1 Criminal Application No.802/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.802 OF 2011 Kiran s/o Ananda Bavaskar ... APPLICANT VERSUS The State of Maharashtra & anr. ... RESPONDENTS ..... Shri Vijay Sharma, Advocate for applicant Shri V.H. Dighe, A.P.P. for respondent No.1. Shri S.W. Mundhe, Advocate for respondent No.2 ..... W I T H CRIMINAL APPLICATION NO.633 OF 2011 Pradip s/o Ananda Bavaskar ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ..... Shri Vijay Sharma, Advocate for applicant Shri V.H. Dighe, A.P.P. for respondent ..... CORAM : K.U. CHANDIWAL, J. DATE : 29th March, 2011 PER COURT : 2 Criminal Application No.802/2011 1. Mr. Sharma has tendered rejoinder, copy received by Mr. Mundhe. Heard. The accused/ applicant in Criminal Application No.802/2011, is husband of deceased Shobha, while the applicant Pradip in Criminal Application No.633/2011 is brother-in-law of the deceased Shobha. 2. During the course of submission, after arguing that the accused/ applicants are apparently framed to satisfy the whims of brother of deceased Shobha. Learned counsel has tnedered a copy of ration card issued in the name of Pradip. This ration card illustrate he residents separately at Hudco Colony, Near Mahadeo Temple at Room No.54, Bhusawal. Apparently, he was not involved in the affairs of alleged ill-treatment or demands or harassment to deceased Shobha. It could be that this accused/ applicant Pradip had attempted to cause threats to the complainant while at hospital, however, for that purpose his custody is not warranted. 3. Mr. Sharma for the accused/applicant Kiran submits, by placing reliance to the judgment of the Hon’ble Apex Court in the matter of Siddharam Satlingappa Mhetre Vs. State of Maharashtra & ors. (2010 STPL (Web) 1020 SC), and particularly para 122 therein, which reads as under : 3 Criminal Application No.802/2011 “122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused’s likelihood to repeat similar or the other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to 4 Criminal Application No.802/2011 the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” to release the accused/ applicant in terms of Section 438 of the Criminal Procedure Code. 4. The learned counsel submits, the deceased had mental disorder, she was referred to Psychiatrist, she could not be pregnant owing to her treatment as certificate by the Gynecologist, the allegations of she being pregnant at the material time are nullified. Counsel submits, there are three possibilities, victim Shobha had committed suicide or it was accidental death or in a fit of anger something else has happened. According to him, in all possibilities, there is no role to be attributed to the accused applicant, the husband. 5. Counsel submits, he is gainfully employed as a Teacher, putting him in fetters beyond 24 hours will lead to suspension from his service, he will lose the job. The accused/ applicant has to maintain a daughter born of the wedlock, who is dependent on him. 5 Criminal Application No.802/2011 There is no overt act after the accused/ applicant allowing to attend the investigator during the period of interim protection. Counsel submits, that the accused/ applicant has been framed at the behest of her brother and the relations. 6. Reading the investigation papers, the correspondence between the spouse, it is not that the frustration in the mind of the victim was the only cause for her to end her life. The suicidal note to which reference is given is not primarily indicated to be in the handwriting of the deceased. Yet, no comments, though are invited. 7. The controversy between the spouse could well be seen by flashing notices to each other wherein deceased in unequivocal tone and terms informed the illtreatement on the part of the accused/ applicant Kiran. Several circumstances are quoted. Few of them are reflected even in the F.I.R. by her brother. (i) In 2005, the husband and in-laws demanded Rs. 30,000/- for purchasing shares of Reliance Company and Rs. 1,00,000/- for construction, (ii) On 3.1.2011, the accused with his parents dropped Shobha at parental house where she again informed plight faced by her; (iii) Thereafter her mobile was switched off. 6 Criminal Application No.802/2011 Consequently, parents of Shobha made a phone call which was attended by Sushilabai and surprisingly apprised that since one hour Shobha is not at abode. The brother has even complained, that the accused has even kept Shobha on occasion in lock, thereby preventing her from attending her duties. 8. The complainant also states, the theory of death-chit of Shobha is a fabrication in itself as Shobha was at parental house from 2.1.2011 to 24.1.2011. 9. Even if the deceased was facing mental trouble, however, that by itself would not primarily indicate that she has committed suicide out of frustration. The tendency to commit suicide was, not ill health, but could be due to persistant trouble, nagging, indiction to the victim. 10. The legal position on abetment is, if a person instigates any other person to commit suicide and as a result of such instigation other person commits suicide, the person causing the instigation is liable to face prosecution in terms of Section 306 of the Indian Penal Code for abetting the commission of suicide. Such other person necessarily be shown to have committed suicide. At 7 Criminal Application No.802/2011 this stage of the matter, death of his wife is not in controversy. Abetment is defined in Section 107 of the Indian Penal Code to mean that, “A person abets the doing of a thing, who 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 intentionally aids, by any act or illegal omission, the doing of that thing”. Applying these principles as a scale, primarily there is indiction of the accused/ applicant as he acted with indignity to Shobha. 11. The Hon’ble Lordships in the matter of Siddharam (supra) in para 124, have also put a note of caution that the Court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.” The Hon’ble Lordships have also observed, “Personal liberty is of very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.” 12. The circumstances highlighted hereinabove illustrate that the accused/ applicant made the life of the wife as most 8 Criminal Application No.802/2011 miserable affairs and she was, therefore, coerced and faced with the situation to have elimination of her precious life, leaving behind a child. Considering these aspects, the pre-arrest bail sought by the accused/ applicant Kiran Ananda Bavaskar is rejected. Interim protections are vacated. Observations are prima facie in nature. 13. So far as Pradip Ananda Bavaskar is concerned, he be released on his furnishing P.R. bond and a surety in the sum of Rs. 10,000/- (Rupees ten thousand), in Crime No.40/11, registered at M.I.D.C. Police Station, Jalgaon. The accused/ applicant Pradip to attend the investigator on every Sunday between 6.00 p.m. to 8.00 p.m. till 31st May 2011. He shall desist from influencing directly or indirectly, witnesses by making any inducement, threat or promise. K.U. CHANDIWAL JUDGE fmp/cri802.2011