The main legal point established in the judgment is the requirement of mens rea for abetment and the need for direct incitement to constitute abetment by instigation.

Rule. By consent, Rule made returnable forthwith.

2. By consent, heard finally forthwith.

3. The petitioner is one of the accused - Accused no.3 in Sessions Case No.4 7 of 2012, pending before the Court of Sessions at Nashik. There are totally five accused in the said case, including the applicant. The allegation against the applicant, and the other accused is that they have committed an offence punishable under section 306 of the IPC read with section 34 of the IPC. The petitioner and the other accused had applied for discharge, as contemplated under section 227 of the Code of Criminal Procedure (for short 'the Code'), but the discharge application was rejected by the learned Addl. Sessions Judge before whom the trial of the case is pending. Being aggrieved thereby, the petitioner has approached this Court invoking its constitutional jurisdiction and inherent powers. According to the petitioner, there is no case at al1 for proceeding against him, and that the proceedings against him, therefore, deserve to be quashed.

4. I have heard the learned counsel for the petitioner. I have heard the learned APP. With their assistance, I have gone through the petition, and the annexures thereto.

5. I have also glanced through the case diary which has been made available for my perusal by the learned APP.

6. The petitioner and other accused are alleged to have abetted the commission of suicide by one Shivaji Gade.

7. The circumstances leading to the death of the said Shivaji Gade, as appearing from the prosecution case itself, are as follows:

8. Shivaji Gade was in service as a teacher at Dr. Rajendra Prasad Madhyamik Ashramshala, Shenit. The petitioner, accused no.1 - Milind and accused no.2 - Shamrao, were all working as teachers in the same school. One Babybai Jadhav (accused no.4) was also working in the said school as a cook. On 1st January 2011, in the midnight, the deceased went to the house of the said Babybai Jadhav. According to the case of the prosecution, he had gone to demand water, but according to Babybai Jadhav, he had behaved indecently, and had demanded sex from her. Babybai Jadhav was, therefore, scared and escaped from the house. She spent some part of the remaining night in the Buddha Vihar, situated nearby. On the next day, she made a complaint against Shivaji Gade to the Head Master of the said Rajendra Prasad Prathamik Va Madhyamik Ashram Shala, and later, also to the Secretary of the Satya Niketan Sanstha. A departmental enquiry into the matter was held, and minor punishment was inflicted upon the said Shivaji Gade. This happened on 15th February 2011.The petitioner and the accused nos. 1 and 2 were the members of the enquiry committee.

On 24th February 2011, said Shivaji Gade died by falling from a train. On 4th March 2011, Smt. Meenabai, wife of Shivaji Gade lodged a report with the police alleging that Shivaji Gade was being treated improperly by the petitioner and the other accused; and that a false complaint had been lodged against him by the accused no.4 Baby Jadhav, and that due to humiliation felt on that count, and the punishment inflicted on him, Shivaji Gade had committed suicide. According to her, therefore, the commission of suicide by the said Shivaji Gadc was abetted by the petitioner and other accused.

9. It is not clear, in the first plac, that Shivaji Gade indeed committed suicide. Whether the death was suicidal or accidental, is not clear. However, the claim is that letters written by Shivaji Gade were found after four days, and that from the contents of the said letters, the death of Shivaji Gade can be believed to be suicidal.

10. However, even if one proceeds on the basis that the death of Shivaji Gade was suicidal, there is a fundamental defect in the prosecution case. In view of this, I do not think it is not necessary to go deeper into the factual aspects of the matter, though a prima facie evaluation of the material collected by the police in the course of investigation is permissible,