Gujarat High Court
Dipak Jayram Viras vs State Of Gujarat on 16 June, 2023
R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 31225 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DIPAK JAYRAM VIRAS
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR. ZUBIN BHARDA FOR MR KISHAN H DAIYA(6929) for the
Respondent(s) No. 2
MR.KISHAN PRAJAPATI(7074) for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 16/06/2023
ORAL JUDGMENT
1. This application is filed under Section 482 of Page 1 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 the Code of Criminal Procedure, 1973 (`Code' for short) for quashing the FIR being I-C.R.No.108 of 2016 registered with Katargam Police Station, Surat for the offences punishable under Sections 306, 504, 506(2) and 114 of the Indian Penal Code.
2. Rule. Learned APP Mr.Joshi waives service of notice for respondent-state and learned advocate Mr.Daiya waives service of notice for respondent no.2.
3. The brief facts leading to filing of this application are such that:
3.1 The allegations levelled in the impugned FIR are to the effect that the deceased has been pressurized by accused no.1 with regard to certain transaction. It is further stated that deceased wrote a note and committed suicide alleging that the accused no.1 used harsh words against the deceased and his brother for repayment of debt. So far as the present applicant is concerned, it is alleged that the present applicant has taken the vehicle of the deceased on account of which the deceased sustained loss. It is thus, the impugned FIR is filed, which is prayed to be quashed by way of this Page 2 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 application.
4. Heard learned advocate Mr.Popat for the applicant, learned APP Mr.Joshi for the respondent no.1-
State and learned advocate Mr.Bharda for learned advocate Mr.Daiya for the respondent no.2-original complainant.
4.1 Learned advocate Mr.Popat for the applicant submitted that no offence is made out against the present applicant as the present applicant is nowhere connected in direct dealing with the deceased. He submitted that the present complaint is filed by the father of the deceased by alleging that some incident of the transaction of the car has taken place in the year 2013 and the deceased committed suicide in the year 2016 and as per the allegation made in the complaint, the car of his son was taken away by one Jatin Parmar-
and Durgesh Rai accused nos.1 and 2 with the help of the present applicant and the amount of that car is not paid to the son of the complainant and also made several demands from the son of the complainant, because of which, the son of the complainant committed Page 3 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 suicide, which is the tenor of the FIR which is not believable in the eye of law.
4.2 Learned advocate Mr.Popat has relied on the judgment in the case of Chitresh Kumar Chopra V/s State (Govt of NCT of Delhi) reported in (2009)16 SCC 605, more particularly, paragraphs 11 to 15 and submitted that no offence is made out in this case under Section 306 read with Section 107 of the Indian Penal Code.
4.3 Learned advocate Mr.Popat has also relied in the case of Sanju @ Sanjay Singh Sengar V/s State of Madhya Pradesh, reported in 2002(5) SCC 371 .
4.4 He has further submitted that Hon'ble Apex Court, in several judgments, considering the aspect that scope of Sections 306 and 107 is required to be considered in a particular manner by considering the aspect of abetment and also considering the aspect of instigation in the facts of each case. He has submitted that, in the present case, there is no proximity found from the bare reading of the FIR between the alleged Page 4 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 incident and any act committed by the present applicant.
Moreover, the instigation or abetment should be eminent and cannot be said that in the facts of the present case, any offence is made out against the present applicant.
4.5 He, therefore, prays to allow this application by quashing the impugned FIR.
5. Per contra, learned advocate Mr.Bharda for the respondent no.2-original complainant submitted that from the allegation itself, there is a suicide note executed by the deceased where the names of all the three accused were found and therefore there is direct role attributed to the present applicants. He submitted that prima facie, offences under Sections 306, 504 are made out against the present applicants. He has relied on the judgment in the case of Navinkumar Hargovindbhai Patel & 2 V/s State of Gujarat & 2 reported in 2017 SCC Online Guj 399, more particularly, paragraphs 2 to 16 . He, therefore, submitted that this application be dismissed.
5.1. He has heavily relied on the judgment of this Court in the case of Rachana Ravindra Jain V/s State of Page 5 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 Gujarat and 1 Others, reported in [2019] 0 Supreme (Guj) 226 and submitted that the present case needs full fledged trial.
5.2. He has relied on the judgment of the Hon'ble Apex Court in the case of Praveen Pradhan V/s State of Uttranchal, reported in [2012]9 SCC 734 , more particularly, paragraphs 14 and 16 of the judgment, and submitted that persistent harassment of deceased and continued illegal demands amounts to instigation and the Court should not exercise powers under Section 482 of the Code.
5.3. He has relied on the judgment of the Hon'ble Apex Court in the case of Munshiram V/s State of Rajasthan, reported in [2018]5 SCC 678 and submitted that the Court should not exercise powers under Section 482 of the Code when the inquiry pertains to allegation made in the FIR is still pending.
5.4. He, therefore, prays to dismiss this application.
6. Learned APP Mr.Joshi for the respondent no.1- Page 6 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 state has submitted that on bare reading of the FIR, offence is made out, more particularly, when prima facie, there is suicide note available as part of the investigation. When the FIR is based on the suicide note and the present applicant is named in the suicide note, prima facie ingredients of Section 306 are satisfied in the facts and circumstances of the present case, this Court should not exercise powers under Section 482 of the Code.
6.1 Learned APP Mr.Joshi relied on the decision in the case of Mahendra K.C. V/s State of Karnataka, reported in 2022(2) SCC 129 and submitted that the Hon'ble Apex Court, has considered Sections 306 and 107 of Indian Penal Code for abetment of suicide and has held that the the powers should not be exercised under Section 482 of the Code without contesting the veracity of the suicide note in question and therefore he has submitted that the present application be dismissed.
7. I have considered the rival submissions and perused the material on record.
Page 7 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023
8. From the bare reading of the impugned FIR, no offence much less the offence under Section 306 of Indian Penal Code is made out. The incident alleged to have occurred in the year 2013 and the suicide has taken place in the year 2016. There is nothing to show the nexus between the two that the incident was continuous one so as to drive the deceased to commit suicide. The presence of mens rea / instigation is necessary ingredient for establishing the offence under Section 306 of Indian Penal Code read with Section 107 of Indian Penal Code, which is missing in this case, further, there is no proximate cause of the incident which would provoke the deceased to commit suicide.
9. At this stage, it is beneficial to refer to the judgment of Hon'ble Supreme Court of India in the case of Arnab Manoranjan Goswami versus State of Mahrashtra and others reported in (2021) 2 SCC 427, where the Hon'ble Apex Court has observed in Paras :
49, 50, 51, 55, 57 and 58 as under :
"49. Before we evaluate the contents of the FIR, a reference to Section 306 of the IPC is necessary. Section 306 stipulates that if a person commits suicide Page 8 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 ―whoever abets the commission of such suicide‖ shallwhoever abets the commission of such suicide‖ shall shall be punished with imprisonment extending up to 10 years17 . Section 107 is comprised within Chapter V of the IPC, which is titled ―whoever abets the commission of such suicide‖ shallOf Abetment. Section 107 provides:
"107. Abetment of a thing.--A person abets the doing of a thing, who--
First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.--A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to 17 306. Abetment of suicide.-- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term Page 9 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 which may extend to ten years, and shall also be liable to fine. PART I 35 cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."
50. The first segment of Section 107 defines abetment as the instigation of a person to do a particular thing. The second segment defines it with reference to engaging in a conspiracy with one or more other persons for the doing of a thing, and an act or illegal omission in pursuance of the conspiracy. Under the third segment, abetment is founded on intentionally aiding the doing of a thing either by an act or omission. These provisions have been construed specifically in the context of Section 306 to which a reference is necessary in order to furnish the legal foundation for assessing the contents of the FIR. These provisions have been construed in the earlier judgments of this Court in State of West Bengal vs Orilal Jaiswal18 , Randhir Singh vs State of Punjab19 , Kishori Lal vs State of Page 10 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 MP20 (―whoever abets the commission of such suicide‖ shallKishori Lal) and Kishangiri Mangalgiri Goswami vs State of Gujarat21 . In Amalendu Pal vs State of West Bengal22 , Justice Mukundakam Sharma, speaking for a two judge Bench of this Court and having adverted to the earlier decisions, observed :
"12...It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable."
51. The Court noted that before a person may be said to have abetted the commission of suicide, they ―whoever abets the commission of such suicide‖ shallmust have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Instigation, as this Court held in Kishori Lal (supra), ―whoever abets the commission of such suicide‖ shallliterally means to provoke, incite, urge on or bring about by persuasion to do anything. In S S Chheena vs Vijay Kumar Mahajan 23, a two judge Bench of this Court, speaking Page 11 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 through Justice Dalveer Bhandari, observed:
"25. 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. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person 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 no option and that act must have been intended to push the deceased into such a position that he committed suicide."
52. Madan Mohan Singh vs State of Gujarat24 was specifically a case which arose in the context of a petition under Section 482 of the CrPC where the High Court had dismissed the petition for quashing an FIR registered for offences under Sections 306 and 294(B) of the IPC. In that case, the FIR was registered on a complaint of the spouse of the deceased who was working as a driver with 23 Page 12 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 (2010) 12 SCC 190 24 (2010) 8 SCC 628 PART I 37 the accused. The driver had been rebuked by the employer and was later found to be dead on having committed suicide. A suicide note was relied upon in the FIR, the contents of which indicated that the driver had not been given a fixed vehicle unlike other drivers besides which he had other complaints including the deduction of 15 days' wages from his salary. The suicide note named the accused- appellant. In the decision of a two judge Bench of this Court, delivered by Justice V S Sirpurkar, the test laid down in Bhajan Lal (supra) was applied and the Court held:
"10. We are convinced that there is absolutely nothing in this suicide note or the FIR which would even distantly be viewed as an offence much less under Section 306 IPC. We could not find anything in the FIR or in the so-called suicide note which could be suggested as abetment to commit suicide. In such matters there must be an allegation that the accused had instigated the deceased to commit suicide or secondly, had engaged with some other person in a conspiracy and lastly, that the accused had in any way Page 13 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 aided any act or illegal omission to bring about the suicide.
11.In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this."
53. Dealing with the provisions of Section 306 of the IPC and the meaning of abetment within the meaning of Section 107, the Court observed: PART I
38. Page 14 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 "12. 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. We are of the clear opinion that there is no question of there being any material for offence under Section 306 IPC either in the FIR or in the so-called suicide note."
The Court noted that the suicide note expressed a state of anguish of the deceased and "cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide." Reversing the judgment of the High Court, the petition under Section 482 was allowed and the FIR was quashed."
55. More recently in M Arjunan vs State (represented by its Inspector of Police)25 , a two judge Bench of this Court, speaking through Justice Page 15 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 R. 25 (2019) 3 SCC 315 PART I 39 Banumathi, elucidated the essential ingredients of the offence under Section 306 of the IPC in the following observations:
"7. The essential ingredients of the offence under Section 306 IPC are: (i) the abetment; (ii) the intention of the accused to aid or instigate or abet the deceased to commit suicide. The act of the accused, however, insulting the deceased by using abusive language will not, by itself, constitute the abetment of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide.
Unless the ingredients of instigation/abetment to commit suicide are satisfied the accused cannot be convicted under Section 306 IPC."
57. Similarly, in Rajesh vs State of Haryana27, a two judge Bench of this Court, speaking through Justice L. Nageswara Rao, held as follows:
"9. Conviction under Section 306 IPC is not sustainable on the allegation of harassment Page 16 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 without there being any positive action proximate to the time of occurrence on the part of the accused, which led or compelled the person to commit suicide. In order to bring a case within the purview of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must 27 Criminal Appeal No. 93 of 2019 decided on 18 January 2019 PART I 41 be proved and established by the prosecution before he could be convicted under Section 306 IPC."
58. In a recent decision of this Court in Gurcharan Singh vs State of Punjab28 , a three judge Bench of this Court, speaking through Justice Hrishikesh Roy, held thus:
"15. As in all crimes, mens rea has to be established. To prove the offence of abetment, as specified under Sec 107 of the Page 17 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 IPC, the state of mind to commit a particular crime must be visible, to determine the culpability. In order to prove mens rea, there has to be something on record to establish or show that the appellant herein had a guilty mind and in furtherance of that state of mind, abetted the suicide of the deceased."
Further, the incident referred to in the FIR is of the year 2013 and the impugned FIR is filed in the year 2016, i.e. after a delay of about three years, for which there is no explanation given.
10. It also transpires from the impugned FIR that except a vague mention that it was with the help of the present applicant, the vehicles were sold, there is no specific allegation against the applicant so as to satisfy the ingredients invoked the Indian Penal Code.
11. In view of the above, this FIR is nothing but an abuse of process of law filed at a very belated stage and the ingredients of Indian Penal Code invoked in the impugned FIR are not satisfied and therefore, the same Page 18 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 deserves to be quashed.
12. Further, it will also be fruitful to mention the judgment of Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -
"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at Page 19 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec.156(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
Page 20 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
13. It is also relevant to refer to the judgment of the Hon'ble Apex Court in the case of Inder Mohan Goswami and Another versus State of Uttaranchal reported in (2007) 12 SCC 1, more particularly para : 23 & 24 thereof, which read as under :
"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the Page 21 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:
[(i) to give effect to an order under the Code;] [(ii) to prevent abuse of the process of court, and] [(iii) to otherwise secure the ends of justice.]
24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."
14. In view of above settled position of law and after considering the facts as alleged in the FIR and Page 22 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023 R/CR.MA/31225/2016 JUDGMENT DATED: 16/06/2023 circumstances of the present case, it transpires that continuation of further proceedings pursuant to the said FIR will cause greater hardships to the petitioners and no fruitful purpose would be served if such further proceedings are allowed to be continued. The Court must ensure that criminal prosecution is not used as instrument of harassment or for seeking private vendetta or with ulterior motive to pressurise accused or to settle the score.
15. Resultantly, this application is allowed. The impugned FIR being I-C.R.No.108 of 2016 registered with Katargam Police Station, District Surat and all the consequential proceedings arising therefrom are hereby quashed qua the present applicant. Rule is made absolute. Direct service is permitted.
(SANDEEP N. BHATT,J) SRILATHA Page 23 of 23 Downloaded on : Mon Jun 19 20:39:27 IST 2023