1 1821.11.wp.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION. Criminal Writ Petition No. 1821 of 2011 Subhash Gangaram Kharade & ors. ....Petitioners v/s. The State of Maharashtra ....Respondent Mr. A.P. Mundargi i/b. S.S. Salunkhe for the petitioners. Mr. D.R. More-APP for the State. CORAM: B.R. GAVAI, J. 3rd August, 2011 PC: Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2. By way of present petition, the petitioner challenges the order dated 16th June, 2011 passed by the learned Additional Sessions Judge, Pune thereby rejecting the application filed by the present petitioner in Sessions Case No. 685/2009. 3. The deceased was working in one Shivshakti Co-operative Credit Society. The deceased was transferred from Nigadi branch to Vashi branch in new Bombay. The deceased made a representation for canceling the transfer. The same was rejected. The deceased joined the services at Vashi on 22nd January, 2009. On 31st January, 2009 he set himself on fire. Two dying declarations of the deceased have been recorded. On the basis of the said dying declarations a FIR came to be registered for the offence punishable under 2 1821.11.wp.sxw Section 306 read with Section 34 of IPC against the present applicants who are the Directors/employees of the said Shivshakti Co-operative Credit Society. After the submission of chargesheet, the petitioner filed an application for discharge which is rejected. Hence, the present petition. 4. Shri Mundargi, the learned Senior Counsel submits that there is no material placed on record which can be said to establish the intention, abetment of aid to the deceased to commit the suicide. He, therefore, submits that the prosecution against the present petitioner for offence punishable under Section 306 is unsustainable and as such the learned trial Court ought to have allowed the application for discharge. Shri Mundargi relies on the case of Madan Mohan Singh v/s. State of Gujarat & anr. {(2010) 8 SCC 628}. 5. Shri More, the learned APP vehemently opposes the petition. He submits that learned trial Court by sound and cogent reasons has rejected the application and, therefore, no interference is warranted. 6. The learned APP further submits that the learned trial Judge has rightly relied on communication dated 27th January, 2009 addressed by the deceased to the petitioners. 7. In the case of Madan Mohan Singh cited supra, the petitioner was working as a DET in Bharat Sanchar Nigam Ltd.. The said deceased i.e. Deepakbhai Krishnalal Joshi has committed suicide. On the basis of complaint filed by his wife, the FIR came to be registered. The petitioner had applied for discharge. The trial Court rejected it. The Gujarat High Court upheld the order of the trial Judge. Being aggrieved thereby the petitioner has approached the Apex Court. The prosecution heavily relied on the suicide note of the deceased wherein it was stated that the petitioner was 3 1821.11.wp.sxw responsible for his death. The Apex Court negating the contention on behalf of prosecution observed thus:- “10. We are convinced that there is absolutely nothing in this suicide note or the FIR which would even distantly be viewed as an offence much less under Section 306 IPC. We could not find anything in the FIR or in the so-called suicide note which could be suggested as abetment to commit suicide. In such matters there must be an allegation that the accused had instigated the deceased to commit suicide or secondly, had engaged with some other person in a conspiracy and lastly, that the accused had in any way aided any act or illegal omission to bring about the suicide. 11. In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it cannot be said that the accused even intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this. 12. In order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306 IPC either in the FIR or in the so-called suicide note. 13. It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and, therefore, abet the offence. In fact, there is no nexus between the so-called suicide (if at all it is one for which also there is no material on record) and any of th alleged acts on the part of the appellant. There is no proximity either. In the prosecution 4 1821.11.wp.sxw under Section 306 IPC, much more material is required. The courts have to be extremely careful as the main person is not available for cross-examination by the appellant-accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the appellant-accused to face the trial. A criminal trial is not exactly a pleasant experience. The person like the appellant in the present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature. In the similar circumstances, as reported in Netai Duta v. State of W.B., this Court had quashed the proceedings initiated against the accused. 14. As regards the suicide note, which is a document of about 15 pages, all that we can say is that it is an anguish expressed by the driver who felt that his boss (the accused) had wronged him. The suicide note and the FIR do not impress us at all. They cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide. If the prosecutions are allowed to continue on such basis, it will be difficult for every superior officer even to work.” 8. Nodoubt that in both the dying declarations the deceased has stated that he was committing suicide since he felt harassed by the acts of the petitioners of causing defame to him. However, the perusal of both the dying declarations; one recorded by the police and other recorded by the Executive Director would reveal that what he has stated that he was transferred on 22nd January, 2009 to New Bombay. He had asked the petitioners as to why he was transferred and for cancelling the said transfer. He states that, however, the petitioners instead of cancelling the transfer had defamed the deceased by putting the Board in the branches of the said Patsanstha against the petitioner and as such he has committed suicide. The learned trial Judge has rejected the application by observing that transfer in question was not a regular transfer but a transfer which amounted to harassment and, therefore, the petitioner cannot be discharged. 5 1821.11.wp.sxw 9. In my considered view, the view taken by the learned trial Judge is in total ignorance of law laid down by the Apex Court in the case of Madan Mohan Singh(supra). By now it is a settled principle of law that transfer is an incident of service. Merely because a person is transferred from one branch to another branch, cannot be said that it would amount to an act which aids or abets the commission of a suicide by a person who has committed suicide. As held by the Apex Court in the aforesaid case for proceeding further against the accused under the offence punishable under Section 306 of the IPC, it is necessary for the prosecution to establish that intention of the accused was to aid or to instigate or to abet the deceased to commit suicide. If a transfer of an employee is to be construed to be such an aid or instigation or abetment, than the authorities who are enjoined with the powers of transferring employees would be always under threat of being charged with offence punishable under Section 306, if an employee is transferred against his wishes. As held by the Apex Court in the case of Madan Mohan Singh (supra) what has been stated by the deceased in the dying declaration at the most can be said to be an anguish of an employee who felt harassed on account of transfer from one place to other place. 10. In that view of the matter, I find that the learned trial Judge has totally erred in passing the order impugned. I do not find that any purpose would be served by making the present petitioner to the face the trial for the offence punishable under Section 306. 11. Rule is made absolute in terms of prayer clause (a). (B.R. GAVAI, J)