1 Cri.W.P.No.84/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.84 OF 2011 Natwar Alias Natwarlal Rameshwar Somani, Age 45 years, Occ. Farming, R/o Belapur, Taluka Shrirampur, District Ahmednagar ... PETITIONER VERSUS 1. The State of Maharashtra (Copy to be served on Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad) 2. The Police Inspector, City Police Station, Shrirampur, Taluka Shrirampur, District Ahmednagar. 3. Smt. Arti w/o Anil Bihani, Age 40 years, Occ. Household, R/o Near Bajar Ves, Belapur (Bk.), Taluka Shrirampur, District Ahmednagar. ... RESPONDENTS ..... Shri R.N. Dhorde, Advocate holding for Shri V.R. Dhorde, Advocate for the petitioner Shri N.H. Borade, A.P.P. for respondent Nos.1 and 2 Shri R.A. Tambe, Advocate for respondent No.3. ..... 2 Cri.W.P.No.84/2011 CORAM : U.D. SALVI, J. DATED : 22nd & 23rd November, 2011. ORAL JUDGMENT : 1. Heard. Perused the petition and annexures thereto. 2. Rule. Rule made returnable forthwith. Taken up for final hearing by mutual consent of parties. 3. Order dated 31.12.2010, passed by the learned Additional Sessions Judge, Shrirampur, rejecting the discharge application (Exhibit 20) in Sessions Case No.63/2009 has been challenged by the petitioner/ accused Natwar @ Natwarlal Rameshwar Somani. 4. One Anil Bihani, husband of the respondent No.3, the complainant, residing at village Belapur, Taluka Shrirampur, District Ahmednagar, committed suicide around noon time on 3.8.2009 at his residence. He was a kerosene dealer, who had borrowed money from the petitioner and one Kamlesh Thakkar. The respondent No.3 Arti lodged the complaint with Shrirampur City Police Station in the night of 11.8.2009. Based on this complaint, a Crime at C.R. No.I-246/2009 under sections 306, 506 read with Section 34 of the Indian Penal Code, 1860 was registered with the 3 Cri.W.P.No.84/2011 Police Station against Kamlesh Thakkar and his servant Akil. Investigation in the crime was commenced. In course of the investigation, it is the prosecution case, the role of the petitioner in the crime was revealed. The police detected involvement of the petitioner in unauthorised money lending business. Ultimately, the petitioner, Kamlesh Thakkar and Akil were charge sheeted for the commission of the offence punishable under Sections 306, 506, 34, 465, 477-A of the Indian Penal Code, 1860 and Sections 32, 33(A) (B) of Bombay Money Lenders Act, 1946. 5. Before the charge sheet was filed, the petitioner had moved this Court for quashing the criminal proceedings initiated against him on the basis of the complaint of the respondent No.3 Arti Bihani. After filing of the charge sheet and the committal of the case to the Court of Sessions, the proceedings being Criminal Writ Petition No.936/2009 moved for quashing of the criminal proceedings initiated on the said complaint came up for hearing this Court found no reason to entertain the said writ petition for the reason that there was equally efficacious alternate remedy available to the petitioner by way of moving the discharge application before the trial Court. This Court observed that if the learned trial Court was to reject the plea for discharge, the 4 Cri.W.P.No.84/2011 petitioner was free to move this Court and raise all points raised in the said petition. 6. The petitioner pleaded before the trial Court that his role in the present case was limited to his visit to the residence of the accused in the morning of 2.8.2009 for making demand of the money advanced to him as revealed through the complaint of respondent No.2 Arti Bihani and as such, he deserves to be discharged. After hearing the parties and upon considering the record, the learned trial Court rejected the plea for discharge made by the petitioner by passing the impugned order dated 31.12.2010. The learned trial Court at para 14 of the impugned order made the following observations : “14. Considering the above observations of Apex Court it is clear that though the evidence collected during investigation is accepted as it is, without the test of cross-examination as this material is not sufficient to frame the charge and then the accused can be discharged u/S. 227 of Cr.P.Code and the accused not to face the ordeal trial. After perusing the statement of informant Arti Bihani, Prakash Bihani, Miss. Rani Bihani, Subhash Bihani and Prakash Dayama, it is seen that they have stated about the harassment and humiliation by the accused. There appears to be substance in the submission of learned A.P.P. for the State that in the present case the accused have humiliated and threatened the deceased Anil Bihani by saying “Anjam Acchya Nahi Hoga”. The evidence on record also shows that the accused entered bed room of deceased and privacy of the family of the 5 Cri.W.P.No.84/2011 deceased is not respected. Thus, considering the statements of the informant and other witnesses, I am of the opinion that the evidence collected by I.O. during investigation is sufficient to frame the charge against the accused. The supplementary statements of witnesses recorded by I.O. are also necessary to be considered of this stage.” 7. Relying on the judgment of the Hon’ble Apex Court in Sanju alias Sanjay Singh Sengar’s case (Sanju alias Sanjay Singh Sengar Vs. State of M.P. reported in 2002 Cri.L.J. 2796), more particularly the para No.13 therein, learned Advocate for the petitioner submitted that the proximity of the act of the accused to the suicide is a material factor for understanding whether the said act constituted instigation to commit suicide. In the present case, he submitted, the alleged incriminating act of entering the bed room of the deceased for making demand of the money and the suicide committed by the alleged victim on next day was intervened by visit of the co-accused Kamlesh Thakkar and Akil in the morning of the fateful day and there was nothing on record to show that there was nexus between the accused particularly the petitioner and the co- accused, and their visits to the residence of the deceased were part of their concerted efforts to recover their debts. According to him, demand made for repayment of the monies advanced ought not to be interpreted as abetment to suicide within the meaning of Section 107 of the Indian Penal Code, 1860 and this view was 6 Cri.W.P.No.84/2011 upheld by Nagpur Bench of this Court in Santosh Nathumal Goenka’s case (Santosh Nathumal Goenka & anr. Vs. State of Maharashtra, through its P.S.O. reported in 2010(1) Bom.C.R. (Cri.) 233). The learned Advocate further argued that, the element of mens rea is important for reading of culpability in the act alleged and in the instant case, the petitioner was interested in recovering his amount, would never have intended the deceased to commit suicide, and the suicide committed by the deceased was not direct result of the words uttered by the petitioner in course of the alleged incident dated 2.8.2009. In support of his submission, he relied on the judgments delivered by the Hon’ble Apex Court in Swamy Prahaladdas’s case (Swamy Prahaladdas Vs. State of M.P. and another reported in 1995 Supp. (3) Supreme Court Cases 438) as well as Madan Mohan Singh’s case (Madan Mohan Singh Vs. State of Gujarat & anr., reported in 2010 AIR SCW 5101). 8. Countering these submissions, learned Advocate for the respondent No.3 submitted that, the petitioner, who was dealing in unauthorised business of money lending, had humiliated the deceased by entering in his bed room and passing insulting comments on his lifestyle in the presence of his family members and thereby put the deceased under tremendous pressure to do something which he was perhaps not willing to do and this abetted 7 Cri.W.P.No.84/2011 the commission of suicide by the said act of mental torture. According to him, the proximity of the act of suicide is not a decisive factor and what constitutes an instigation needs to be assessed on the facts and circumstances of every case. To advance his submissions, he relied upon the judgments of the Hon’ble Apex Court, delivered in Chitresh Kumar Chopra’s case (Chitresh Kumar Chopra Vs. State [ Govt. of NCT of Delhi, reported in AIR 2010 SC 1446] and Surinder Kumar’s case (State of Haryana Vs. Surinder Kumar, reported in 2000 (10) SCC 337). In his view, the material before the trial Court as revealed through the charge sheet is sufficient to disclose at its face value all the ingredients constituting the alleged offence. Referring to the judgment of this Court in Devesh Pathrikar’s case (Devesh s/o Dattabhau Pathrikar & ors. Vs. State of Maharashtra, reported in 2010 ALL MR (Cri.) 1731), he submitted that the act by words, deed or willful omission or conduct which may even be a willful silence are sufficient to constitute instigation if they happen to irritate or annoy the deceased until he reacted. 9. To evaluate the merits of the rival submissions, it is first necessary to understand what the charge sheet alleged against the petitioner. Perusal of the charge sheet reveals that the complainant / respondent No.3 Arti, witnesses Rajkanya Bihani, 8 Cri.W.P.No.84/2011 Prakash Ramnath Bihani, Somnath Dhanraj Pallod, Subhash Ramnath Bihani, Prakash Dhanraj Dayama, have made allegations against the petitioner. Pertinently, Prakash Ramnath Bihani, Somnath Dhanraj Pallod, Subhash Ramnath Bihani, Prakash Dhanraj Dayama, in their initial statements dated 7.8.2009, were not in position to reveal the cause for the suicide committed by the deceased. However, it appears, they gave supplementary statements dated 16.8.2009, wherein they made vague allegations that the petitioner was also visiting the residence of the deceased again and again and abused and threatened the deceased in the presence of his family members, and insulted and demanded the arrears of the money advanced. It appears that, the main thrust of their allegations was against the co-accused and the petitioner was tagged along with them. It is in the statements of the complainant Arti Bihani and the daughter Rajkanya Bihani that one can find a specific allegation regarding the incident dated 2.8.2009. The complainant alleged, “On 2.8.2009 around 7.30 a.m., Natwar Somani from Belapur came to her residence and at that time myself and Anil were sleeping, and the daughters were awake. He directly walked into her bedroom and started addressing Anil indiscreetly – “You have money to purchase household articles, furniture and to make enjoyment, then why don’t you give back the hand loan? Give it as early as possible.” - Anil thereupon pacified him.” Similar 9 Cri.W.P.No.84/2011 version of the incident is found in the statement of Rajkanya. It is this incident which is termed as humiliation instigating the suicide and this appears to have weighed in the mind of the learned Additional District & Sessions Judge, Shrirampur while rejecting the plea of the petitioner for discharge. Whether this incident constituted an instigation to commit suicide is the question which needs to be answered in the present petition. 10. In Sanjay Singh Sengar’s case, there was a quarrel between the deceased and his in-laws over an issue of taking back the wife of the deceased to her matrimonial home and two days thereafter the deceased had committed suicide, leaving a suicidal note putting blame on one Sanjay Sengar, brother of his wife. The Hon’ble Apex Court, while quashing the charge sheet for the commission of offence under Section 306 of the Indian Penal Code, 1860, lodged against Sanjay Sengar, took into account three things, (1) there was no mens rea as the words “abusive language” were uttered in a quarrel or in spur of moment, (2) Suicide was not proximate to the incident of abusive utterances made by the accused, and (3) suicide note suggested that the deceased was in great stress and depressed and he had committed suicide out of frustration. 10 Cri.W.P.No.84/2011 11. The Hon’ble Apex Court, in Surinder Kumar’s case, set aside the order of the High Court quashing the charge sheet under section 306 of the Indian Penal Code, 1860 lodged in the case wherein the suicide was committed 20 days after the victim was indicted of stealing 10 gms. of gold. This judgment suggests that proximity between the act alleged in the suicide is not the only consideration for deciding whether the act alleged is an instigation within the meaning of Section 107 of the Indian Penal Code, 1860 or not. Other factors also play role in understanding the nature of the act. 12. If one looks at Santosh Goenka’s case, it can be seen that, the persistent demands made by the person for recovery of his money from any other person was not equated to an overt act as understood in Section 107 of the Indian Penal Code, 1860. Simplicitor demand for monies lent logically, one can say cannot be equated to any overt act within the meaning of Section 107 of the Indian Penal Code, 1860. However, it needs to be seen whether such demand had built up tremendous pressure so as to instigate the deceased to commit suicide. Taking the allegations as it is, it is not difficult to notice that the deceased had pacified the petitioner and had committed suicide only after Kamlesh Thakkar and Akil paid visit to him in the morning of the next day. Statement of the 11 Cri.W.P.No.84/2011 complainant – respondent No.2 Arti reveals that she had not noticed anything untoward in the next day morning. In fact all of them were to go to the temple the next day morning and he had advised her to go with the daughters to the temple when Kamlesh Thakkar and Akil came to the residence. Utterances made by the petitioner, it appears, had not de-stabilized/ disturbed the mind of the deceased which could be seen from the fact that he was in position to pacify the petitioner. 13. It can also be seen from the statement of Rajkanya Bihani that the petitioner used to visit their home and climb upstairs to meet her father as he belonged to his community. It appears that, petitioner used to visit the residence of the deceased in his absence. This only shows that he was close to the deceased and his relations with the deceased were not only fiduciary but also fraternal. 14. From these patent facts and circumstances, it can very well be understood that the utterances alleged do not constitute the ‘instigation’ within the meaning of Section 107 of the Indian Penal Code, 1860. However, there is material to suggest that he was unauthorised money lender. As regards the offence under Bombay Money Lenders Act, there is enough material against the petitioner 12 Cri.W.P.No.84/2011 in form of the statements and the letter dated 26.8.2009 from the Assistant Register under Money Lenders Act, addressed to the Shrirampur Police Station to communicate that the petitioner is not a licensed money lender. Hence the order : 15. Rule is made absolute. Order dated 31.12.2010, passed by the learned Additional Sessions Judge, Shrirampur rejecting the discharge application filed by the petitioner at Exhibit 20 in Sessions Case No.63/2009 is set aside, subject, however, to the rider that the proceedings under the provisions of Bombay Money Lenders Act shall proceed in accordance with law. The petitioner stands discharged from the offences punishable under sections 306, 506 read with Section 34 of the Indian Penal Code, 1860. However, it needs to be noted that the findings as regards the offences under Sections 306, 506 read with section 34 of the Indian Penal Code are qua the petitioner. ( U.D. SALVI, J. )