any
act or illegal omission or willfully misrepresenting or concealing the
material fact which is bound to be disclosed. Having regard to the facts
of this case, we shall be concerned in this case only with those aspects of
abetment of a thing which are in the nature of instigation or intentional
aiding. In the case of Sanju alias Sanjay Singh Sengar vs. State of
M.P., reported in (2002) 5 SCC 371, referred to me by the learned
counsel for the petitioner, the Hon'ble Apex Court has explained the
requirement of offence of abetment to commit suicide from this view
point. The Hon'ble Supreme Court has held that for an instigation to be
completed, as contemplated under the law, there must be some
incitement or urging to do some drastic or inadvisable action or in other
words presence of mens rea is the necessary ingredient of the instigation.
Relevant observations of the Hon'ble Apex Court as they appear in
paragraph 12 are reproduced as under :
“Even if we accept the prosecution story that
the appellant did tell 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 inadvisable action or to stimulate or
incite. Presence of mens rea, therefore, is the necessary
concomitant of instigation.”
7. Bearing in mind the above referred principles of law that we
have to consider if there are sufficient grounds for proceeding against the
accused or not, which is the basic requirement of Section 227 of the Code
of Criminal Procedure. Sufficiency of the material for proceeding further
against the accused would depend upon what is disclosed by the
witnesses, when their statements are accepted as they are. If it is found
that if the statements of the witnesses taken at their face value, do not
disclose any material sufficient to fulfill the necessary ingredients of the
offence of abetment to commit suicide, it would have to be held that
there is no sufficient ground for proceeding further against the accused.
8. In the instant case, the F.I.R. dated 28.1.2010, when
considered without anything adding thereto or substracting there from,
shows that all the allegations have been directed against the accused
No.1 the HeadMaster of the school run by the Society of the President.
So far as this applicant is concerned, it is only stated that the HeadMaster
used to tell the deceased that he was harassing the deceased at
the instance of the President. It is also stated that the deceased Anil
committed suicide because he apprehended that he would be terminated
from service by the HeadMaster on the say of the petitioner.
Interestingly on 27.1.2010, when suicide was committed, the deceased
was very much in service and that admittedly on that day, he was also
granted one day's leave by the HeadMaster. This would only show that
there could not be any basis in the apprehension allegedly nurtured by
the deceased about his being terminated from service or otherwise, his
leave application would not have been granted.
9. As against these allegations made in the F.I.R., there is a set
of witnesses consisting of three persons, namely, Anil Ingle, Uttam Raut
and Ravindra Nagdive, all of whom are stating that they were told by the
deceased at about 2.00 p.m of 27.1.2010 that he was removed from
service on the say of the President. The evidence collected by the
prosecution and the admissions given by the brother as well as sister of
the deceased, however, show the position to be otherwise. It shows that
the deceased was very much in service and that is also the case of the
prosecution.
10. In these circumstances, one has to see if there were any other
circumstances which, according to the prosecution, made the
apprehension of the deceased that he would be terminated from service
by the petitioner as reasonable and that this apprehension created a
situation of desperation for him or not. On going through the statements
of all other witnesses with the help of learned counsel for the petitioner
as well as learned A.P.P. for the respondent/State, I could find no such
material which would show that basically there was an apprehension and
even if it was there it led to such a situation as to result in the deceased
being in a state of disturbed mind so much so that he felt that there was
no other option left to him than to commit suicide. I must say, if a
person only says that the deceased be removed from service and takes no
step towards execution of the threat, the apprehension would not be
reasonable and even if it is presumed to be so, just for the sake of
argument, it would not by itself be amounting to instigation to commit
suicide, as the person threatened has several options available in law to
remedy his grievance and so there would be no question of such
apprehension driving that person to a point of no return or extreme
desperation.
11. There are some witnesses like Samadhan Nagdive, Raju
Wankhade and Dnyaneshwar Kirde, who say that they heard on
25.1.2010 this petitioner say that the deceased ought to have been
removed from service by the accused No.1. But, as stated earlier, merely
making some utterances in this fashion would not be enough and there
must be available on record some circumstances which would make one
prima facie believe that the petitioner meant by what he said and his
such words created a situation of desperation for the deceased leaving
him no other option than to commit suicide. If somebody says that a
person should be removed from service, it is not that it marks the end of
everything for the person against whom those words are used. Other
remedies are available to him and one of such remedies could have been
in the nature of filing a complaint before the appropriate authority.
Admittedly, this has not been done by the deceased in this case. In his
leave application filed on 27.1.2010 also the deceased has not said
anything about the alleged threats issued to him. He also did not state
any reason in the application filed by him on 27.1.2010 for seeking leave
except for one that he was not keeping good health. But, he did not
explain the circumstances which led to his illhealth or the nature of his
not keeping good health.
12. In these facts and circumstances of the case, I find that there
is nothing available on record from which one could say that the essential
ingredient of ‘instigation’ is fulfilled. There is also no material on record
showing that this petitioner intentionally aided the deceased in
committing suicide rather now it appears that the prosecution case is also
not based on the theory of intentional aiding. Therefore, it has to be said
that there are no sufficient grounds available in this case for proceeding
further against this applicant. The petition deserves to be discharged and
the impugned order needs to be quashed and set aside.
13. The writ petition is allowed.
14. The impugned order dated 8th January, 2015, passed by the
Adhoc Additional Sessions Judge, Achalpur, is hereby quashed and set
aside.
15. The application vide Exh.12 is granted.
16. The petitioner is discharged.
17. Rule is made absolute in above terms.
Print Page
applicant is the one which is punishable under Section 306 of the Indian
Penal Code. This offence is of abetment to commit suicide. For abeting a
thing, as required under Section 107 of the Indian Penal Code, there has
to be instigation given by one person to the another for doing the thing
or engagement with one or more other persons in any conspiracy for
doing of an illegal thing or illegal omission or intentional aiding by any
act or illegal omission or willfully misrepresenting or concealing the
material fact which is bound to be disclosed. Having regard to the facts
of this case, we shall be concerned in this case only with those aspects of
abetment of a thing which are in the nature of instigation or intentional
aiding. In the case of Sanju alias Sanjay Singh Sengar vs. State of
M.P., reported in (2002) 5 SCC 371, referred to me by the learned
counsel for the petitioner, the Hon'ble Apex Court has explained the
requirement of offence of abetment to commit suicide from this view
point. The Hon'ble Supreme Court has held that for an instigation to be
completed, as contemplated under the law, there must be some
incitement or urging to do some drastic or inadvisable action or in other
words presence of mens rea is the necessary ingredient of the instigation.
Relevant observations of the Hon'ble Apex Court as they appear in
paragraph 12 are reproduced as under :
“Even if we accept the prosecution story that
the appellant did tell 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 inadvisable action or to stimulate or
incite. Presence of mens rea, therefore, is the necessary
concomitant of instigation.”
7. Bearing in mind the above referred principles of law that we
have to consider if there are sufficient grounds for proceeding against the
accused or not, which is the basic requirement of Section 227 of the Code
of Criminal Procedure. Sufficiency of the material for proceeding further
against the accused would depend upon what is disclosed by the
witnesses, when their statements are accepted as they are. If it is found
that if the statements of the witnesses taken at their face value, do not
disclose any material sufficient to fulfill the necessary ingredients of the
offence of abetment to commit suicide, it would have to be held that
there is no sufficient ground for proceeding further against the accused.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.146 OF 2015
Dr. Dashrath Bhande,
V
State of Maharashtra,
CORAM : S.B. SHUKRE, J.
DATE : 19thSEPTEMBER, 2016.
Citation: 2016 ALLMR(CRI)4394
1. Rule. Rule made returnable forthwith. Heard finally
by consent of learned counsel appearing for the parties.
2. By this writ petition, the petitioner has challenged the
legality and correctness of the order dated 8th January, 2015 passed by
the learned Adhoc Additional District Judge, Achalpur, in Sessions Trial
No.3/2011, thereby rejecting his application for his discharge from the
case. On the basis of the complaint lodged by Anandwardhan
Vishwanath Adikne on 28th January, 2010, Police registered an offence
punishable under Section 306 of the Indian Penal Code and 3(2)(v) of
the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 against this petitioner and one Subhash Dayaram Shriwas, the
HeadMaster of the School run by the Society of which the applicant is
the President. The HeadMaster is the accused No.1 and this applicant is
the accused No.2. The report was investigated and after collecting the
evidence against both these accused, Police filed the chargesheet. So far
as present applicant is concerned, the chargesheet implicates him only
for an offence punishable under Section 306 of the Indian Penal Code.
This is also clear from the impugned order. However, the charge is yet to
be framed. Before framing of the charge, the applicant moved an
application (Exh.12) seeking his discharge under Section 227 of the
Code of Criminal Procedure from the case.
3. After hearing learned counsel for the petitioner and learned
Additional Public Prosecutor for the respondent/State and considering
the material available on record the learned Adhoc Additional Sessions
Judge, Achalpur rejected the application by his order passed on
8
th January, 2015. Not being satisfied with the same, the petitioner is
before this Court in this writ petition.
4. Shri P.V. Navlani, learned counsel for the petitioner submits
that even if the prosecution evidence is accepted at its face value, still it
does not disclose any commission of offence and that whatever it shows
is not sufficient to proceed against the petitioner. In support of his
argument, he has taken me through the statements of all the witnesses
recorded by the Police.
5. Learned Additional Public Prosecutor for the respondent/
State opposing the petition submits that the learned Adhoc Additional
Sessions Judge has rightly rejected the application as this is not the stage
to appreciate the evidence available on record and that if the statements
of all the witnesses are taken together and read as they are, they would
indicate that there are sufficient grounds for proceeding against the
present petitioner.
6. The offence which has been sought to be charged against the
applicant is the one which is punishable under Section 306 of the Indian
Penal Code. This offence is of abetment to commit suicide. For abeting a
thing, as required under Section 107 of the Indian Penal Code, there has
to be instigation given by one person to the another for doing the thing
or engagement with one or more other persons in any conspiracy for
doing of an illegal thing or illegal omission or intentional aiding by any
act or illegal omission or willfully misrepresenting or concealing the
material fact which is bound to be disclosed. Having regard to the facts
of this case, we shall be concerned in this case only with those aspects of
abetment of a thing which are in the nature of instigation or intentional
aiding. In the case of Sanju alias Sanjay Singh Sengar vs. State of
M.P., reported in (2002) 5 SCC 371, referred to me by the learned
counsel for the petitioner, the Hon'ble Apex Court has explained the
requirement of offence of abetment to commit suicide from this view
point. The Hon'ble Supreme Court has held that for an instigation to be
completed, as contemplated under the law, there must be some
incitement or urging to do some drastic or inadvisable action or in other
words presence of mens rea is the necessary ingredient of the instigation.
Relevant observations of the Hon'ble Apex Court as they appear in
paragraph 12 are reproduced as under :
“Even if we accept the prosecution story that
the appellant did tell 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 inadvisable action or to stimulate or
incite. Presence of mens rea, therefore, is the necessary
concomitant of instigation.”
7. Bearing in mind the above referred principles of law that we
have to consider if there are sufficient grounds for proceeding against the
accused or not, which is the basic requirement of Section 227 of the Code
of Criminal Procedure. Sufficiency of the material for proceeding further
against the accused would depend upon what is disclosed by the
witnesses, when their statements are accepted as they are. If it is found
that if the statements of the witnesses taken at their face value, do not
disclose any material sufficient to fulfill the necessary ingredients of the
offence of abetment to commit suicide, it would have to be held that
there is no sufficient ground for proceeding further against the accused.
8. In the instant case, the F.I.R. dated 28.1.2010, when
considered without anything adding thereto or substracting there from,
shows that all the allegations have been directed against the accused
No.1 the HeadMaster of the school run by the Society of the President.
So far as this applicant is concerned, it is only stated that the HeadMaster
used to tell the deceased that he was harassing the deceased at
the instance of the President. It is also stated that the deceased Anil
committed suicide because he apprehended that he would be terminated
from service by the HeadMaster on the say of the petitioner.
Interestingly on 27.1.2010, when suicide was committed, the deceased
was very much in service and that admittedly on that day, he was also
granted one day's leave by the HeadMaster. This would only show that
there could not be any basis in the apprehension allegedly nurtured by
the deceased about his being terminated from service or otherwise, his
leave application would not have been granted.
9. As against these allegations made in the F.I.R., there is a set
of witnesses consisting of three persons, namely, Anil Ingle, Uttam Raut
and Ravindra Nagdive, all of whom are stating that they were told by the
deceased at about 2.00 p.m of 27.1.2010 that he was removed from
service on the say of the President. The evidence collected by the
prosecution and the admissions given by the brother as well as sister of
the deceased, however, show the position to be otherwise. It shows that
the deceased was very much in service and that is also the case of the
prosecution.
10. In these circumstances, one has to see if there were any other
circumstances which, according to the prosecution, made the
apprehension of the deceased that he would be terminated from service
by the petitioner as reasonable and that this apprehension created a
situation of desperation for him or not. On going through the statements
of all other witnesses with the help of learned counsel for the petitioner
as well as learned A.P.P. for the respondent/State, I could find no such
material which would show that basically there was an apprehension and
even if it was there it led to such a situation as to result in the deceased
being in a state of disturbed mind so much so that he felt that there was
no other option left to him than to commit suicide. I must say, if a
person only says that the deceased be removed from service and takes no
step towards execution of the threat, the apprehension would not be
reasonable and even if it is presumed to be so, just for the sake of
argument, it would not by itself be amounting to instigation to commit
suicide, as the person threatened has several options available in law to
remedy his grievance and so there would be no question of such
apprehension driving that person to a point of no return or extreme
desperation.
11. There are some witnesses like Samadhan Nagdive, Raju
Wankhade and Dnyaneshwar Kirde, who say that they heard on
25.1.2010 this petitioner say that the deceased ought to have been
removed from service by the accused No.1. But, as stated earlier, merely
making some utterances in this fashion would not be enough and there
must be available on record some circumstances which would make one
prima facie believe that the petitioner meant by what he said and his
such words created a situation of desperation for the deceased leaving
him no other option than to commit suicide. If somebody says that a
person should be removed from service, it is not that it marks the end of
everything for the person against whom those words are used. Other
remedies are available to him and one of such remedies could have been
in the nature of filing a complaint before the appropriate authority.
Admittedly, this has not been done by the deceased in this case. In his
leave application filed on 27.1.2010 also the deceased has not said
anything about the alleged threats issued to him. He also did not state
any reason in the application filed by him on 27.1.2010 for seeking leave
except for one that he was not keeping good health. But, he did not
explain the circumstances which led to his illhealth or the nature of his
not keeping good health.
12. In these facts and circumstances of the case, I find that there
is nothing available on record from which one could say that the essential
ingredient of ‘instigation’ is fulfilled. There is also no material on record
showing that this petitioner intentionally aided the deceased in
committing suicide rather now it appears that the prosecution case is also
not based on the theory of intentional aiding. Therefore, it has to be said
that there are no sufficient grounds available in this case for proceeding
further against this applicant. The petition deserves to be discharged and
the impugned order needs to be quashed and set aside.
13. The writ petition is allowed.
14. The impugned order dated 8th January, 2015, passed by the
Adhoc Additional Sessions Judge, Achalpur, is hereby quashed and set
aside.
15. The application vide Exh.12 is granted.
16. The petitioner is discharged.
17. Rule is made absolute in above terms.
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