1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 643 OF 2009 1. Mandakini Kiran Landge, Age 20 years, Occupation Household, Resident of Madhi, Taluka Pathardi, District Ahmednagar. 2. Hirabai Jagannath Markad, Age 65 years, Occupation Household, Resident of Madhi, Taluka Pathardi, District Ahmednagar. 3. Dadasaheb Rambhau @ Bhaurao Bhapse, Age 34 years, Occupation Veterinary Doctor. Resident of nimbodi, Taluka Pathardi, District Ahmednagar Petitioners V E R S U S 1. The State of Maharashtra 2. Shripat Chandrakant Landge, Age 28 years, Occupation Service, Resident of Shikrapur, Taluka Shirur, District Pune. Respondents Mr. Joydeep Chatterji, Advocate for the petitioners Mr. N.H. Borade, APP for the respondent No.1 / State Mr. S.S. Jadhavar, Advocate for the respondent No.2 CORAM : A.V. NIRGUDE, J. DATED : 4th May, 2010 ORAL JUDGMENT 1. Rule. Rule made returnable forthwith. By consent, Writ Petition is taken up for final hearing. 2 2. Heard. 3. This Writ Petition is filed for quashing of the criminal proceedings started against the petitioners pursuant to the complaint dated 31st May, 2009, lodged at Pathardi, Police Station, District Ahmednagar. The police registered offence under Sections 306, 504, 506 read with Section 34 of the Indian Penal Code pursuant to the complaint against the petitioners. After registration of the offence, the police completed investigation and sent a charge-sheet against the petitioners and that the case is now pending before the Sessions Court, Ahmednagar. 4. On perusal of the entire charge-sheet, following material emerges against the petitioners. The petitioner No.1 was wife of one Kiran Landge, the petitioner No.2 is the mother of the petitioner No.1 and the petitioner No.3 is the brother-in-law of the petitioner No.1. Kiran, the husband of the petitioner No.1 committed suicide on 29th May, 2009. After the marriage of deceased Kiran and the petitioner No.1 in the month of April, 2008, the petitioner No.1 came to reside at village Pimpalgaon Landga, Taluka Ahmednagar. Five to six months after their marriage, the father of the petitioner No.1 died at village Madhi, Taluka Pathardi, District Ahmednagar. The petitioner No.1, thereafter, started asking Kiran that they would stay at village Madhi to look after the agricultural field of her father (the petitioner No.1 has no brother). The petitioners No. 2 and 3 also started pressurizing Kiran that he should go and reside at village Madhi and look after the agricultural field of the petitioner No.1’s father. But, Kiran did not want to go and stay there. In the meantime, the petitioner No.1 became pregnant, and in the advance stage of pregnancy in March, 2009, she was sent to village Madhi, as per the custom. On 22nd April, 2009, the petitioner No.1 delivered a girl child. On 20th May, 2009, Kiran’s parents Chandrakant and Chandrakala met with an accident. They 3 fell from a motorcycle. Kiran’s mother Chandrakala sustained fracture to her hand and became immobile. In view of this difficulty, Kiran’s parents and family members requested the petitioners No. 2 and 3 to send the petitioner No.1 back to village Pimpalgaon Landga so that she would take care of the family members. The petitioners, it seems, refused to abide by this request, and it seems, they demanded that Kiran should come and take his wife and child away. 5. It seems, between 20th May to 29th May, a lot of pressure was put to deceased Kiran from both the sides of his family, and ultimately, on 29th May, 2009, Kiran started making phone calls to his father and brother that he would suicide at the threshold of the house of the petitioners, and, they should come and pick up his dead body. This was indeed a serious threat. It also indicates his state of mind. At that time, he was most probably frustrated and depressed due to the conflicting situation he was caught in. (There is an indication on record that Kiran issued similar threat to the petitioners on that day by making a phone call at the land line number of the petitioners' house.) It seems, Kiran, on 29th May, as per his threat, proceeded to village Madhi, consumed poisonous substance and went to the house of the petitioners at village Madhi. He was found at the threshold of the house of the petitioners in serious condition. He was unconscious, froth was coming from his mouth. When the petitioner No.2 noticed him lying in front of her house, she immediately called an auto- rikshaw and shifted him to a hospital. Kiran died on the same day. 6. The question is, whether the petitioners can be accused of abetting Kiran’s suicide. The answer is in negative. Section 306 reads as under : 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. 4 Section 107 reads 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. Having regard to the provisions of Section 107 of the Indian Penal Code, the prosecution has to prima facie show that the petitioner No.1 had instigated Rani to commit suicide or he had intentionally aided by any act the suicide of Rani. The Law on this subject is discussed in a Judgment of Kerala High Court in the case of Cyriac s/o Devassai & Anr. Vs. Sub-Inspector of Police, Kaduthuruthy & Anr. ( 2006 All MR (Cri) Journal 27). If a person commits suicide as instigated by another the following facts will be involved. The person who instigates the deceased to commit suicide must do some act by words, deed or wilful omission or conduct which may even be a wilful silence, in order to irritate or annoy the deceased until he reacted. Or, the person who instigates the deceased must push or force the deceased by deed, words, or wilful omission or conduct which may even be a wilful silence to make the deceased to move forward more quickly in a particular direction. Or, he must strongly persuade or advise the other to do some act. While acting so, the person who instigates the other must also have the intention to provoke, incite, urge or 5 encourage the latter to commit suicide. 13 – In short, in order to prove that the accused abetted commission of suicide of a person, prosecution has to establish the following factors ; (1) that the accused kept on irritating or annoying the deceased bywords, deed or wilful omission or conduct which may even be a wilful silence until the deceased reacted; or, that the accused strongly advised or persuaded the deceased to do something; or pushed or forced the deceased by deed, words or wilful omission or conduct which may even be a wilful silence to make the deceased to move forward more quickly in a forward direction (2) that the accused had the intention to provoke, incite, urge or encourage the deceased to commit suicide, while acting in the manner stated above... The Supreme Court in the case of Gangula Mohan Reddy Vs. State of A.P. (2010 All MR (Cri) 615) held that clear mens rea to commit offence must be present for proving the abetment of suicide. The Supreme Court held as under : “20. Abetment involves a mental proces of instigation 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 Supreme Court also held that it is not possible to lay down any formula in dealing with such cases. On the face of it, therefore, even though the entire prosecution case is accepted as it is, the petitioners by putting pressure on the Kiran did not commit any physical act with mens rea that their act/s would lead or incite or guide Kiran to commit suicide. Thus the offence of abetment of suicide is not made out against the petitioners. Besides, there is nothing on record to show that the petitioners / accused had committed offences punishable under Sections 504 and 506 of the Indian Penal code. 7. The learned Advocate appearing for the respondent No.2 Mr. Jadhavar asserted that at this belated stage it would not be proper for this Court to interfere in the criminal proceedings, which is now 6 pending for trial. He suggested that the petitioners/accused can certainly make an application for discharge and get redressal of their grievance. The Law on this subject is laid down by the Supreme Court in the case of M/s. Pepsi Foods Ltd. and another V. Special Judicial Magistrate and others ( AIR 1998 Supreme Court 128 ) and in the case of G. Sagar Suri and another V. State of U.P. and others ( AIR 2000 Supreme Court 754). There is no prohibition of using the powers of High Court under Section 482 of Code of Criminal Procedure and under Article 227 of the Constitution of India even if the trial is about to begin and even if the petitioners have alternate remedy of seeking discharge. This, in my view, is really a grave case where the petitioners are wrongly implicated by the complainant and the police. They deserve redressal immediately, and so, I am utilizing powers under Section 482 of Code of Criminal Procedure to quash the criminal proceedings in Sessions Case No. 36 of 2010. ORDER Crime No. I – 121 of 2009 of Pathardi Police Station and the Sessions Case No. 36 of 2010 pending before the Sessions Court, Ahmednagar stands quashed and set aside. Rule made absolute. sd/- (A.V. NIRGUDE, J.) srm/criwp/643/09/ok