Research › Search › Judgment

Bombay High Court · body

2005 DIGILAW 1638 (BOM)

RAOSAHEB S/o NIVRUTTI SHINDE v. STATE

2005-12-02

M.G.GAIKWAD

body2005
Judgment M. G. GAIKWAD, J. ( 1 ) HEARD learned advocate Shri N. G. Kale for the applicants, learned APP Shri N. H. Borade for the respondent No. 1 state and learned advocate Shri V. V. Ingale for the respondent No. 2. ( 2 ) RULE, returnable forthwith. ( 3 ) PETITION is heard finally with the consent of all the parties. ( 4 ) THIS criminal application is moved by the applicants/accused seeking a relief to quash the FIR of crime No. 28/2005 of Tamalwadi Police Station as well as further proceedings arising out of the said crime, on the basis of the said FIR, exercising the jurisdiction under section 482 of the Code of criminal Procedure. During pendency of this application, another criminal application No. 2598/2005 was moved by these applicants for grant of leave to add prayer clause in original application to quash the proceeding of R. C. C. No. 138/2005, as the charge-sheet was filed in the court of JMFC during pendency of main application. ( 5 ) ONE Taramati Ghadge lodged complaint in the court of Judicial magistrate, First Class at Tuljapur, alleging offence punishable under sections 306, 323, 506 read with 34 of I. P. C. In her complaint, she made allegations that her husband Prakash Ghadge had borrowed loan of rs. 5000/- from present applicants and her husband also repaid the said amount alongwith interest. Inspite of this fact, the applicants/accused were demanding the amount from her husband, but because of his poor economical condition, her husband did not take any objection to the accused and used to bear harassment at the hands of the accused. Lastly, on 01-01-2004, he committed suicide by hanging. When police recorded inquest panchanama on his dead-body, suicidal notes were found in the clothes of the deceased, wherein he has mentioned that he is committing suicide because of harassment at the hands of the villagers. After his death, on 26-05-2005, the accused were alleged to have gone to the complainants house and assaulted her and also gave threat to kill her. After receipt of the said complaint, the learned Magistrate forwarded the complaint to the police directing investigation under section 156 (3) of the Code of Criminal procedure. Police registered crime and after completing investigation, submitted the charge-sheet. After receipt of the said complaint, the learned Magistrate forwarded the complaint to the police directing investigation under section 156 (3) of the Code of Criminal procedure. Police registered crime and after completing investigation, submitted the charge-sheet. When that charge-sheet was pending, the accused preferred present application to quash the FIR and further proceedings contending that the suicidal notes do not disclose the names of the accused. So, the said FIR as well as further proceedings arising out of the said FIR needs to be quashed. As stated above, during pendency of this application, report was submitted in the court and it was registered as Regular Criminal Case No. 138/2005. So, applicants sought leave to quash the said proceedings. ( 6 ) LEARNED advocate Shri Kale, appearing on behalf of the applicants pointed out from the so called suicidal notes left behind by the deceased that in the said notes, there are not allegations either referring the names of the accused as the persons from whom deceased had borrowed the amount, nor there are allegations that at any point of time before his death, the accused had made demand of any amount or gave threat to him. So, according to Shri Kale, there is no nexus of the suicidal death and any act of the accused. So, the FIR alleging offence punishable under section 306 of IPC needs to be quashed. Learned advocate Shri Kale, in support of his arguments, placed reliance on the decision of Apex Court in the case of Nataidatta v. State of West Bengal. On the other hand, learned advocate Shri Ingale, appearing for the original complainant/present respondent No. 2 filed affidavit-in-reply and also made submission that after the death of the deceased, present applicants approached the complainant and made demand of an amount of Rs. 20,000/- and also gave threat to the complainant to kill her. So, this act shows that they had advanced loan to the deceased and deceased committed suicide because of harassment from them. So, it is not a fit case to quash the FIR or further proceedings arising out of it. ( 7 ) THE facts in the case of Netaidatta before Apex Court were that an offence punishable under section 306 of IPC was registered on the basis of suicidal notes left behind by the victim. In that case, there was reference of name of the appellant in two places. ( 7 ) THE facts in the case of Netaidatta before Apex Court were that an offence punishable under section 306 of IPC was registered on the basis of suicidal notes left behind by the victim. In that case, there was reference of name of the appellant in two places. However, there was no reference of any act or incidence whereby the appellant was alleged to have committed any willful act or omission or intentionally aided or instigated the deceased to commit suicide. The prosecution was initiated against the appellant alleging harassment. The appellant approached the High Court for a relief to quash the FIR on the ground that the case was registered against him without there being any foundation. However, the High Court held that the FIR disclosed the element of cognisable offence. So, the appellant approached the Apex Court. Their Lordships of the Apex Court held that there was no material to show any part played by the accused/ appellant in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased in that case. As there were no allegations in the complaint that the accused/appellant was harassing the deceased and the suicidal notes were also not making any reference of any such allegations, the Apex Court held that it was a fit case where the extraordinary power under section 482 of the Code of Criminal Procedure is to be invoked and accordingly, the FIR as well as criminal proceedings initiated against the appellant have been quashed. The facts in the present case are similar. In the suicidal notes, name of none of the applicants is referred making allegation that the deceased had borrowed any amount from them or alleging any harassment at the hands of the present applicants. The suicidal notes in the present case left behind by the deceased are vague stating that the deceased had borrowed loan from many villagers and he claims to have repaid the amounts. He has not made any allegations in the notes against anyone that because of harassment at their hands, he has committed suicide. On the contrary, he advised his relatives to lodge complaints in case any one approached them and makes demand of any loan amount. He has not made any allegations in the notes against anyone that because of harassment at their hands, he has committed suicide. On the contrary, he advised his relatives to lodge complaints in case any one approached them and makes demand of any loan amount. So, the allegations made in the suicidal notes do not make reference that he has committed suicide because of any act of any villager, nor these suicidal notes make reference of names of any one of the present applicants. So, the complaint lodged by the widow of the deceased after about one and half year of his death alleging the offence of abatement to suicide is nothing but an abuse of process of law. In the complaint, she alleged that the accused approached her on 26-05-2005 and made demand of Rs. 20,000/- alleging that her husband had borrowed loan from him and gave threat and abused her. No doubt, in the complaint, she alleged that her husband had borrowed Rs. 5000/- and her husband repaid the said amount with interest. She has not alleged any act of harassment at the hands of accused to her husband. So this complaint lodged in the court does not disclose any act at the hands of the accused because of which deceased had committed suicide. ( 8 ) LEARNED Magistrate, after receipt of the complaint, directed investigation under section 156 (3) of the Code of Criminal Procedure. During the investigation, statement of complainant Taramati was recorded. In the said statement also, she has not made any disclosure that her husband was being any way harassed by the present accused/applicants. Statements of other relatives were recorded during investigation. All of them consistently alleged that till 26-05-2005, none of the villagers approached them and demanded any amount alleging that deceased had borrowed the loam from them. Only allegations made in their statements are that present accused on 26-05-2005 approached complainant Taramati and demanded some amount from her alleging that her husband had borrowed loan and gave threat to her. None of them are alleging that before death of the deceased, deceased disclosed them that he had borrowed loan from these applicants and because of non-payment of that loan amount, deceased was being harassed by the applicants. None of them are alleging that before death of the deceased, deceased disclosed them that he had borrowed loan from these applicants and because of non-payment of that loan amount, deceased was being harassed by the applicants. There are no allegations at all in the complaint or in their statements that the deceased was being harassed on account of non-payment of the loan amounts. Suicidal notes left behind by the deceased also do not make reference of names of these applicants or any act or incidence whereby the present applicants alleged to have committed any willful act or omission or intentionally aided or instigated the deceased to commit suicide. So, complaint lodged in the court after one and half year of the death of the deceased is nothing but an abuse of process of law. For registration of the said case, there was no foundation. So, as held by the Apex Court in the above referred case, this is a fit case where an extraordinary powers under section 482 of the Code of Criminal Procedure needs to be invoked to quash the proceedings initiated against these applicants. ( 9 ) IN the result, both criminal applications are allowed. The FIR of CR no. 28/2005 of Tamalwadi Police Station registered by the police against these applicants as well as further proceedings arising out of the said FIR, including the proceedings of Regular Criminal Case No. 138/2005 arising out of the said FIR are hereby quashed and set aside. Rule is made absolute in above terms. Applications allowed.