1 IN THE HIGH COURT OF JUD ICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 3745 /2009 [Abhay Manohar Jawade vs. State of Maharashtra ) ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr S V Sirpurkar, Adv. for applicant Mr S B Ahirkar , APP for Respondent State .......... CORAM : A.P.BHANGALE, J. DATED : MARCH 10, 2010 . Heard respective counsel at length. 2 By this application, the applicant prays for anticipatory bail in connection with Crime No. 49/2009 reported at Walki Police Station District Yavatmal for offence punishable under sections 306, 354, 451, 488 of the Indian Penal Code. It appears that earlier the applicant had moved the learned Ad-hoc Additional Sessions Judge, Yavatmal who, by a reasoned order dated 22.12.2009 rejected anticipatory bail application. It is alleged that the present applicant had outraged modesty of Smt. Sonali Sontakke and when Gajanan, the husband had gone to the house of the present applicant in order to question the misbehaviour, the applicant instigated said Gajanan “to go and die”. In the circumstances, Gajanan consumed poison then and there that too in the house of the applicant and committed suicide. As such, the learned APP objected grant of anticipatory bail. 3 Learned Advocate for the applicant relied upon 2 plethora of rulings, which define what is abetment of suicide and and if the same are perused, then it may be said that really speaking there was no instigation or abetment on the part of the applicant to cause suicide of deceased Gajanan, husband of Smt.Sonali. 4 Firstly, learned Advocate made reference to Sanju @ Sanjay Sengar vs. State of M.P.: (2002) 5 SCC 371 in order to argue that even when deceased was told by the accused “ to go and die” it was held that suicide was not proximate to the quarrel though the deceased was named in the suicide note and the prosecution u/s 306 was quashed by the Apex Court. Secondly, in Manish Kumar Sharma vs.State of Rajasthan :1995 Cri.L.J. 3066 the lady who committed suicide was under great mental stress on account of loan transaction between the accused and the said deceased lady; the accused had uttered fllthy words and lady had committed suicide. In that case also, charge us 306 IPC was quashed in exercise of revisional jurisdiction. Thirdly, learned Advocate placed reliance on Pallem Daniel Victor vs. State of A.P. : 1997 (1) Crimes Page 499, wherein it was held that mere non-payment of debt by deceased to accused could not be sufficient proof of the fact of intention of abetment to the accused. In that case the proceedings were quashed which was initiated under sec.306 IPC. 5 Learned APP, however, was right in emphasizing that rulings regarding presence or absence 3 of mens rea on the part of the accused could not be attracted at this preliminary stage of investigation and, therefore, would not of any help to the accused, particularly when investigation is underway. Under these circumstances, I think the applicant cannot be allowed to use order under section 438 as a shield against alleged crime in order to stall the wheels of investigation and the regular court must be left with the decision in such matters as to whether or not bail should be granted, considering the material collected during the investigation as also on the basis of progress made in the investigation. 6 Under these circumstances in order to enable the applicant to approach the regular Court I am inclined to grant anticipatory bail until 23rd March 2010. Hence the following order is passed: The applicant may on or before 23rd March, 2010 approach either the Arresting Officer ( Investigating officer) or the Remand court concerned. If the applicant surrenders on or before the stipulated period, he shall be released upon executing PR bond in the sum of Rs. 25,000/- with one surety in the equal amount. If the applicant avails this anticipatory bail order for transitory period within time-line 23.3.2010, he shall attend the Investigating Officer as and when required. He shall inform his fixed/permanent address with Phone/Cellphone number to the I.O. He shall not tamper with the prosecution evidence in any manner. In the event the applicant surrenders before the Remand Court, he 4 may apply for regular bail, which of course, may be considered on its own merits and in accordance with law. It is made clear that if the applicant fails to surrender on or before 23.3.2010, the concession of temporary anticipatory bail shall stand automatically canceled. Application is disposed of accordingly. Humdast granted. JUDGE sahare