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2014 DIGILAW 1679 (BOM)

Dhiraj Jagdish Khairmode v. State of Maharashtra

2014-07-31

MRIDULA BHATKAR

body2014
Judgment : 1. This is an application under section 438 of the Criminal Procedure Code as the applicants are prosecuted under section 306, 330, 342 r/w 34 of the Indian Penal Code. The facts of this case are that the applicants/accused are two police constables. They had picked up the deceased and took him to the police station at Nijampura police Station, Bhiwandi, Thane on 20.6.2014. They made allegations that the deceased had committed theft of 2 kg. gold. They asked him to confess the same. He was taken at around 11 O'clock. He did not admit to the offence. Therefore, they put him on the chair and handcuffed him. They also assaulted him with kicks and fist blows on his chest and stomach. In the evening they allowed him to go alongwith his brother to his house and asked him to come next day at 11am for enquiry. The deceased, on his return, informed the first informant Chander Thakare, the brother of the deceased that the police have told him that he should confess, otherwise, they would see him. On next day, on 21.6.2014, before he could take his brother to the police station, at around 10am, the deceased hanged himself in the house. As it was seen by the family members, they immediately cut that rope and took him to the hospital. At that time, he was alive. The treatment was going on. Therefore on 22.6.2014, Sunil gave an FIR against the two applicants and they were charged for the offences punishable under sections 330, 342 r/w section 34 of the Indian Penal Code. All these offences being bailable, the applicants/accused were arrested and were released on bail. Meanwhile, the deceased was treated in the hospital. However, he could not recover and after 20 days, he succumbed to his neck injury. Thereafter, the police invoked section 306 of the Indian Penal Code and added it in the said C.R. Section 306 being a non-bailable offence, the Investigating Officer wanted to arrest the applicants/accused and therefore, this anticipatory bail is filed. 2. The learned Counsel for the applicants/accused has submitted that the applicants/accused neither had any intention not did instigate or facilitate or conspire against the deceased that he should commit suicide. He submitted that they might have committed some wrong but no act is committed to prosecuted them under section 306 of the Indian Penal Code. 2. The learned Counsel for the applicants/accused has submitted that the applicants/accused neither had any intention not did instigate or facilitate or conspire against the deceased that he should commit suicide. He submitted that they might have committed some wrong but no act is committed to prosecuted them under section 306 of the Indian Penal Code. The learned Counsel argued that no custodial interrogation is required of the applicants/accused and they are ready to cooperate with the investigation. 3. Learned Prosecutor submitted that the applicants/accused are police personnel and should not have used their power excessively. The deceased was a boy of 16 years old and he was terrorised by the acts of the police. There was a threat given by the police. They pressurised him to extort confession and on the next day itself, the boy committed suicide. The applicants/accused are responsible for his death and the police are justified in invoking section 306 against the applicants. 4. It is an unfortunate incident of suicide which is an offshoot of the police atrocities. Prima facie, it appears that there is evidence that the applicants/accused have crossed their limits at the time of interrogating the suspect. They should have kept in mind that the suspect is a boy of 16 to 17 years of age. Due to the threats given by the police, the deceased got scared and out of fear of the police, he committed suicide and therefore, the police are rightly prosecuted for the offences punishable under section 330 and 341 r/w section 34 of the Indian Penal Code. The incidents of police atrocities indeed, are disturbing. However, it is necessary to see whether the act of the police fulfills the ingredients of the section 306 or not? The police are definitely responsible for the decision to commit suicide by the deceased. However, whether they can be prima facie charged legally as perpetrators of this offence is an issue. While applying section 306 of the Indian Penal Code, the impugned act should be covered under the ingredients of section 107 of the Indian Penal Code, which reads thus: "107. A person abets the doing of a thing, who - First. However, whether they can be prima facie charged legally as perpetrators of this offence is an issue. While applying section 306 of the Indian Penal Code, the impugned act should be covered under the ingredients of section 107 of the Indian Penal Code, which reads thus: "107. A person abets the doing of a thing, who - First. Instigates any person to do that thing; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation I. - A person who, by wilful mis-representation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2. - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act." 5. Thus, the applicants/accused admittedly did not intend that the boy should commit suicide. They neither instigated nor conspired that the boy should commit suicide. They prima facie did not facilitate him to commit suicide. Thus, to attract section 306, in the eyes of law, threats and assault by the police are not sufficient and hence, prima facie, I am of the view that the applicants/accused can be granted pre-arrest bail. Accordingly, the application is allowed subject to the following terms: i) In the event of arrest, the applicants/accused be enlarged on bail on furnishing P.R. Bond in the sum of Rs.20,000/- with one or two sureties in the like amount; ii) The applicants shall not tamper with the evidence; iii) The applicants shall cooperate with the investigating officer and shall report to the concerned police station, as and when called, till the filing of chargesheet.