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2007 DIGILAW 1515 (BOM)

Anand s/o Kishor Vaidya v. State of Maharashtra

2007-10-17

C.L.PANGARKAR

body2007
ORAL JUDGMENT. 1. Rule. Returnable forthwith. Heard Finally with consent of parties. 2. This is an application under Section 482 of the Code of Criminal Procedure Code seeking to quash the charge-sheet filed in Criminal Case No.195 of 2006 under Section 306 of the Indian Penal Code. 3. The facts giving rise to this application are as under One Gopal Damlodhar Joshi was educated up to B.A. and was working as a Clerk in the Vikas Mahavidyalaya Sanstha. He was appointed by the present applicant Kishor Vaidya as such in the said Institute in the year 1992. However, since 2 to 4 months prior to the death of Gopal, he was not being allowed by the present applicant to resume his duty. He was demanding Rs.3,00,000/- from Gopal. He was also giving threats that if Rs.3,00,000/- are not paid to him, he would remove Gopal from service. As a result of this, it is alleged that Gopal was not going to the school. He had lost his mental balance. Some of the relatives of Gopal also went to applicant. The present applicant Kishor Vaidya was requested to deduct the amount from Gopal's salary, however, he refused to do so. Gopal, therefore, always used to complain that he would be removed from the service and as a result of this he used to be restless. On 22/4/2006 he hanged himself in his own house and committed suicide. A suicide note was found in which it is alleged that blame is squarely put at the door of the present applicant. 4. Upon this, the police carried out the investigation and they have filed charge-sheet against the present applicants. The applicant seeks to quash this charge-sheet filed under Section 306 of the Indian Penal Code. 5. I have heard Mr.Anil Mardikar, learned counsel for the applicant and Mr.A.S.Sonare, Additional Public Prosecutor for the State. 6. The learned Additional Public Prosecutor for the State submitted at the very outset that this court should not entertain an application under Section 482 of Cr.P. Code since remedy of filing discharge application is available to him. Shri Mardikar, however, submitted that even though a remedy of discharge may be available to the applicant that does not prevent him from approaching this court under Section 482 of Cr.P.C. for quashing the charge-sheet itself. Shri Mardikar, however, submitted that even though a remedy of discharge may be available to the applicant that does not prevent him from approaching this court under Section 482 of Cr.P.C. for quashing the charge-sheet itself. He submitted that if there is no case, there is no reason why the applicant should be put to rigor of facing a trial. He relied on a decisions of the Supreme court reported in (1998)7 SCC 698 (Ashok Chaturvedi and ors. vs. Shitul H. Chanchani & Anr.) and AIR 1998 SC 128 (M/s Pepsi Foods Ltd and anr. vs. Special Judicial Magistrate and ors.). The Supreme Court has observed in the above decisions that merely because the accused has a right to plead at the time of framing charges that there is no material for framing charges, he is not debarred from invoking the inherent jurisdiction of the court at the earliest point of time when the Magistrate has taken cognizance. It is, therefore, clear that availability of the remedy for discharge does not prevent a party from approaching the court under Section 482 of the Code of Criminal Procedure. 7. As stated earlier, the charge sheet has been filed against the accused since one Gopal Joshi – an employee working in the school committed suicide. The applicant is a Secretary of the Society. The Supreme Court in Bhajanlal's case, reported in AIR 1992 SC 604 (State of Harayana and others n..vs.. Ch.Bhajan Lal and others) has laid down parameters for quashing the F.I.R. or the proceedings. In this case, the charge-sheet is already filed. In Bhajanlal's case the Supreme Court has laid down the following parameters. In following categories of cases, the High Court may in exercise of Powers under Art.226 or under S.482 of Cr.P.C. may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However, power should be exercised sparingly and that too in the rarest of rare cases. (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. However, power should be exercised sparingly and that too in the rarest of rare cases. (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code. 3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under SD.155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Where allegations in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases enumerated above, calling for exercise of extraordinary powers or inherent powers quashing of FIR was not justified. If the case does not fall in any of the categories, as is mentioned in the above decision, there is no question of quashing the proceedings. If the case does not fall in any of the categories, as is mentioned in the above decision, there is no question of quashing the proceedings. To my mind, the case does not fall under any of the categories as laid down by the Supreme Court. The F.I.R. in this case does disclose the ingredients of offence and the investigation also discloses so. The F.I.R. as well as the statements go to show that the deceased was continuously being given threats that he would be removed from the service unless Rs.3,00,000/- are paid. It is also mentioned in the said statement as well as the F.I.R. that due to these threats the deceased was in a disturbed state of mind. It is further alleged that the relatives had even made a request to the applicant to deduct the amount from salary and not to remove him from the service. One of the statements even shows that the deceased was being compelled to transfer his land in the name of the school. This investigation and the F.I.R. prima facie make out the case of there being a demand and the harassment to the deceased since he was not allowed to resume his duty and threats were being given of removal from service. It was contended that the investigation discloses that suicide note allegedly seized by the police is not written by the deceased. There is a report to that effect along with charge-sheet. The suicide note may not have been written by the deceased. That, however, is one of the modes to prove or disprove the reasons for suicide. Even if that is kept aside, the prosecution cannot be prevented from proving its case by other evidence. This court while dealing with the application under Section 482 of the Code of Criminal Procedure cannot scan the evidence and weigh it. The above evidence collected by investigating Agency shows that the case does not fall in any of the categories as laid down in Bhajanlal's case. 8. Shri Mardikar, learned counsel, submitted that the evidence collected does not go to show any incitement or urging to take some drastic or inadvisable action as is held in (2002)5 SCC 371 (Sanju Sengar ..vs.. State of M.P.). The decision was rendered by the Supreme court on merits. 8. Shri Mardikar, learned counsel, submitted that the evidence collected does not go to show any incitement or urging to take some drastic or inadvisable action as is held in (2002)5 SCC 371 (Sanju Sengar ..vs.. State of M.P.). The decision was rendered by the Supreme court on merits. At this stage, the court, as said earlier, cannot scan the evidence and weigh it whether and what amount of evidence is sufficient to make out the charge is to be considered on merit and this is not the stage where the court can enter into that arena. If this court observes at this stage that there was no incitement or urging, that would amount to giving a finding of not guilty without a trial. The quashing of proceeding is ordered only when there is absolutely no evidence and no offence is disclosed. Such is not the case here. In the circumstances, the petition is dismissed. Without being influenced by any of the observations of this court in this judgment, the trial court may proceed to decide the sessions trial on merit or if discharge application is filed he may decide the application without being influenced by any of the observations of this court.