A complainant filing number of proceedings as per law against someone cannot be booked under section 306 of the Indian Penal Code which penalises abetment to suicide only because the proposed accused, later on commits suicide, held the Bombay High Court recently while observing that if such a complaint in such circumstances is prosecuted, people involved in criminal activities will never face action for their wrongdoings. 

Sitting at the Aurangabad seat, single-judge Justice Rajesh Joshi while quashing the FIR lodged against Congress worker and advocate Sadashiv Gayake, noted that he was booked under section 306 after former Congress MP Suresh Patil committed suicide in February 2019 and named the petitioner as one for 'harassing' him by filing multiple criminal cases. 

The judge noted that the Gayake had initiated numerous criminal proceedings against Patil over the last two decades, particularly over the functioning of the District Cooperative Bank of which both of them were members. The complaints were made qua their individual roles in the bank, the judges noted, while observing that it is always open for any member or competent person to institute proceedings if any irregularity is found to have been committed or any misconduct is noticed.

The judge noted that the deceased was acquitted from the said proceedings on the ground of 'benefit of doubt' and that the acquitting court made no observations against Gayake for instituting 'malicious' proceedings or something to this effect, as claimed by the Patil family. 

The judge in his September 11 order, said that what the petitioner intended or sought to achieve by his acts is more important in such cases rather than what is perceived by the deceased

"In case the contention of the informant is accepted that filing of number of proceedings as per law, would amount to abetment to suicide committed by person against whom such proceedings are initiated, would lead to a situation that any person who consistently is involved in the criminal activities or violation of the provisions of law either in individual capacity or in the capacity of post held by him, could never be prosecuted. There would be thus license to such person to commit illegality as the complainants would be held responsible in case he commits suicide in future," Justice Joshi held. 

The bench pointed said that it is important to consider whether it would be proper to prosecute the person who legitimately invokes provisions of law to take exception to illegalities, irregularities, offences etc. committed by another person.

The judge further noted that on the day when Patil committed suicide, petitioner had lodged a complaint in the morning with regards to some incident that took place to him, however, Patil committed suicide and the complaint by petitioner was converted into an FIR only in the night hours naming the deceased as one of the accused. The other litigation or allegedly malicious proceedings lodged by petitioner against the deceased were at least 20 years old, which culminated in the acquittal, the bench noted. 

"There is no evidence to show the knowledge of the deceased with regard to filing of complaint by Petitioner with police, much less any complaint against him. Therefore, the act of filing of complaint by the Petitioner on fateful day can not be considered as an act of instigation to commit suicide. In any case, it was constitutional right of the Petitioner to report the incident happened with him to police. Since there is record to support occurrence of such incident, no malafides can be attributed in that regard against the Petitioner. Right to justice under Article 21 of the Constitution of India, is indefeasible right of a victim, i.e. Petitioner. Thus, his act to approach police station to record his complaint, by no stretch of imagination could be termed as offence by connecting the same with death of deceased," Justice Joshi held. 

In the present case, the judge said the conduct as well as the intention of the Petitioner appeared to be bonafide so as to protect his own rights and interest of the Bank of which he is a member, by taking recourse to the appropriate proceedings under law.

"In the absence of any positive act intended to lead the deceased end his own life, no mens rea can be attributed to the Petitioner. In absence of any evidence to show that Petitioner intended to drive deceased to commit suicide or acts of Petitioner were of such nature that would lead a person to end his life, no offence of abetment of suicide has been made out against the Petitioner. He, therefore, cannot be compelled to undergo rigours of the criminal trial. Consequently, petition deserves to be allowed," the judge opined.

With these observations the bench quashed the FIR.

Appearance: 

Advocate SG Ladda appeared for the Petitioner.

Additional Public Prosecutor SB Narwade represented the State.

Senior Advocate RS Deshmukh along with Advocates Meenal Deshmukh, RR Jaiswal VA Chavan appeared for the Complainant. 

Case Title: Sadashiv Ambadas Gayake vs State of Maharashtra (Writ Petition 503 of 2019

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