Research › Search › Judgment

Bombay High Court · body

2018 DIGILAW 864 (BOM)

Kailash Ajabrao Kakde v. State Of Maharashtra

2018-03-23

B.R.GAVAI, M.G.GIRATKAR

body2018
JUDGMENT B. R. Gavai, J. - Rule. Rule made returnable forthwith. Heard finally with consent of the learned counsel appearing for the parties. 2. The applicant has approached this Court praying for quashing and setting aside First Information Report (FIR) bearing No. 766/2017 for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code registered by the nonapplicant no. 1. 3. The first information report is lodged at the instance of the nonapplicant no. 2 stating therein that his brother Sanjay @ Gajanan Madhavrao Wankhade who left the house on 1892017 did not return and as such, his room was searched. In the room, handwritten chit was found which was presented in the Police Station on the same day i.e. on 20-9-2017. His dead body was found on 20-9-2017 in a hanging condition. 4. It is the allegation of the first informant that the present applicant who is the borrower in collusion with one Ashok Zade, Manager of the Bank had duped the bank with substantial amount. It is alleged that deceased was disturbed with the said incident and there was lot of pressure on his mind which has resulted in committing suicide. 5. The law with regard to the ingredients of Section 306 of the Indian Penal Code is elaborately discussed by this Court in the case of Dilip s/o Ramrao Shirasao and ors. Vs. State of Maharashtra and anr. , (2016) AllMR(Cri) 4328. The Division Bench of this Court of which B. R. Gavai, Judge was a party after considering all the earlier judgment of the Hon''ble Apex court has held thus : 20. As has been held by Their Lordships of the Apex Court that for permitting a trial to proceed against the accused for the offence punishable under Section 306 of the Indian Penal Code, it is necessary for the prosecution to at least prima facie establish that the accused had an intention to aid or instigate or abet the deceased to commit suicide. In the absence of availability of such material, the accused cannot be compelled to face trial for the offence punishable under Section 306 of the Indian Penal Code. In the absence of availability of such material, the accused cannot be compelled to face trial for the offence punishable under Section 306 of the Indian Penal Code. As has been held by Their Lordships of the Apex Court that abetment involves mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused in aiding or instigating or abeting the deceased to commit suicide, the said persons cannot be compelled to face the trial. Unless there is clear mens rea to commit an offence or active act or direct act, which led the deceased to commit suicide seeing no option or the act intending to push the deceased into such a position, the trial against the accused under Section 306 of the Indian Penal Code, in our considered view, would be an abuse of process of law. It could thus be seen that for permitting prosecution to continue for an offence punishable under Section 306, it is necessary for the prosecution to at least prima facie establish that the accused had an intention to aid or instigate or abet the deceased to commit suicide. It has been held that abetment involves mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused in aiding or instigating or abeting the deceased to commit suicide, the said persons cannot be compelled to face the trial. 6. In the present case, taking the allegations at its face value, it cannot be said that any positive or proximate act is attributed to the present applicant. Assuming for the moment that the allegation that the applicant had duped the bank for substantial amount, that cannot be said to be an instigation to a person to commit suicide. The deceased may be a sensitive person and may not be in a position to tolerate the loss of reputation on account of malfunctioning of the bank. However, that cannot be a sufficient ground to continue the proceedings under Section 306 of the Indian Penal Code against the present applicant. As such, the criminal application is allowed. 7. Rule is, therefore, made absolute in terms of prayer clause (i).