CNR MHNS010045162020 CR. No. 566/2020, registered with Upnagar Police Station, Nashik, District : Nashik for the offences punishable under sections 306 read with section 34 of the IPC .
Order below Exh.1 in Cri. Bail Application No.1658 of 2020.
{ Suman Sahebrao Borade and Sahebrao Shivram Borade Vs. State }
This is an application under section 438 of the Criminal Procedure Code ( for short ‘ the Cr.P.C.’ ) filed by the applicants apprehending their arrest in Crime No. 566/2020 for the offences punishable under section 306 read with section 34 of the Indian Penal Code (for short ‘the IPC’) registered with Upnagar Police Station for grant of prearrest bail.
2.Brief facts giving rise to this application can be narrated as follows.
Deceased Kishor Dharma Chavan was a building contractor. On 18/11/2020 at about 10.00 a.m. his son Pravin Kishor Chavan received a phone call from one Smt. Pardeshi that his father is omitting and feeling giddy. The informant Pravin Kishor alongwith his family members rushed to the spot. His father Kishor Dharma told him that he has consumed poison, as Borade and Smt. Pardeshi had harassed him due to give and take of money. He was admitted to Dr. Vasantrao Pawar Medical Hospital, Adgaon Nashik. He expired on 21/11/2020.
3.On 24/11/2020 informant Pravin found a diary in the pocket of his father deceased Kishor. It was written in the handwriting of deceased Kishor, on a page in that diary that he is committing suicide as applicant no.1 and four persons in their house have pressurized him. The names of one Sharad Jadhav, Smt. Pardeshi, Bala Ghusale, Vishal Ghusale, Chaudhari Tiles, Teja Marble were also mentioned in the suicide note that they have harassed him on count of give and take of money. Accordingly, FIR
was lodged at Upnagar Police Station on 27/11/2020 on the basis of information given by informant Pravin.
4.The applicants contend that they have not committed any offence. They are retired persons suffering from several ailments. They are taking treatment of Dr. Vijay Karade. It is further contended that prior to 2 ½ years the deceased Kishor Dharma Chavan had undertaken construction of their house. Accordingly, construction agreement dated 29/10/2018 was executed in between them. From time to time amounts were paid to deceased Kishor either by cheque or in cash. Till 15/03/2020 an amount of Rs.5,88,000/ was accepted by deceased Kishor and it was agreed on his part to complete the construction till 20/04/2020.
5.It is further contended that deceased Kishor failed to keep his promise the applicants time to time reminded him and asked about the pending construction work. However, deceased Kishor had never completed it. On 17/08/2020 deceased Kishor assaulted applicant no.1 and outraged her modesty. On 20/08/2020 written complaint was filed at police station against deceased Kishor. Deceased Kishor was called at the police station on 20/08/2020, he promised before the police that he will complete the work within next 2 ½ months but it was not completed. On 22/11/2020 the applicants learnt that deceased Kishor has committed suicide.
6.The innocence of applicants is submitted on the grounds that they are falsely implicated in this crime. They have not abeted the suicide of deceased. They have not committed any act or illegal omission with an intent that deceased Kishor would commit suicide.
They have not harassed deceased Kishor at any point of time.
Applicant no.1 is age old and she is suffering from blood pressure, diabetics and arthritis, gastritis and heart disease. Applicant no.2 is also suffering from heart disease and has 100% blockages. Medical reports are submitted. They have no criminal antecedents. They are rooted in society. There is no need of custodial interrogation. They are ready abide with any condition imposed by this court. Hence, anticipatory bail may be granted.
7.In response to the show cause notice the respondent State appeared and filed its reply at Exh.6. It is contended that offence is serious, investigation is incomplete. Investigation with the accused is necessary. They have not produced the documents on record. Hence, anticipatory bail may not be granted.
8.Learned Advocate Mr.Walzade has submitted along with the line of his contentions. He has additionally submitted that the offence under Section 306 of the IPC is not at all attracted. To buttress his contention he has placed reliance on Rahul Raj Singh V/s. The State of Maharashtra Anticipatory Bail Application No.661 of 2016 and Ramesh Someshwarrao Tayade and other V/s. The State of Maharashtra, Criminal Application No. 865 of 2015. He has further submitted that the copy of agreement is given to the police by the applicants when they were called for at Upnagar Police Station. On the whole he has submitted to grant anticipatory bail to the applicants.
9.Per contra, Ld. APP Mrs. Bhide has opposed the submissions. She has submitted that the applicants are not on death bed. The documents are not collected in evidence. Investigation is incomplete. Interrogation with the applicants is necessary to be done. The case laws are distinguishable. Hence, the anticipatory bail application may be rejected.
10.The prima facie role of the applicants is necessary to be ascertained. On going through the FIR it reveals that due to the pressure of Suman Borade and her four family members on count of give and take of money deceased Kishor has committed suicide.
However, no overt act on the part of the applicants is mentioned in the suicide note or in the FIR.
11.It is mentioned in the FIR that the construction work of the applicants was undertaken by the deceased Kishor. Therefore, the fact that deceased Kishor was doing the construction work of applicants is admitted. In this context if we peruse the copy of agreement filed at Exh.3/1 it reveals that construction agreement had taken place between applicant no.1 and deceased Kishor. It also reveals that an amount of Rs. 5,88,000/ were accepted by deceased Kishor till 16/03/2020 and no amount was remained to be paid. Deceased Kishor has admitted to complete the construction work. As per the copy of complaint dated 20/08/2020 filed to the Police Commissioner Nashik City the applicant has mentioned the above facts and incident on 17/08/2020 that deceased Kishor assaulted her and outraged her modesty and refused to repay the amount.
12.Considering the FIR as well as police papers, prima facie there is no allegation of a positive act on the part of the accused in aiding or instigating or abetting the deceased to commit suicide.
13.In the case of Ramesh Someshwarrao Tayade, cited supra, relied on by the applicants the Hon’ble Division Bench of Bombay High Court has referred to the ratio in the case of Seema
Ajay Bhoosreddy V/s. The State of Maharashtra 2012(2) Mah. Law Journal (Cri) 459, as under :
“18. It can thus, be clearly seen that for proceeding further with the trial against the accused for an offence punishable under Section 306, it is necessary for the prosecution to at least, prima facie, establish that the accused had an intention to aid or instigate or abet the deceased to commit suicide. In the absence of availability of such material, the accused cannot be compelled to face trial for the offence punishable under Section 306. As held by the Apex Court, an abetment involves mental process of instigating the person or intentionally aiding the person for doing of a thing. Without a positive act on the part of the accused in aiding or instigating or abetting the deceased to commit suicide, the said person cannot be compelled to face a trial. Unless there is clear mens rea to commit the offence or an active act or direct act which led the deceased to commit suicide seeing no option or the act intending to push the deceased into such a position, the trial against the accused under Section 306 cannot be permitted.”
14.In the case of Ramesh Tayade (cited supra) it is further held as under:
“If in the light of the aforesaid legal position the material on record is perused on its face value, it can be seen that except the statements that the son of nonapplicant no.2 had borrowed some amount from the applicant no.2 and that a notice had been issued by one Nilesh Bhetalu seeking repayment of Rs. 70,000/ coupled with threats of life being given, there is no material to even prima facie establish that the applicants had either an intention to aid or instigate or abet Purushottam to commit suicide. There is neither any active or direct act on the part of the applicants which led said Purushottam to commit suicide. There is neither any instigation nor any intentional act done which compelled the son of nonapplicant no.2 to commit suicide.”
The above ratio is applicable to the present case as in the instant case also, there is no material prima facie that the applicants had an intention to aid or instigate or abete deceased Kishor to commit suicide.
15.In the case of Rahul Raj Singh, cited supra, relied on by the applicants it is held that
“To constitute the offence under Section 306, it is necessary for the Court even at the stage of anticipatory bail to find out whether prima facie case of abetment as per the ingredients of section107 of Indian Penal Code is made out or not. There should be instigation or conspiracy or a person should intentionally aid that the deceased should commit suicide. It is necessary to show whether the accused was having mens rea that he wanted deceased to commit suicide. Harassment, suspicion, disputes, quarrels, jealousy, vengeance, ego can be the reasons to commit suicide. However, to constitute the offence under Section 306 what is required is an abetment. There should be such an act or illegal omission to show that a person has instigated or he provoked or incited or encouraged to do the act of
suicide. Mental element plays significant role in criminal law. Under Explanation 2, the person does something in order to facilitate commission of that act is an abettor.
To facilitate commission of that act means to make it easier or to help. How a person will react to a situation is unpredictable. Sensitivity differs from person to person, does the reaction. Every suicide has cause but all the causes cannot be labelled as abetment. Therefore, while assessing abetment, the Judge has to take the objective view guided by section 107 of the Indian Penal Code. The harassment or torture should be of such a degree that it really left no option and drove a person to commit suicide. An individual may carry suicidal traits, or may be very emotional or may be very egoist or be
jealous or vindictive. Such emotions may overpower the individual leading him to take drastic step to kill himself or herself. Under such circumstances, unless the mensrea is brought on record, prima facie it cannot be said that it is an abetment.”
The above ratio is applicable to the present set of facts.
16.The second aspect which is necessary to be considered is the need of custodial interrogation. It is on record that the bottle of poison as well as the suicide note is recovered. The agreement of construction between the applicant no.1 and deceased Kishor is produced on record. It is also submitted that it was given to the police also by the applicants. Therefore, this is not the case where custodial interrogation is necessary for recovery of any muddemal.
17.The ailments of the applicants and record of their medical history is filed. The age of applicants is 63 and 65 years respectively. They have no criminal antecedents. They are residing on their address given. They are rooted in society. There are no circumstances to infer that they would flee from justice.
18.Hence, considering the totality of circumstances, nature and gravity of accusation, primafacie no active role or participation in crime, no necessity of custodial interrogation, no criminal antecedents of the applicants, and no circumstances apparent that applicants would flee from justice, this is a fit case to grant anticipatory prearrest bail to the applicants on certain terms and conditions. Resultantly, I proceed to pass following order.
ORDER
1.Application is hereby allowed.
2.Applicants namely Suman Sahebrao Borade and Sahebrao Shivram Borade be enlarged on bail on
executing personal bond of Rs.25,000/ each with one or two sureties in like amount in the event of heir
arrest in C.R. No.566/2020 registered with Upnagar Police Station.
3.They shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as dissuade them for disclosing such facts to the Court or to any police officer.
4.They shall make themselves available for interrogation by the Investigating Officer as and when required.
5.They shall not leave India without previous permission of the Court.
Dictated and pronounced in open Court.
Samarendra Digitally signed by Samarendra Prakashrao Prakashrao Naik Naik Nimbalkar Nimbalkar
Date: 2020.12.09 16:10:23 +0530 ( S.P.Naik Nimbalkar ) 09.12.2020. Addl. Sessions Judge,
Nashik.