Full Judgment
V.M. Deshpande, J.
1. Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsel for the respective parties.
2. The facts giving rise to the present application are as under:
(a) Applicant no.1-Priti and applicant no.2-Mukund are sister and brother. Non applicant no.2 is father of Ravindra Bhange. Marriage between applicant no.1-Priti and Ravindra was solemnized on 03.06.2013.
(b) After four months of marriage, Priti lodged report with Police Station, Ladkhed against her husband Ravindra. Non applicant no.2-Shankarrao, her father in law, Shobha her mother in law and Ajay, her brother in law on the allegation that in the marriage parents of Priti gave Rs.3,00,000/- in cash and also various household articles. After marriage, for first 20 days, she was treated nicely. Thereafter, she went to her parental house at Digras for some days and on her return to her matrimonial house, there was a demand of Rs.5,00,000/- to her by the accused persons. Ultimately, the ill treatment became unbearable. Therefore, on 08.07.2013, Priti called the applicant no.2-Mukund by making a phone call. To him also, when he reached to her matrimonial house, a demand was made and she was driven out of her matrimonial house. On these assertions, the crime was registered against non applicant no.2 in the present case and husband of Priti, vide Crime No.222/2013 for the offence punishable under Sections 498-A, 506, read with Section 34 of the Indian Penal Code.
(c) In the year 2014, applicant no.1-Priti filed maintenance proceeding under Section 125 of the Cr.P.C. against her husband Ravindra in the Court of J.M.F.C. Darwha as Misc. Criminal Application No.14/2014. In the said application, it was asserted by the applicant no.1 that from 08.07.2013, she is residing separately from her husband Ravindra, which fact is also admitted by Ravindra while contesting Misc. Criminal Application No.14/2014.
(d) On 24.08.2015, applicant no.1-Priti filed application under Section 408 of the Cr. P. C. for transfer of Misc. Criminal Application No.14/2014 from Darwha Court to Digras Court. The said application was moved before District Judge, Yavatmal.
(e) On 27.12.2015, an FIR is lodged by non applicant no.2 against the applicant with Police Station, Ladkhed. The crime is registered as Crime No.178/2015 for the offence punishable under Section 306 read with Section 34 of the IPC. According to the FIR lodged by non applicant no.2, on 20.11.2015 when Ravindra had been to the District Court, Yavatmal in respect of the enquiry regarding the application filed on behalf of applicant no.1 under Section 408 of Cr. P. C., that time the applicant met Ravindra and uttered that today the stay in respect of the proceedings before the Digras Court is granted. We will see you at Digras and one day you will be killed by us. According to the FIR, these facts were narrated to the non applicant no.2 by Ravindra himself when he reached to his house. According to the FIR, therefore, Ravindra was under tension and on 21.11.2015 when the matter was fixed at Darwha Court, he left the house but since he was not found there, non applicant no.2 made a telephone call to Ravindra. In the meanwhile, non applicant no.2 got a mobile call from one Jairam from whom it was disclosed that Ravindra has committed suicide by jumping into the well of one Shankar Mahalle. These are the allegations made in the FIR.
(f) By preferring the present application, the applicants are seeking quashing of the FIR No.178/2015, filed by non applicant no.2 for the offence under Section 306 read with Section 34 of the IPC.
3. We have heard Mr. J.A. Malnas, learned counsel for the applicants, Mrs. Geeta Tiwari, learned A.P.P. for non applicant no.1 and Mr. A.B. Mirza, learned counsel for non applicant no.2.
4. According to the learned counsel for the applicants, even taking the allegations in the complaint lodged by non applicant no.2, no case is made out for the offence under section 306 of the IPC. He further submits that the allegations made in the complaint are without any substance. He submits that as a matter of fact, the applicant has no role whatsoever in commission of suicide of Ravindra. He, therefore, submitted that this Court should exercise the powers under Section 482 of the Cr.P.C. and prayed for quashing of the FIR.
5. Per contra, Mr. Mirza, learned counsel for non applicant no.2 submitted that the application under Section 9 of the Hindu Marriage Act for restitution of conjugal rights was filed by the deceased Ravindra. He submitted that on the basis of the affidavit filed on behalf of non applicant no.2 that the proceedings against Ravindra and non applicant no.2 under Section 498-A, 506 read with Section 34 of the IPC were filed against them by applicant no.1-Priti falsely. He submitted that that due to the threat extended by the applicant, the deceased got frightened and fear has developed in his mind and, therefore, he committed suicide. The learned A.P.P. also supported the prayer of Mr. Mirza, learned counsel for non applicant no.2 for dismissal of the present application.
6. The factum of lodging of various proceedings by applicant no.1 against the deceased Ravindra is an admitted position. Nothing can be attributed against the applicant no.1 for filing the proceedings. The proceedings filed by the applicant no.1 against Ravindra and non applicant no.2 are still pending. Therefore, submission on behalf of the non applicant no.2 that the proceedings filed by the applicant no.1 are false in nature, holds no water in the absence of any judicial verdict.
7. The law as to what are the requirements to constitute an offence punishable under Section 306 of the IPC is no more res integra. The law is very well crystalized by the Hon'ble Apex Court in the catena of cases including in the cases of Sanju alias Sanjay Singh Sengar vs. State of Madhya Pradesh, reported in 2002 Cri.L.J. 2796 ; Madan Mohan Singh vs. State of Gujrat and another, reported in (2010) 8 SCC 628 ; and in the case of S.S. Chheena vs. Vijay Kumar Mahajan reported in 2010 All MR (Cri) 3298 (S.C.).
8. In order to bring out an offence under Section 306 IPC specific abetment as contemplated by Section 107 IPC on the part of the accused with an intention to bring about the suicide of the person concerned as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306 IPC.
Abetment involves a mental 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. For securing conviction 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 to option and that act must be intended to push the deceased into such a position that he commits suicide.
From the FIR and from the reply field by the prosecution, it is clear that the action attributed against the applicants cannot be held as an abetment to Ravindra to commit suicide.
9. Their Lordships of the Apex Court has held that for permitting the trial, the proceeding against the accused for the offence punishable under Section 306 of the IPC, 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 absence of availability of such material, the accused cannot be compelled to face the trial for the offence punishable under Section 306 of the IPC. Unless there is a clear mens rea to commit offence or active act or direct act, which led the deceased to commit suicide seeing no option or the act intending to put the deceased into the said position, the trial against the accused under Section 306 of the IPC, in our considered view, would be the abuse of process of law.
10. In that view of the matter, we are of the considered view that the continuation of the criminal proceedings against the applicant would result in abuse of process of law. Consequently, we allow the present application. Rule is made absolute in terms of prayer clause (a) of the application.