1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRI.WRIT PETITION NO.805 OF 2009 Surekha d/o Narayanrao Deshpande .. Petitioner versus The State of Maharashtra and ors. .. Respondents WITH WRIT PETITION NO. 861 OF 2009 Shivraj s/o Vishwanath Menkudale .. Petitioner versus The State of Maharashtra and anr. .. Respondents Shri Santosh S.Jadhavar, Advocate for petitioner in Writ Petition No.805 of 2009. Shri P.K.Joshi, Advocate for petitioner in Writ Petition No.861. Shri B.V.Wagh, APP for Respondent-State in both the writ petitions. Shri A.R.Borulkar and Shri H.F.Pawar Advocates for Respondent No. 2 in Writ Petition Nos.of 2009 and 861 of 2009 respectively. 2 Coram: P.R. Borkar J. Date : Nov. 7, 2009. P.C. 01. Rule. By consent of parties rule made returnable forthwith and matter is finally disposed of. 02. Both these writ petitions are directed against the F.I.R. dated 10.8.2009 lodged by complainant Saroja w/o Rajabhau Bansode registered as Crime No.81 of 2009 with Rural Police Station, Ambajogai for offences punishable under Section 306 read with section 34 of Indian Penal Code and under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. 02. The FIR contains allegation that Rajabhau Bansode, who was husband of complainant Saroja, was working as a teacher in Zilla Parishad High School at Radi, Taluka Ambajogai, District Beed. 3 They belong to 'Chambhar' caste. For two months prior to filing of complaint on 10.8.2009 the complainant Saroja found her husband under tense and therefore she asked him reason for the same. At that time, Rajabhau is said to have told her that Shivraj Menkudale Head Master (petitioner in Criminal Writ Petition No.861 of 2009), Smt. Surekha Narayan Deshpande (petitioner in Criminal Writ Petition No.805 of 2009) and Asmita Kumatekar were causing him mental harassment by referring to his caste and getting more work done from him. Whenever he refused to do more work, he was insulted by them by using castic word "Chambhardya" and troubled him by saying that nobody is threatening him and asked whether he would like to be in service or not. According to complaint, Surekha Deshpande and Asmita Kumthekar were threatening Rajabhau of involving him in a false case on the charge of violating modesty and damaging his confidential record. Whenever Rajabhau complained to Head Master Shivraj Menkudale, latter was making aspersions on caste towards Rajabhau and rebuking him to behave 4 properly. It is further stated in the complaint that regarding said ill-treatment / harassment, Rajabhau gave representation to the said Head Master on 3.8.2009 but on reading it, the Head Master tore the same and thereafter took Rajabhau to his (Rajabhau's) house and he tore the representation of Rajabhau given in the school and advised Rajabhau not to make any complaint. Head Master Menkudale is alleged to have told Rajabhau that his children were small and asked whether he wanted to continue service or not and thereafter he also tore the chits which were in the pocket of Rajabhau in the presence of complainant Saroja. 03. It is further alleged that on 7.8.2009 when the complainant Saroja was at Ambajogai, her relative Ramchandra Lokhande came to her house and informed that Rajabhau informed him on cell phone that because Baliram Jogdand (the husband of accused Asmita Kumatekar) had threatened to kill him (Rajabhau, he consumed poison. Immediately Saroja rushed to S.R.T.R. hospital where Rajabhau was admitted for treatment. At that time, the 5 mouth of Rajabhau was smelling of insecticide. Rajesaheb Somwanshi, another teacher told complainant Saroja that Rajabhau had given him a suicidal note and he handed over the same to Saroja, wherein Rajabhau has stated that due to threat accorded by Baliram Jogdand, he was committing suicide. Rajabhau expired on 10.8.2009 in the morning and the complaint is registered on the same day at about 1.45 p.m. 04. Heard learned counsel for respective parties in both the writ petitions. 05. It is argued by Shri S.S.Jadhavar Advocate for petitioner in writ petition 805 of 2009 that as per the suicidal note of Rajabhau, it was Baliram Jogdand who had given threats and only his name was disclosed as the person due to whose threat, suicide was committed by Rajabhau. He further argued that under the circumstances, the petitioner, whose name does not appear in the suicidal note, cannot be held liable and the FIR against the petitioner deserves to be quashed. 6 06. It is argued that the father of Surekha - petitioner in writ Petition No.805 of 2009 expired on 8.7.2009 at Parbhani and, therefore, she was on leave from 9.7.2009 to 23.7.2009 and was at Parbhani and as such she was not in her school at Ambajogai on the alleged day of incident and therefore there was no possibility of abetment of the suicide by her. Advocate Shri Jadhavar also argued that the deceased Rajabhau was teaching for 5th to 7th standard whereas petitioner Surekha was teaching for standard 9th and 10th. In view of this, according to learned counsel, there was no conflict of interest between the two or any occasion for Surekha to ask the deceased to do her or more work. Learned Advocate also submitted that no details of previous incident of harassment were given. 07. Shri S.S.Jadhavar for petitioner Surekha relied upon judgment of the Supreme Court in the matter of Netai Dutta vs. State of W.B. AIR 2005 S.C. 1775. He argued that the deceased Rajabhau is 7 said to have consumed poison in the school and all those who have taken him to the hospital are outsiders and, therefore, the question arises as to how these outsiders knew about the incident that occurred in the school. 08. Advocate Shri P.K.Joshi for Shivraj Menkudale-petitioner in Writ Petition No.861 of 2009, advanced his submissions on the same line as that of Advocate Shri S.S.Jadhavar for petitioner in Writ Petition No. 805 of 2009. Additionally, he submitted that writ petitioner Shivraj Menkudale as a Head Master has to maintain peace and healthy atmosphere and, therefore, he tried to intervene in the quarrel between the deceased and other teachers and sort out their differences. Therefore, according to Advocate Shri Joshi, Shivraj Menkudale merely attempted to persuade the deceased not to lodge complaint against his colleagues and the same would not amount to instigating the deceased to commit suicide. He also argued that the Head Master Shivraj Menkudale was away from Ambajogai on the date of incident as 8 for four days i.e. from 7.8.2009 to 11.8.2009 he had been to Wardha to attend agricultural seminar and as such inference cannot be drawn that he had abetted the suicide. Advocate Shri Joshi submitted that at the most the only person whose name is mentioned in the suicidal note will be responsible and F.I.R. naming others is afterthought and exaggerated and, therefore, it should be quashed against Petitioner Shivraj Menkudale. 09. Advocate Shri Borulkar for Respondent No. 2-original complainant Saroja relied upon in paragraph 108 in the case of State of Haryana vs. Bhajanlal AIR 1992, 604 which are relevant for our purpose as those lay down the law and guide-lines. Paragraph 108 reads thus:- "108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra- ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and 9 reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds opf cases wherein such power should be exercised. (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegation in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the un-controverted allegation made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 10 (4). Where, the allegation in the F.I.R. do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 05. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code of the concerned Act (under which a criminal proceeding is instituted) to the institution of and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 10. Advocate Shri Borulkar further submitted that there is no delay in lodging the complaint inasmuch as immediately after attempt to commit suicide the deceased was taken to hospital where 11 he was attended by wife-complainant and after he expired in the hospital on 10.8.2009 at about 10.00 a.m., at about 1.45 p.m. on the same day the complaint is lodged. It is also submitted that the FIR prima facie discloses offence and investigation into all details is necessary. He further, submitted that the petitions are filed at pre-mature stage since the investigation is not complete. 11. Advocate Shri H.F. Pawar also argued on the same line as that of Advocate Shri Borulkar and submitted that the writ petitions are filed at a premature stage. Investigation is required to be carried out and in the circumstances the FIR cannot be quashed and set aside. 12. Shri B.V.Wagh, learned A.P.P. submitted that though the suicidal note discloses name of only one person i.e. Baliram Jogdand, still it is a small note of one line and other details given by the complainant are required to be investigated before drawing any conclusion in favour or against 12 the accused persons named in the complaint. He also argued that the FIR is not encyclopedia so as to contain all the details and prayed for dismissal of the writ petitions. 13. In the case of Netai Dutta (supra), though there was a suicide note, absolutely no allegation was made against the appellant in it. It is observed that he had not caused any harm to the deceased nor was any way responsible for delay in paying salary to the deceased Pranab Kumar Nag. The deceased was very much dissatisfied with the working conditions at the work place, but there was no reference to any particular act or incident wherein the appellant Pranab Kumar was alleged to have committed any willful act instigating or resulting into commission of suicide by the deceased. So, in the set of those facts, it was held that the criminal proceedings against appellant therein should be quashed. 14. In the present case, the FIR which is extensively reproduced hereinabove makes out at 13 prima facie case against both the petitioners. It is detail account of all antecedent events. The submissions made by learned counsel for the petitioners herein can be considered only after investigation is complete. In this case, suicidal note contains only one sentence without disclosing any more details and in the FIR complainant has disclosed whatever had happened during two months prior to the incident which ultimately resulted in commission of suicide by Rajabhau. 15. Having given anxious thought to all the submissions advanced by learned counsel for respective parties before me, I am of the considered opinion that this is not a case wherein FIR should be quashed, but this is a case requiring further investigation which is also in the interest of the petitioners herein. Whatever had happened prior to the commission of suicide could be gathered only during investigation. In this view of the matter, in my opinion, both the writ petitions deserve to be and are accordingly dismissed. Rule in both petitions discharged. 14 16. At this stage Advocate Shri S.S.Jadhavar submitted that the protection granted to his client by order dated 15.9.2009 may be extended for a period of one week so as to enable the petitioner to move appropriate application for anticipatory bail. Prayer granted, protection granted vide order dated 15.9.2009 is extended by one week. pnd/criwp805.09 (P.R.BORKAR, J.)