Current Trends In Law: Aspect of mens rea By Adv. R.S. Agrawal

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Justice Uday Umesh Lalit and Justice, at the Supreme Court, have ruled in the judgment of the case- Narayan Malhari Thorat v. Vinayak Deorao Bhagat and Another, delivered on November 28, 2018, that the Nagpur Bench of the Bombay High Court  was not justified in entering into question whether the first respondent had the requisite intention to aid, instigate or abate the commission of suicide.

          At this juncture, when the investigation was yet to be completed and charge-sheet, if any, was yet to be filed, the HC ought not to have gone into the aspect whether there was aspect of mens rea (requisite mental element or intention) was seen anytime on the part of the first respondent.

          The appeal in this case was directed against the judgment and order delivered by the Nagpur Bench of the Bombay High Court on March 28, 2016,allowing criminal application 380/2015 preferred by the respondent and thereby quashing the proceedings instituted against him as per FIR 35/2015.

          The FIR was lodged with the Police Station Washim on February 14, 2015pursuant to the information received from the appellant. It was alleged that the daughter and son-in-law of the appellant were teachers in a village, in a Zilla Parishad school where the first respondent was also a teacher, who used to call on the mobile of the daughter of the appellant to harass her. Despite efforts on the part of the husband to persuade him not to do so, the respondent continued to do so repeatedly.

          On February 9, 2015, there was a verbal altercation between the two and on February 12, 2015, the appellant’s son-in-law, Sanjay committed suicide leaving a suicide note in Marathi, the English translation of that reads as under:

                             “Sir Police Station Officer, I humbly request that my family life has been ruined by Vinayak Bhagat  & therefore he should not be pardoned this is my humble request & he should be hanged till death this is my  last wish”

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          After the crime was registered, the first respondent had preferred an application for anticipatory bail which was rejected by the Principal District & Sessions Judge, Washim on February 21, 2015. The matter was carried further by filing criminal application in the HC. The prayer was rejected by the HC on April 7, 2015.

          The view taken by the HC was challenged through a special leave petition but the Supreme Court rejected the challenge on April 29, 2015finding no merit in that SLP.

          The first respondent, thereafter, filed criminal application in the HC under section 482 Cr.P.C. seeking quashing of the FIR registered in response to the complaint filed by the appellant, for the offence punishable under section 306 IPC. By way of interim relief, stay of further proceedings in connection with the Crime was also sought. It is a matter of record that the investigation in the crime has not been concluded. The challenge raised by the first respondent was accepted by the HC.

           After referring to the facts that the first respondent used to call on the mobile of the daughter of the appellant and that there were heated exchanges between his son-in-law and the first respondent, the HC observed as under:

          “There is no material whatsoever even of a prima facie nature to establish that the applicant had either an intention to aid or instigate or abet Sanjay to commit suicide. There is no reference to any active or direct act on the part of the applicant which led said Sanjay to commit suicide.

          “Similarly, there is neither any instigation nor any intentional act done which compelled the son-in-law  of non-applicant no. 2 to commit suicide. Even the chit found in the pocket of the deceased does not contain any such material to indicate any instigation or abetment on the part of the applicant herein that could be treated as having led Sanjay to commit suicide.”

          This decision of the HC and the order quashing the FIR were under challenge in this case before the Supreme Court. Submission on behalf of the  appellant was that the HC was not justified in entering into questions whether the record prima facie established that the respondent had requisite intention in order to bring the matter within the confines of section 306 IPC and in quashing the FIR in exercise of jurisdiction under section 482 Cr.P.C.

          On the other hand, the first respondent’s counsel relied upon the Supreme Court’s decisions in the cases – Netai  Dutta v. State of W.B. -(2005) 2 SCC 659, M. Mohan v. State represented by the Deputy Superintendent of Police –(2011) 3 SCC 626 and;  State of Kerala and Others v. Unnikrishnan Nair and Others – (2015) 9 SCC 639 in support of his submission that in exercise of  jurisdiction under section 482 Cr.P.C. the  HC was justified in quashing the FIR.                                                                                                                                                                                                  Turning to the facts of the case, the Supreme Court has pointed out that there are definite allegations that the first respondent- Vinayak Bhagat would keep on calling the wife of the victim – the son-in-law of the appellant on mobile and keep harassing her, which allegations are supported by the statements of the mother and wife of the victim recorded during the investigations.        

        The record shows that 3-4 days prior to the suicide by the son-in-law of the appellant, there was a altercation between the victim and the first respondent.

           In the light of these facts, coupled with the fact that the suicide note made definite allegation against the first respondent, the HC was not justified in entering into the question of mens rea on the part of the first respondent in instigating the suicide.

           Seeing merit in the submissions advanced on behalf of the appellant, the Supreme Court set aside the judgment and order under appeal and allowed this appeal. Since the investigation into the matter was stalled as a result of the petition under section 482 Cr.P.C., The Court has directed the concerned authorities to complete the investigation as early as possible.

          The Court has stated that it has not expressed any opinion on the merits of the case, which shall be considered at the appropriate stage and allowed the appeal.

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