MP 1 WP1613_11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1613 OF 2011 Suhas Vasant Alagat and others ... Petitioners Versus State of Maharashtra and another ... Respondents Mr. J. S. Kini, Advocate i/b. Mr. Suresh Dubey for Petitioners. Mr. Deepak Thakare, Advocate for the Respondent No.2. Mr. Y. M. Nakhwa, APP for the State. CORAM : B. R. GAVAI, J. WEDNESDAY, JULY 06, 2011 P. C. : Rule. Rule made returnable forthwith. Heard by consent. 2. By way of present petition, the petitioners pray for quashing the proceedings pending before the learned Sessions Judge, Mumbai in case No. 402/2011 for the offences punishable under Sections 498-A, 406, 306 read with Section 34 of the Indian Penal Code. 3. The petitioner No.1 was married to one Kajal who is the daughter of the respondent No.2 herein on 14th June 2006. There was one daughter namely Arya, born out of the said wedlock. Deceased Kajal gave birth to the second child on 4th June 2010. On 10th July 2010, the deceased Kajal poured kerosene and admitted to put herself on flame along with the new born son. According to the complainant-respondent No.2, she was immediately taken to the hospital wherein she was declared death. On 10th July 2010, an accidental death came to be registered. However, subsequently on 16th July 2010 on the complaint made by the respondent No.2 father, the aforesaid crime for the offence MP 2 WP1613_11 punishable under Sections 498-A, 406 and 306 read with Section 34 of the Indian Penal Code came to be registered. Pursuant to the investigation, the charge-sheet is also filed. 4. The petitioners i.e. the husband of the deceased and the other relatives of the petitioner No.1 have approached this Court by invoking the extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India for quashing the said proceedings. An affidavit-in- reply has been filed on behalf of the respondent No.2 stating therein that the complaint came to be filed by him under mental stress due to unbearable pain since his daughter had died. He, however, states that since the petitioners have agreed to transfer the valuable property mentioned in paragraph 6 in the name of minor children Arya and Aryan, he is interested in seeing his grandchildren's interests protected rather than the petitioners being prosecuted. 5. Mr. Nakhwa, the learned APP vehemently opposes the petition on the ground that the case involves serious offence punishable under Section 306 of the Indian Penal Code. 6. Insofar as the offence punishable under Sections 406 and 498-A is concerned, in view of the law laid down by the Apex Court in the case of B.S.Joshi v. State of Haryana reported in (2003) 4 SCC page 675, there should be no difficulty in quashing the said proceedings. However, insofar as the offence under Section 306 is concerned, it cannot be said to be an offence of a personal nature inasmuch as it would be an offence against the society, and therefore, for considering as to whether the proceedings for the said offence also should be quashed or not, a careful scrutiny would be necessary. MP 3 WP1613_11 7. Undisputedly, even from the perusal of the complaint filed by the respondent No.2, it can be seen that he has stated that since the deceased was being ill-treated, she had returned to her parents house in the month of April 2010. She has given birth to the child on 4th June 2010 at Mumbai. Even according to the complainant, after the delivery, relatives i.e. the petitioners came to meet the deceased and the new born after 15 days. That date would be roughly around 20th June 2010. It is alleged that after remaining there for half an hour and threatening that unless the amount of Rs. 5 lakhs and the car were not brought, she should not return back to her matrimonial home, the accused left the house of the complainant. The alleged incident has occurred on 10th July 2010 i.e. almost after a period of 20 days after the petitioners had met the deceased. The F.I.R. in question is lodged after 5-6 days i.e. on 16th July 2010. 8. The Apex Court in the case of Sanju alias Sajay Singh Sengar Vs. State of M.P. reported in (2002) 5 SCC page 371 had an occasion to deal with the scope of Section 306 of the IPC. The Apex Court in the said case was considering a case wherein a deceased had committed suicide and the appellant before the Court was charged with abetment. The material which the prosecution relied in the said case was that the deceased had committed suicide as the direct result of quarrel that had taken place on 25th July 1998. However, the suicide in question was committed on 27th July 1998. The Apex Court, therefore, found that the alleged quarrel of 25th July, 1998 cannot be said to be a direct and proximate cause for the incident which had taken place on 27th July 1998. MP 4 WP1613_11 9. In the present case also, at the most, the prosecution can rely on the incident which has taken place around 20th June 2010 i.e. when the petitioners had gone to the house of the complainant to meet the deceased Kajal and new born child. Even if accepted that some quarrel took place on the same day, it cannot be said to have nexus with the incident that has occurred on 10th July 2010 i.e. almost after a period of twenty days. Some observations of the Apex Court in the said judgment would be relevant. “Even if one accepts the prosecution story that the appellant did tell the deceased “to go and die”, that itself does not constitute the ingredient of “instigation”. The word “instigate” denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite.” 10. It would also be relevant to refer to a recent judgment of the Apex Court in the case of Gangula Mohan Reddy Vs. State of Andhra Pradesh reported in (2010) 1 SCC page 750. In the said case also, it was the allegation of the prosecution that the appellant-accused had harassed his servant, and that, the said servant had committed suicide as he could not bear the harassment meted out to him. The accused was convicted by the Trial Court which was upheld by the Appellate Court. Reversing the same, the Apex Court observed thus, “17. Abetment involves a metal process of instigating 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 intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.” It can, thus, clearly be seen that the Apex Court has held MP 5 WP1613_11 that for convicting a person under Section 306, an active act or direct act which led the deceased to commit suicide must be present or such an act must have been intended to push the deceased in such a position that he committed suicide. In the present case, except the incident which is taken place around 20 days prior to the date of suicide, no positive or direct act has been attributed to the present petitioner. 11. It can, therefore, be seen that though according to the prosecution, some quarrel took place on 20th June 2010 and the incident has occurred on 10th July, 2010, the said quarrel cannot be said to be of such a nature, which can be said to be an instigation to commit suicide since almost a period of twenty days has elapsed therefrom. Even according to the prosecution, the petitioners had not met the deceased during that period. As such, even if the matter goes for trial for the offence punishable under Section 306, the conviction would be an impossibility. 12. In that view of the matter, and moreover when the parties have settled the matter and have agreed to do so in order to ensure the future of the minor children, I find that this is a fit case wherein this Court could in exercise of its jurisdiction under Article 226 of the Constitution of Indian and also under Section 482 of the Code of Criminal Procedure quashes the proceedings including the one under Section 306. 13. In the result, rule is made absolute in terms of prayer clause (a). (B. R. GAVAI, J)