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2022 DIGILAW 2660 (BOM)

Yogesh Rupchandji Agrawal v. State of Maharashtra

2022-12-22

M.W.CHANDWANI, SUNIL B.SHUKRE

body2022
JUDGMENT M.W.CHANDWANI,J. - Heard. 2. Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel for the parties. 3. This common judgment will dispose of two Criminal Applications. The applicant in each of the Criminal Application, seeks to quash the criminal proceedings pending against them arising out of First Information Report (FIR) No. 803/2021 registered by Old City Police Station, Akola for the offences punishable under Ss. 306 read with Sec. 34 of the Indian Penal Code (IPC). 4. The facts, which give rise to the present Criminal Applications can be stated as under:- One Harshal Omprakash Sharma lodged a complaint with Police Station Old City, Akola that his nephew Alpesh Arvind Upadhyay committed suicide by hanging from ceiling fan in his house. The suicide-note was found near his bed, wherein the deceased has mentioned the reason for taking extreme step as Corona pandemic as well as mental harassment given by the applicants and one Vishal Purohit. On the said complaint, the FIR for the aforesaid offences came to be registered against the present applicants and one Vishal Purohit. During the course of the investigation, the Police recorded the statement of witnesses and also seized the suicide-note. During the pendency of the present applications, charge-sheet came to be filed. 5. The notices were issued to the non-applicants. Learned APP appears for non-applicant no. 1/State and file its reply opposing the application. Non-applicant no. 2, though was served with notice, but chose not to appear in the matter. 6. Learned counsel for the applicant- Sushil Dandale vehemently submitted that in noway the applicant is concerned with suicide committed by the deceased. According to him, due to Corona pandemic situation, the financial condition of the deceased was not good and under the pressure of loss in business, he has taken drastic step of committing suicide. There is no abetment on the part of applicant- Sushil Dandale and the applicant cannot be made responsible for the same. Learned counsel appearing for Yogesh Agrawal vehemently submitted that since the deceased was looking for business partner, the deceased offered him to join as a business partner and accordingly, they started business of catering service by name "Shagun Catering". The joint venture and undertaken various catering projects and thereafter, the account was also reconciled between the deceased and the applicant on 9/7/2021. The joint venture and undertaken various catering projects and thereafter, the account was also reconciled between the deceased and the applicant on 9/7/2021. According to him, the alleged dispute between the applicant and the deceased were one month prior to the alleged incident and that there is no proximate link between the dispute and death of the deceased and therefore, the applicant cannot be connected with suicide of the deceased. It is vehemently submitted that there is no abetment on the part of the applicants to the deceased to commit suicide. Therefore, it is submitted that the criminal proceedings against the applicants be quashed. 7. Shri Doifode, learned APP appearing on behalf of State submitted that both the applicants were demanding the amount from the deceased ever now and then. The applicants harassed the deceased continuously thereby abeted the deceased to commit suicide. According to him, there is sufficient material in the form of suicidenote against the applicant. He sought rejection of the applications. 8. In order to appreciate the contentions raised by learned counsel for the respective applicants, as well as learned APP for nonapplicant no. 1/State, it would be necessary to refer to Ss. 107 and 306 of the IPC, which read as under:- 107. Abetment of a thing.-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 1.-A person who, by wilful misrepresentation, 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. 306. 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. 306. Abetment of suicide.-If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 9. The consideration and analysis of the above quoted provisions has attracted attention of the High Courts and the Supreme Court, the Courts have in various cases, elucidated the essential ingredients for attracting the offence of abetment of suicide. Before proceeding to deal with the facts of the present cases, it would be apposite to mention here the principles, which can be culled out from judgments of the Apex Court and this Court. 10. In the case of Swamy Prahalddas Vs. State of M.P. and another, [1995 Supp (3) SCC 438], the Supreme Court was considering a situation where the accused was alleged to have remarked to the deceased 'to go and die' and thereafter, the deceased committed suicide. Even in such a situation the Supreme Court held that the allegations, even if they were to be accepted as it is, did not prima facie reflect mens rea on the part of the accused and it was also found that the deceased did have time to weigh the pros and cons of the act by which he ultimately ended his life. It was held that the accused need not face the charge in such a situation. 11. In the case of Sanju Alias Sanjay Singh Sengar Vs. State of M.P., [ (2002) 5 SCC 371 ], the Supreme Court was considering a situation where the deceased had left behind a suicide note, wherein it was specifically stated that the accused was responsible for his death. In the said case, the Supreme Court considered the liability of the accused to face investigation and prosecution under Sec. 306 of the IPC, in the context of Sec. 107 thereof and it was held that the word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite, further holding that presence of mens rea, therefore, was a necessary concomitant of instigation. It was found that in the said case the alleged abusive words were used by the accused against the deceased, two days prior to the date when the deceased was found hanging. In these circumstances, the Supreme Court found it fit to quash the criminal proceedings. 12. In the case of Madan Mohan Singh Vs. State of Gujarat and another, [ (2010) 8 SCC 628 ], the accused was alleged to have instigated his driver to commit suicide. There was a suicide note of 15 pages left behind by the deceased and the accused had approached the High Court for quashing of the FIR and the criminal proceedings, but his prayer was rejected, as consequence of which, the accused was before the Supreme Court seeking relief. The Supreme Court applied Sec. 306 read with 107 of the IPC and found that there has to be proximity between the alleged acts of the accused and the extreme step taken by the deceased of committing suicide. It was held that the allegations made and the material ought to be of a definite nature and not imaginary or inferential. The Supreme Court went into the suicide note of about 15 pages and found that the contents thereof expressed the anguish of the deceased, who felt that his boss (the accused) had wronged him, but it was noted that the contents fell short of depicting an intentional act on the part of the accused for driving the deceased to commit suicide. On this basis, the judgment of the High Court was set aside and the FIR and criminal proceedings were quashed. 13. In the case of S.S. Chheena Vs. Vijay Kumar Mahajan and another, [ (2010) 12 SCC 190 ], the Supreme Court considered the facts of the said case and after referring to Ss. 107 and 306 of the IPC, found that the High Court had erred in not quashing the criminal proceedings. Reference was made to a series of judgments on the aspect of abetment, particularly in the context of instigation. It was observed in the said judgment as follows : - "25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. It was observed in the said judgment as follows : - "25. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Sec. 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide. 26. In the instant case, the deceased was undoubtedly hypersensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation." 14. Similarly, in the case of M.Mohan Vs. State Represented by the Deputy Superintendent of Police [ (2011) 3 SCC 626 ], the Supreme Court held in the context of abetment as follows: - "44. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. 45. The intention of the legislature and the ratio of the cases decided by this court are clear that in order to convict a person under sec. 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide." 15. In the present case, the material available on record shows that the deceased initially was having partnership with co-accused Vishal Purohit in the catering business and the applicant- Sushil Dandale was Manager in the said partnership and was acting on behalf of Vishal Purohit. In the present case, the material available on record shows that the deceased initially was having partnership with co-accused Vishal Purohit in the catering business and the applicant- Sushil Dandale was Manager in the said partnership and was acting on behalf of Vishal Purohit. There are allegations that the applicants, on behalf of the co-accused- Vishal Purohit, used to demand outstanding dues from the deceased and also used to threaten that he will kill the deceased by shooting him. It is a matter of record, as seen from the case of the prosecution, that the said partnership came to an end two months prior to the incident of suicide and thereafter a new partnership enterprise was started by the deceased with applicantYogesh Agrawal. It appears from the charge-sheet that in the said joint venture also, there were disputes on the financial aspect and the deceased had to pay some amount to Yogesh Agrawal. It is alleged that a month prior to the alleged incident, the deceased was beaten by Yogesh Agrawal. Now, the prosecution has come up with the case that just because of harassment given by these applicants and co-accused- Vishal Purohit, the deceased committed suicide by hanging from ceiling fan at his house. 16. Record shows that the alleged harassment was given to the deceased by the applicant- Shushil Dandale along with co-accused and by the applicant- Yogesh Agrawal about two months and one month, respectively, prior to the incident of suicide. Thus, there is considerable gap between the alleged harassment and extreme step taken by the deceased. As held by Hon'ble Supreme Court in the case of M. Mohan (supra), there has to be a proximate link between the incriminating circumstances or acts and abetment of suicide by the deceased. We find that there is no proximate line between the alleged incident of harassment at the behest of the petitioner and the extreme step taken by the deceased. 17. This also takes us to the suicide-note left by the deceased. We have analysed the contents of the suicide-note left by the deceased. It also refers to Corona pandemic as one of the reason for taking the extreme step. Thus, it appears that the deceased was financially unstable due to Corona pandemic situation. 17. This also takes us to the suicide-note left by the deceased. We have analysed the contents of the suicide-note left by the deceased. It also refers to Corona pandemic as one of the reason for taking the extreme step. Thus, it appears that the deceased was financially unstable due to Corona pandemic situation. After taking into consideration the surrounding circumstances and the fact of pandemic situation, which affected everybody in one way or another, we are of the view that the deceased committed suicide out of furstation, emerged due to the situation and circumstances created by the pandemic. We do not find prima facie material that the demands, which have been allegedly made by the applicants, with intention of driving the deceased to commit suicide. There is no material to show that the demands were unworthy or unreasonable. Stretching the things a bit far to reach a finding that accused intentionally acted in such a manner to drive the deceased to commit suicide, will not be justified. Thus even if the facts are taken at their face value, they do not prima facie constitute any offence. 18. In case of State of Harayana Vs. Stretching the things a bit far to reach a finding that accused intentionally acted in such a manner to drive the deceased to commit suicide, will not be justified. Thus even if the facts are taken at their face value, they do not prima facie constitute any offence. 18. In case of State of Harayana Vs. Bhajan Lal [1992 Supp (1) SCC 335], the Hon'ble Supreme Court has illustrated the category of cases, wherein the extra-ordinary power under Article 226 or the inherent powers under Sec. 482 of the CrPC can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, which are reproduced as under:- "(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 Sec. 156(1) of the Code except under an order of a Magistrate within the purview of Sec. 152(2) of the Code; (3) where the uncontroverted allegations made in the FIR 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 FIR 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 Sec. 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." 19. We are convinced that continuance of these proceedings would amount to the abuse of process of law and this case is, in our view, squarely covered by guideline no. 1 in the case of Bhajan Lal (supra). Therefore, we found that the case in hand is a fit case where the extra-ordinary power under Sec. 482 of Cr.P.C. is to be invoked. 20. In view thereof, both the applications are allowed. The criminal proceedings filed pursuant to FIR No. 803/2021 registered with Police Station Old City, Akola for the offences punishable under Sec. 306 read with 34 of the IPC is quashed and set aside. 21. Rule is made absolute in the above terms.