Gujarat High Court
Vijay Bapurao Shinde vs State Of Gujarat on 16 March, 2021
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/802/2021 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 802 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
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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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VIJAY BAPURAO SHINDE
Versus
STATE OF GUJARAT
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Appearance:
MR R.R. MARSHALL, SENIOR ADVOCATE WITH MR HARDIK A
DAVE(3764) for the Applicant(s) No. 1
DHRUV TOLIYA(9249) for the Respondent(s) No. 1
MR. BHADRISH S RAJU(6676) for the Respondent(s) No.2-Orig.
Complainant.
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE B.N. KARIA
Date : 16/03/2021
CAV JUDGMENT
1. Present applicant is involved in the offence in connection with the FIR being C.R.No.11214032201643 of 2020 registered with Mandvi Police Station, Dist.: Surat for the offence punishable under Sections 306, 506(2), 386, 270, Page 1 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT 271, 201, 120B and 114 of the Indian Penal Code (hereinafter referred to as "the IPC" for short). Therefore, it is requested by the applicant to release him on regular bail by filing this application under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Cr.P.C." for short).
2. Facts of present case may be referred as under:
The complainant is the son of the victim/deceased and engaged in the business of road construction and stone quarry, which is situated in Khanjroli Gam in Mandvi Taluka and is in the name of complainant's father since 1982. As per the prosecution case, on 07.09.2020, at around 04:30 a.m. in the morning, the complainant got a call from his brother informing that the Manager i.e. Sandeepbhai has informed that father has lost, and therefore, the complainant went to the quarry in his car and reached there by 05:45 a.m. and his brother also reached. Thereafter the complainant on searching the quarry along with the Manager and other friends, torch, Page 2 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT chappal and mobile of the father were found from the entrance of the quarry in front of the office. While searching for the father of the complainant, the Manager had informed that at 03:45 a.m. in the morning, father of the complainant had called the Manager and told that when the complainant comes to the office, he will give him the note which is kept in the diary of his father. Therefore, the complainant asked that if the Manager had read the note to which, he denied and handed over the note to the complainant, which was written by the father of the complainant. It was written in the note that father of the complainant had a property of 10218 sq. mtrs. in Adajan, Surat which was sold to accused no.6 viz. Kishorbhai Bhurabhai on 17.03.2015, based on an agreement to sell on a note at Rs.24,03,88,687/ and accused nos.6 and 5 i.e. Kishorbhai Bhurabhai and Kanaiyalal Narola had paid worth Rs.18,00,00,000/ in cash to the father of the complainant on different dates and Rs.3,09,30,584/ by cheques of different banks. Page 3 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT Accused no.6 was the owner of Star Group and on 17.08.2016, a tax raid was made on his premises and based on the note of agreement to sell, there was a tax inquiry on the complainant as well. As a result of the tax inquiry, all the truth was told by the father of the complainant, however, accused no.6 had hidden names of his partners, and therefore, the liability of paying tax of Rs.8,49,49,020/ was on the head of the father of the complainant and further, due to sale deed on the original value, there was additional capital gain tax of Rs.4,80,00,000/ to be paid by the father of the complainant and total liability was Rs.13,00,00,000/ of the father of the complainant. Father of the complainant had talked to accused no.6, whereby he had assured to pay the same. Thereafter, on 30.01.2019, accused no.6 had sent a legal notice against the promise and statement given in income tax to which the father of the complainant had replied through his advocate on 04.02.2019. Thereafter, on 02.01.2020, at around 78 Page 4 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT p.m., Police Officers came to the house of the complainant and asked the father to come to Police Station as Police Inspector (i.e. accused no.1) had called him immediately to which the father of the complainant denied as it was late and his time to have dinner and told that he will come tomorrow. However, the police officials forced him to come, and therefore, the complainant along with his father went to the Police Station where in the office of the Police Inspector, there were two persons viz.
Rajubhai Lakhabhai Bharwad and Hetal Natvarlal Desai (i.e. accused nos.2 and 3), who started to speak badly with the father of the complainant and by then accused no.4 viz. Bhavesh Shawani came and forced him to give a notarized document immediatley in relevance to the disputed land and took them to a notary viz. Hitesh Kanji Solanki at 11:00 p.m. at night, and thereby, threatened them to sign the said documents. Complainant was forced to be the witness therein. Thereafter, on 03.01.2020, they had made a notarized document of Page 5 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT declaration before the Notary viz. Bharat R. Chauhan. However, due to fear, it was not produced anywhere and the partner of accused no.6 i.e. accused no.5 had told the father of the complainant that if the said land is transferred in the name of accused no.2 or any person, he has no objection and had given a written notarized document to that extent. Thereafter, accused no.2 had asked for the same in the end of January, at that time, the complainant had asked for a detailed document in those regards which was denied and told that only normal document will be given. Thereafter, on 04.02.2020, 45, police officers had come to the house to call the father of the complainant, but the mother had denied as the father was not well and was asleep and on the knowledge of the same, the brother of the complainant had sent an application to the S.P., against the same through whatsapp after which the police officers had returned back. Thereafter, on 18.02.2020, accused nos.2, 3, 7 (i.e. present applicant) and accused Page 6 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT no.8 had to the house of the complainant with ready document of satakhat along with possession and showed the signature and videography of the father of the complainant and had told to prepare for sale deed and given cheques amounting to Rs.7,55,00,000/ of different banks and had taken back the prior cheques of other party worth Rs.7,48,00,000/ and told to give paper notice that the said land is not sold to anyone. The same were denied by them as proper documentation was required in order to avoid tax disputes and the prior documentation as to accused no.3. Therefore, a dispute had arisen again and on 30.07.2020, in Bhesna Gam in a farm house, Police Inspector (i.e. accused no.1), who was home quarantined, had called them by sending whatsapp location and on reaching at the location, other accused nos.2, 4, 9 and 10 were present and the complainant and his brother were threatened and a notarized agreement of even lesser value was made and sent to the house of the complainant along with accused nos.2, 3, 4, 9 and Page 7 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT other police officials for signature of father of the complainant along with authority to do paper publication. Therefore, the said publication was done in paper on 01.08.2020. Thereafter, due to less payment and improper documentation, the sale deed was denied by the complainant and accused no.1 (P.I.) had kept the documents with him informing that if he makes the sale deed then only he will give back the papers. Thereafter, the complainant and his father and brother got notice from Rander Police Station and got called for giving reply, but due to fear, they did not go to the Police Station and gave reply in writing. The complainant had told his father on 06th September, to come early next day so as to go to the Commissioner to make a complaint in the matter of land dispute. However, due to the pressure created by the accused persons named in the FIR, since past months, the father of the complainant had committed suicide according to the complainant, in the morning. Therefore, the said FIR came to be filed Page 8 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT subsequently against accused persons as narrated in the FIR in detail.
3. Heard Mr.R.R. Marshall, learned Senior Advocate appearing with Mr.Hardik A. Dave, learned advocate for the applicant, Mr.Manan Mehta, learned APP for the respondent State as well as Mr.Bhadrish S. Raju, learned advocate for the original complainant.
4. It is submitted by learned Senior Advocate for the applicant that the applicant is wrongly involved by the prosecution in the alleged offence, however, he has not committed any offence as alleged in the FIR. It is further submitted that the applicant is arraigned as accused no.7 in the complaint and as per the allegations, he was serving as Police Constable, but not attached with Rander Police Station. Referring the documents produced on record, it is further submitted that present applicant came into picture for the first time on 18.02.2020. That he is not named in the suicide note allegedly written by the deceased. That he was serving with Udhna Police Station and there is no criminal antecedent Page 9 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT against the applicant. It is further submitted that there is no involvement of present applicant in the alleged offence. Learned advocate has also referred the statements of Ravi Nareshbhai Kharadi and Dipak J. Patel. It is argued that the dispute is pertaining to the land transaction and income tax liability with which even as per the case of the prosecution, the applicant had nothing to do with and therefore, there was no motive or intention on the part of the applicant to participate in the alleged offence. That on 18.02.2020, agreement to sell with possession was executed and cheques were replaced of new purchaser. That the said act of execution of agreement to sell with possession was voluntary act on the part of the deceasedfather of the first informant, with a condition that only after fulfillment of condition as mentioned in previous agreement to sell and only after receipt of some bank guarantee like papers for income tax liability, sale deed will be executed. It is further submitted that accompanying co accused, when there was no dispute between deceasedfather of the first informant and other accused persons and even as Page 10 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT per the case of the prosecution itself, it cannot be termed as any illegal act much less illegal act constituting any punishable offence much less offences of abatement to commit suicide. Even it is not a case of the prosecution that the applicant has ever participated in the alleged act of threatening. It is further submitted that no necessary ingredients in the alleged offence punishable under Section 306 of the IPC are made out against the applicant. It is further submitted that there is not whisper about any act of abetment as defined under Section 107 of the IPC and there is no proximity of the alleged act of the commission of the suicide due to which, deceased was not left with any other option, but to commit suicide. That in the chargesheet papers, no such incident is mentioned or happened, in fact, in near proximity of time, which can be termed as abatement. It is further submitted that there is no mens rea to commit offence or any active act or direct act of the applicant which led the deceased to commit suicide. That the applicant is a permanent resident of Surat, and thereby, has property therein and he is not likely to run away in any Page 11 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT case as the investigation is over and chargesheet is filed in the present case and there is no need of the custodial investigation. It is further submitted that in the chargesheet at Page101, the complainant has alleged that when the applicant came to the house of his father for threatening him, he had a revolver in his hand. The Investigating Officer has also made a note at the same page of chargesheet papers that CCTV Footage was examined and installed at the resident of the complainant and C.D was prepared which was produced. That CCTV Footage was checked in the presence of the complainant and panchas as well as the Investigating Officer. At that time, there was no revolver in the hand of the applicant. It was also further observed in the note of the chargesheet papers that no evidence was found during the course of investigation that at the time of visiting the house of the deceased by present applicant, he had visited along with revolver to give threat at the house of the complainant. It is further submitted that no charge of Arms Act was applied by the prosecution. That the applicant is arrested on 25.09.2020, Page 12 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT and thereafter, he is behind the bar for more than six months and the name of present applicant is not disclosed in the suicide note. Hence, it is requested by learned Senior Advocate for the applicant to allow this application by releasing the applicant on regular bail with suitable conditions.
5. While opposing the prayer, learned APP for the respondent State has strongly argued that involvement of present applicant in the offence as alleged by the prosecution is clearly made out by the Investigating Officer. Referring the statement of Dharmeshbhai, it is submitted that meeting was arranged with the deceased and other accused persons by present applicant on 09.09.2020. He has also referred the call details of accused persons and further argued that present applicant was in contact with other accused persons in number of times. That he was in constant contact with other accused persons and he had played active role in commission of the offence. That constant mental torture was given by present applicant to the deceased and in connivance with other accused persons, the applicant is involved in the alleged offence. That criminal Page 13 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT conspiracy was clearly hatched by present applicant with other accused persons. That as serious offence is committed by present applicant, no lenient view may be taken by this Court. Hence, it was requested by learned APP for the respondent State to dismiss present application.
6. Mr.Bhadrish S. Raju, learned advocate appearing for original complainant has vehemently opposed the arguments advanced by learned advocate for the applicant and submitted that from the perusal of the chargesheet papers, involvement of present applicant is clearly made out by the prosecution. That deceased was pressurized by present applicant along with coaccused persons. That in the chargesheet, Section 120B of the IPC is applied by the prosecution and no arguments are advanced on this issue by the applicant. That in the year 2014, agreement to sell was executed with the deceased in connection with the land situated in the village. That the amount was received by the deceased. Thereafter, raid of income tax department was made at the premises of co accused Kishorbhai Bhurabhai. It is further submitted that the Page 14 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT deceased was hit by two different liabilities of tax as well as capital gain. That as per the statement of son of deceased viz. Dharmeshbhai, liability of tax was assessed more than Rs.13,00,00,000/ of the deceased. That the deceased contested tax proceedings. Thereafter, entry of other accused persons namely Rajubhai Bharvad was made and bail application preferred by coaccused Rajubhai Bharvad was withdrawn after filing the chargesheet before the Coordinate Bench of this Court. That in the chargesheet, Section 386 of the IPC is also attracted by the prosecution and original satakhat was dated 07.03.2014 when Kishorbahi had purchased the land and Durlabhbhai Patel sold the land and present applicant along with other coaccused persons suddenly entered into their rights in the land without initiating any civil proceedings. That on 12.02.2018, one satakhat was executed between accused viz. Rajubhai Bharwad and Bhavesh Savani as document was created, and therefore, Section 386 of the IPC was rightly applied by the prosecution. That coaccused viz. Rajubhai Bharvad had given Page 15 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT one complaint to Rander Police Station against Bhavesh Savani and Durlabhbhai on 29.12.2019. Thereafter, Bhavesh Savani had also made one complaint to Police Inspector of Rander Police Station against Durlabhbhai, Jayantbhai Patel and Dharmeshbhai on 02.01.2020. That all of them tried to create their rights wrongly in the disputed land and bogus and concocted documents were created by them. That police did not file any FIR. That on 02.01.2020, deceased and his two sons were taken to Police Station. That Mr. Badana, Police Inspector, is in judicial custody at present and his bail application for regular bail is pending before the Coordinate Bench. That the deceased was forced to make satakhat by police referring affidavit executed by deceased on 03.012020 and it was submitted that it was notarized. That one complaint was forwarded by whatsapp through Police Commissioner by Jayantbhai Patel on 04.02.2020. That Rander Police Station has no jurisdiction to deal with the issue. That present applicant was suspended from service twice by the department that he has called the deceased through private office along Page 16 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT with Rajubhai Bharwad and other police personnel. Thereafter, they went to Rander Police Station and certain documents were forced to sign by the deceased. On 30.02.2020, present applicant, Rajubhai Bharwad and other coaccused persons were found in CCTV Footage as they had come to the house of the deceased. That draft document was prepared showing the amount of Rs.7,50,00,000/ and deceased was compelled to make his signature on a draft document. That again on 18.02.2020, present applicant along with other coaccused persons came at the house of the deceased with an agreement of possession of land showing that it was a forged document and possession of the land was taken from the deceased. It was further argued by learned advocate for the original complainant that on 21.02.2020, son of the deceased was also called at the private office of present applicant. That videography was also made showing that deceased was handing over the possession of the land to the accused persons. Learned advocate for the original complainant has referred the statement of prosecution witness Page 17 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT viz. Dipakbhai Patel and submitted that forcefully possession of the land was taken by Rajubhai Bharwad in presence of the applicant, which is clearly part of criminal conspiracy. He has also referred the statements of Dharmeshbhai and Durlabhbhai and argued that Mr.Badana, Police Inspector has no jurisdiction to investigate the offence or to make any inquiry. That Badana had also sent certain messages through whatsapp from his farm location. Referring statement of Ajitbhai Patel, Deputy Sarpanch, it is argued that CCTV Footage was taken by one Shri Ajaybhai Bhopal. It is clearly a part of conspiracy committed by the accused persons. It is further argued that mental cruelty was given to the deceased by present applicant as he was forced to sign the documents. That coaccused person viz. Rajubhai Bharwad had issued a public notice through his advocate in his newspaper. He has referred the statement of Maheshbhai Patel and has submitted that he has not signed a public notice. That call records of present applicant are produced on record showing interse communication of present applicant with coaccused person in Page 18 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT number of times. That present applicant was present at the house of the deceased when sale of agreement was to be executed and presence was also secured in CCTV Footage collected by the prosecution. That on account of suspension from service, departmental proceedings were initiated against him. That he is involved in other criminal offence also. That panchnama of his office was also prepared. Referring the statement of Dinesh Bhikhabhai Patel, it was submitted that a private office of present applicant is situated within the jurisdiction of Rander Police Station. That application preferred by Rajubhai Bharvad was withdrawn by him and the Trial Court has rightly observed in detail while rejecting the prayer for granting bail. That the complaint was filed before Rander Police Station purposefully although the said Police Station had no jurisdiction with respect to the land in question. That the complaint was filed before Rander Police Station only with a view to extort undue pressure upon the deceased and the family of the deceased from the police officers at Rander Police Station. That in the month of June, Page 19 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT meeting was scheduled at the applicant's office, whereby the applicant took back cheques worth Rs.7,50,00,000/ and issued fresh cheques of Rs.7,50,00,000/ to the deceased. That on account of constant pressure and torture inflicted upon the deceased by the applicant in connivance with the other accused persons to make the deceased part with his rightfully owned property, on 07.09.2020, deceased had committed suicide leaving back a suicide note blaming the accused persons as the persons responsible for the committal of suicide. That the applicant is arraigned as accused no.7 in the FIR and accused no.3 as per the chargesheet. That from call details record, present applicant was in constant touch with other accused persons which is a direct indication of the fact that conspiracy committed in the offence to commit the said offence was being hatched by the applicant along with other coaccused over a long period of time. That role of present applicant clearly establishes the agreement of present applicant and other coaccused persons to commit the offence as alleged by the prosecution. That there is proximate link Page 20 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT between the act of the applicant and the commission of suicide by the deceased since the cruelty and harassment meted out to the victim i.e. Durlabhbhai Patel over a prolonged period of time had left the victim with no alternative, but to put an end to his life. That the applicant is a party to a criminal conspiracy for the offence under Section 120B of the IPC. That the applicant has a criminal history and FIR was registered before Adajan Police Station, Dist.: Surat for the offence punishable under Sections 143, 144, 147, 341, 352, 323 and 502(2) of the IPC, Section 135(1) of the Gujarat Police Act and Section 25(1)(a) of the Arms Act. That if the present applicant is released on regular bail, there is all likelihood that present applicant shall free from justice. Hence, it was requested by learned advocate for the original complainant to dismiss present application.
7. Having heard learned advocates appearing for respective parties and learned APP, at length, and perused the chargesheet papers produced on record by either side, it appears that after completion of the investigation by the Page 21 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT concerned Investigating Officer, in connection with FIR being C.R.No.11214032201643 of 2020 registered with Mandvi Police Station, Dist.: Surat for the offence punishable under Sections 306, 506(2), 386, 270, 271, 201, 120B and 114 of the IPC, chargesheet was filed and Sessions Case No.01 of 2021 is pending. If we peruse the FIR, prima facie, it appears that before entering into the picture by present applicant, on 18.02.2020, following facts were happened.
8. Son of the deceased received a call on 07.09.2020, at around 04:30 a.m. in the morning, the complainant got a call from his brother informing that the Manager i.e. Sandeepbhai has informed that father has lost and therefore, the complainant went to the quarry in his car and reached there by 05:45 a.m. and the brother also reached. Thereafter, the complainant and on searching the quarry along with the Manager and other friends a torch, chappal and mobile of the father were found from the entrance of the quarry in front of the office. While searching the father of the complainant, the Manager informed that at 03:45 a.m. in the morning, the Page 22 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT father of the complainant had called the Manager and informed that when the complainant comes to the office, he will give him the note which is kept in the diary of his father. Therefore, the complainant asked that if the Manager had read the note to which, he denied and handed over the note to the complainant which was written by the father of the complainant. It was written in the note that the father of the complainant had a property of 10218 sq. mtrs. in Adajan, Surat which was sold to accused no.6 viz. Kishorbhai Bhurabhai on 17.03.2015, based on an agreement to sell on a note at Rs.24,03,88,687/ and accused nos.6 and 5 i.e. Kishorbhai Bhurabhai and Kanaiyalal Narola had paid worth Rs.18,00,00,000/ in cash to the father of the complainant on different dates and Rs.3,09,30,584/ by cheques of different banks. Accused no.6 was the owner of Star Group and on 17.08.2016, a tax raid was made on his premises and based on the note of agreement to sell, there was a tax inquiry on the complainant as well. As a result of the tax inquiry, all the truth was told by the father of the complainant, however, accused Page 23 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT no.6 had hidden names of his partners and therefore, the liability of paying tax of Rs.8,49,49,020/ was fixed by the Income Tax Department on the head of the father of the complainant and further, due to sale deed on the original value, additional capital gain tax on Rs.4,80,00,000/ was also fixed on the shoulder of the father of the complainant which comes to Rs.13,00,00,000/ and father of the complainant had talked to accused no.6 in respect of clearing liability fixed by the Income Tax Department and accused no.6 had assured him to pay the same. Thereafter, it appears that on 30.01.2019, accused no.6 had sent a legal notice against the promise and statement given to income tax department to which the father of the complainant had replied through his advocate on 04.02.2019. Thereafter, on 02.01.2020, at around 78 p.m., some Police Officers came to the house of the complainant and asked the father to come to Police Station as Police Inspector (i.e. accused no.1) has called him immediately, but it was refused by the father of the complainant as it was late and informed that he will come Page 24 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT tomorrow. However, the police officials forced him to come to Police Station, and therefore, the complainant along with his father went to the Police Station where in the office of the Police Inspector, there were two persons viz. Rajubhai Lakhabhai Bharwad and Hetal Natvarlal Desai (i.e. accused nos.2 and 3), who started to speak badly with the father of the complainant and by then accused no.4 viz. Bhavesh Shawani came and forced to immediately give a notarized document in relevance to the disputed land and took them to a notary viz. Hitesh Kanji Solanki at 11:00 p.m. at night and they threatened them to sign the said documents and the complainant was forced to be the witness therein. Thereafter, on 03.01.2020, they had made a notarized document of declaration before the Notary viz. Bharat R. Chauhan. However, as per the contents of the FIR, due to fear, it was not produced anywhere and the partner of accused no.6 i.e. accused no.5 had told the father of the complainant that if the said land is transferred in the name of accused no.2 or any person, he has no objection and had given a written notarized Page 25 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT document to that extent. Thereafter, accused no.2 had asked for the same in the end of January, which was denied by the father of the complainant and on 04.02.2020, 4 to 5, police officers had visited the house to call the father of the complainant, but his wife had denied as the father was not well and was asleep and on the knowledge of the same, the brother of the complainant had sent an application to the S.P., against the same through whatsapp after which the police officers had returned back. Upto this moment, applicant had never come into picture in the alleged offence in any transaction of the land nor was in contact with the deceased or any other accused persons. For the first time, as per the prosecution case, on 18.02.2020, accused nos.2, 3, 7 (i.e. present applicant) and accused no.8 had visited the house of the complainant with ready document of satakhat along with possession and showed the signature and videography of the father of the complainant and had told to prepare for sale deed and given cheques amounting to Rs.7,55,00,000/ of different banks and had taken back the prior cheques of other Page 26 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT party worth Rs.7,48,00,000/ and told to give paper notice that the said land is not sold to anyone. The same was denied by them as proper documentation was required in order to avoid tax disputes and the prior documentation as to accused no.3. Again on 30.07.2020, in Bhesna Gam in a farm house, the dispute was arisen and accused no.1 was home quarantined and had called the complainant by sending whatsapp location and on reaching at the location, other accused nos.2, 4, 9 and 10 were present and the complainant and his brother were threatened and a notarized agreement of even lesser value was made and sent to the house of the complainant along with accused nos.2, 3, 4, 9 and other police officials for signature of father of the complainant along with authority to do paper publication. As per the complaint, the said publication was done in paper on 01.08.2020. Thereafter, due to less payment and improper documentation, the sale deed was denied by the complainant and accused no.1 (P.I.) had kept the documents with him informing that if he makes the sale deed then only he will give back the papers. Page 27 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT Thereafter, the complainant and his father and brother got notice from Rander Police Station and got called for giving reply, but due to fear, they did not go to the Police Station and gave reply in writing. The complainant had told his father on 06th September, to come early next day so as to go to the Commissioner to make a complaint in the matter of land dispute. From the affidavit filed by the Investigating Officer, it appears that present applicant was not in contact with the deceased based on the call details record (CDR). As per the CDR, the applicant had allegedly met the other accused persons and the complainant lastly in the month of March 2020, and thereafter, he had not met with anyone of them. The deceased committed suicide in the month of September 2020. It further appears that applicant is not named in the suicide note written by the deceased. Prima facie, from the contents of the FIR and in the chargesheet papers, it appears that the dispute is pertaining to the land transaction and income tax liability with which even as per the case of the prosecution, present applicant has nothing to do with and Page 28 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT therefore, there cannot be motive or intention or reason on the part of the applicant to participate in the alleged offence. If we consider the case of the prosecution, the applicant was to accompany other accused persons on 18.02.2020 and agreement to sell was executed and cheques were replaced of new purchaser. The said act of execution of agreement to sell with possession can be said voluntary act on the part of the deceased - father of the first informant with a condition only after fulfillment of condition as mentioned in previous agreement to sell and only after receipt of some bank guarantee like papers for income tax liability, sale deed will be executed. Accompanying coaccused at the residence of the deceased, there was no dispute between deceasedfather of the first informant and other accused persons. From the chargesheet papers also, it appears that applicant had never participated in the alleged act of threatening in the farm house of accused no.1. From the FIR and chargesheet papers, prima facie, no ingredients for the purpose of constituting alleged offence punishable under Section 306 of the IPC is made out Page 29 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT against the applicant. For the purpose of alleged offence punishable under Section 306 of the IPC, abatement as defined under Section 107 of the IPC is must. Abatement has to be in near proximity of the alleged act of the commission of the suicide as well as it has to be so grave in nature due to which deceased was not left with any other option, but to commit suicide. From the chargesheet papers, it appears that in the present offence, there is no such incident mentioned or happened in fact in near proximity of time which can be termed as abatement. Further, there is no act on the aprt of the applicant which amounts to abatement, no abatement in near proximity of the time so as to attract the alleged offence as narrated in the chagesheet is found from the chargesheet papers. For the purpose of constituting alleged offence punishable under Section 306 of the IPC, there has to be a clear mens rea to commit the offence and it also requires an active act or direct act which would led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he Page 30 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT would commit suicide. Abetment as defined under Section 107 of the IPC has to be satisfied for the purpose of constituting alleged offence punishable under Section 306 of the IPC which is not the case in this present matter. Ingredients of alleged offence are not fulfilled against present applicant.
9. In the facts and circumstances of the case and considering the nature of allegations made against the applicant in the FIR, I am of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
10. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an FIR being C.R.No.11214032201643 of 2020 registered with Madvi Police Station, Dist.: Surat on executing a personal bond of Rs.10,000/ (Rupees Ten Thousand Only) with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that the applicant shall;
[a] not take undue advantage of liberty or misuse liberty;
Page 31 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT [b] not act in a manner injurious to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
[e] furnish latest and permanent address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the learned Sessions Court concerned;
11. The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this Page 32 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021 R/CR.MA/802/2021 CAV JUDGMENT stage, made by this Court while enlarging the applicant on bail.
Rule is made absolute to the aforesaid extent. This order be communicated to the applicant through Jail Authorities by the registry as well as learned Sessions Court concerned.
(B.N. KARIA, J) rakesh/ Page 33 of 33 Downloaded on : Tue Aug 31 19:40:14 IST 2021