Gujarat High Court
Kiritsinh Lakhubha Vala (Darbar) vs State Of Gujarat & on 9 February, 2017
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/1562/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT
AHMEDABAD
CRIMINAL MISC. APPLICATION (RECALL) No. 1562 of 2017
In
CRIMINAL MISC. APPLICATION No. 20623 of 2013
With
CRIMINAL MISC. APPLICATION No. 20623 of 2013
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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KIRITSINH LAKHUBHA VALA (DARBAR)....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance :
Mr JV VAGHELA, ADVOCATE for the Applicant(s) No. 1
Mr KP RAVAL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE Mr. JUSTICE B.N. KARIA
9th February 2017
CAV JUDGMENT
1. Criminal Misc. Application No. 1562 of 2017 is filed Page 1 of 22 HC-NIC Page 1 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT by the applicant-original accused in FIR, being C.R-I No. 71/2013 lodged with Upleta Police Station, District Rajkot [Rural] for the offence punishable under Section 306 and 506 (2) of the Indian Penal Code, for recall of the Oral Order dated 23rd December 2016 passed in Criminal Misc. Application [For Quashing & Setting- aside FIR/Order] No. 20623 of 2013, whereby, the interim relief granted in favour of the applicant-original accused in terms of para 5 [b] of the petition came to be vacated, in absence of non representation of the case on behalf of the petitioner.
2. Short facts of Criminal Misc. Application No. 20623 of 2013, as it unfolds, read thus -
2.1 Complainant-Shri Pratikbhai, who is son of the deceased Shantilal Desai has lodged a complainant on 15th November 2013 against the applicant herein alleging that the applicant had committed suicide due to constant threats administered on him for repaying the borrowed money. It is the case of the respondent no. 2 herein that his father borrowed some money from Page 2 of 22 HC-NIC Page 2 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT the applicant herein on interest, which he could not repay in time and therefore, he was persistently being threatened by the applicant to face dire consequences in case of failure to repay the amount. Finding no alternative, the father of the complainant consumed poison to end his life on 13th November 2013. While the father of the complainant was being shifted to a Hospital, the mother of the complainant found a suicide note containing serious allegations against the applicant herein. Based on these facts, a complainant came to be lodged by the respondent no. 2 herein against the present applicant before Upleta Police Station, Rajkot, being I-C.R No. 71 of 2013 for the offence punishable under Sections 306 and 506 (2) of the Indian Penal Code on 15th November 2013. 2.2 Before the matter could be investigated by the Police, the applicant-accused moved Criminal Misc. Application No. 20623 of 2013 under Section 482 of the Code of Criminal Procedure, 1973 seeking quashment of the complaint, being I-C.R No. 71 of 2013 registered Page 3 of 22 HC-NIC Page 3 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT with Upleta Police Station, District-Rajkot [Rural], which is impugned herein.
3. Heard learned advocate Shri J.V Vaghela appearing on behalf of the applicant and Shri K.P Raval, learned APP appearing on behalf of the respondent-State of Gujarat.
4. It is vehemently urged by learned advocate Shri Vaghela appearing on behalf of the applicant that a false FIR is lodged by the respondent no. 2 involving the applicant in a serious offence. It is further urged that in the FIR nowhere it is stated as to when and what amount was borrowed by the deceased from the applicant, and therefore, the say of the complainant is not probable. That, the complaint was lodged after three days of the incident and no sufficient explanation is given by the complainant with regard to inordinate delay, though the suicide note was allegedly recovered and received by the family members on the said date of incident. That, in fact, the applicant had never given any amount to the deceased and therefore, there is no Page 4 of 22 HC-NIC Page 4 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT question of demanding the same back. That, in fact, the deceased has demanded money from the applicant, as the deceased was facing some financial difficulties and the applicant had refused to give the amount, and therefore, due to pressure on financial count, the deceased has committed suicide. That, there are good family relationship between the petitioner and the deceased. That, the deceased had performed duty as the father for doing Kanyadhan of the wife of the son of the petitioner on 18th May 2013. That, no date and time is stated in the impugned FIR regarding the alleged incident and only general allegations are made involving the applicant. That no provision of Sections 306 and/or 107 of the Indian Penal Code are attracted, as the applicant has not abetted in commission of offence. That, even if it is assumed that the applicant had demanded any money back from the deceased, no offence under Section 306 IPC is made out, and therefore, since the said FIR being false, the same deserves to be quashed.
Page 5 of 22 HC-NIC Page 5 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT 4.1 Learned advocate for the applicant further urged that the applicant is being unnecessary dragged into the criminal proceedings by the complainant with a personal vengeance so that the applicant could not lodge any complaint against the respondent no. 2. He further urged that though a suicide note was allegedly found from the dead body, no complaint was immediately lodge, however, the same came to be belatedly lodged on the instigation of the village persons, and therefore also, the said FIR deserves to be quashed and set-aside. Hence, it was requested by Shri Vaghela, learned advocate for the applicant to quash and set-aside the impugned FIR in the interest of justice by allowing this Application and thereby restoring ad interim relief granted earlier by this Court vide Oral Order dated 24th December 2013 and confirmed vide Oral Order dated 18th June 2014.
4.2 To buttress his submissions, learned advocate for the applicant has relied on the following two decisions of the Apex Court viz., [a] in cases of Netai Dutta v. Page 6 of 22 HC-NIC Page 6 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT State of West Bengal, reported [2005] 2 SCC 659 and in Sanju @ Sanjay Singh Sengar v. State of Madhya Pradesh, [2002] 5 SCC 371.
5. Per contra, learned APP Shri K.P Raval appearing for the respondent-State strongly opposed the arguments made for and on behalf of the applicant by learned advocate Shri JV Vaghela. It was vehemently urged by learned APP that due to interim relief granted by this Court in favour of the applicant, investigation in the offence was completely hampered and it was not possible for the Investigating agency to proceed ahead into the matter. He urged that in a serious offence of this nature, in fact, the Investigating agency ought to have been permitted to proceed in the investigation to find out the truth. It is further submitted that in the complaint itself lodged by the respondent no. 2 clear allegations are made by the complainant that due to constant pressure and threats given by the applicant to the deceased-the father of the complainant, demanding money, the deceased was not in a position to manage Page 7 of 22 HC-NIC Page 7 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT the funds to return the same to the applicant which were borrowed on interest from the applicant and in absence of there being any alternate solution but to commit suicide, the deceased choose to end his life by consuming poison. That, clear allegations are made by the complainant in his complaint against the present applicant that time and again threats were administered upon the applicant and last such call was made on 13th November 2013 demanding money, otherwise to face dire consequences, and therefore, the deceased was compelled to take ultimate step of his life by consuming poison. That, at present, the correctness of the allegations or otherwise is not required to be ascertained by the Court, since prima facie case is made out by the complainant. Whatever the allegations are made in the complaint would require support only if investigation is permitted by the Court by vacating the ad interim relief granted by the Court. Learned APP added that the State had already preferred Criminal Misc. Application [for Vacating Page 8 of 22 HC-NIC Page 8 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT Interim Relief] No. 13078 of 2014 requesting this Court to vacate the ad interim relief granted, however, the Court vide Oral Order disposed of the said application with a direction to the registry to list Criminal Misc. Application No. 20623 of 2013 for hearing on 24th September 2014. He further added that unfortunately the main Criminal Misc. Application, being Criminal Misc. Application No. 20623 of 2013 could not proceed further and as a result investigation into the offence could not be carried out by the Investigating agency. 5.1 Under the circumstances, it was urged by learned APP Shri K.P Raval appearing for the respondent-State to dismiss both these applications.
6. Having heard learned advocates appearing on behalf of the respective sides and having given anxious thought and consideration to various contentions put forward by the respective parties, it appears that the son of the deceased ie., the respondent no. 2 herein has lodged a complaint against the present applicant. As per the averments made in the complaint, deceased Page 9 of 22 HC-NIC Page 9 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT had borrowed certain sum of money from the applicant and thereafter he was not in a position to repay the same to the applicant, and therefore, applicant had administered threats upon the deceased and as a result of which, he has committed suicide by consuming poison. It is further averred in the complaint that while taking the deceased to the Hospital, mother of the complainant found a suicide note wherein certain allegations are made by the deceased against the present applicant. In the suicide note, it is clearly mentioned under the handwritings of the deceased that some amount was received by the deceased from the applicant on interest which he was unable to repay to the applicant. On the day of incident, at about 11:15 hours, a telephone call was made by the applicant to the deceased threatening him to repay the money, failing which he will have to face serious consequences. It is mentioned in the suicide note by the deceased that due to his mismanagement and administration of threats by the applicant, he was not in position to cope- Page 10 of 22 HC-NIC Page 10 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT up with the situation, and therefore, it was decided to end the life. This Court has noticed that some photographs of marriage ceremony are produced on the record by the applicant to show that there was good family relationship with the deceased, since the deceased has performed duty as a father by doing Kanyadhan of the wife of the son of the applicant 18th May 2013. At present, the alleged relationship as stated by the applicant with the deceased cannot be admitted by accepting the correctness of the photographs showing good relations before the alleged incident. In the suicide note, it is clearly mentioned that the money borrowed by the deceased were demanded back by exerting pressure and administering threats to the deceased. Not only that, it appears that threats were administered upon the deceased to even be ready to face dire consequences in case of failure to repay the money with interest, and therefore, finding no alternative, the deceased consumed poison and committed suicide.
Page 11 of 22 HC-NIC Page 11 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT
7. It appears form the record that this Court was pleased to grant ad interim relief in favour of the applicant at the initial stage, which was confirmed by this Court vide Oral Order dated 18th June 2014. Hence, the investigation could not proceed ahead. As argued by Shri KP Raval, learned APP appearing for the respondent-State, no investigation was carried out in the offence, though serious allegations have been made against the applicant herein.
8. As the entire matter stands only at the stage of registration of the case and the investigation into the matter has not at all proceeded with on account of the order of stay granted by this Court, it is not necessary for the Court at this stage to embark upon an inquiry whether the allegations in the FIR are reliable or not and thereupon to render a finding whether any of the allegations is proved. This is a matter which can be examined only by the concerned trial Court, after entire material is placed before it on a thorough investigation. This Court is not called upon to examine the truth or Page 12 of 22 HC-NIC Page 12 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT otherwise of each of the instances of the alleged offence indicted in the complaint in snippet form and thereafter string them together and express any opinion either way, since any view or opinion by this Court may affect the case of either party or cripple the course of investigation.
8.1 The Apex Court in the case of State of Haryana & Ors. vs. Bhajanlal & Ors., reported in 1992 Suppl. [1] SCC 335 has framed certain guidelines for exercising powers by the High Courts under Section 482 of the Code of Criminal Procedure, 1973. In the words of the Apex Court, "The following categories of cases can be stated by way of illustration wherein the extra ordinary power under Article 226 or the inherent powers under Section 482 CrPC can be exercised by the High Court 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 channelized and inflexible guidelines or rigid formulae and to give an Page 13 of 22 HC-NIC Page 13 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT exhaustive list or 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 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 Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 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 offence without an order of a Magistrate as contemplated under Section 155 (2) of the Page 14 of 22 HC-NIC Page 14 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT 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.
[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."
8.2 The powers of quashing a criminal proceeding should be exercised very sparingly and with Page 15 of 22 HC-NIC Page 15 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT circumspection and that too in the rarest of the rare cases. The extraordinary or inherent power do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. The Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint.
9. Looked at from all angles, prima facie, the allegations made in the FIR constitute a cognizable offence, requiring a thorough investigation into the matter.
10. In the present case, the fact situation is different from that in the case of Netai Dutta v. State of West Bengal [Supra], relied upon by the learned advocate for the petitioner, and therefore, the said authority will not be of help to the applicant.
10.1 As per the facts given in a case decided by the Apex Court [Supra], the deceased was an employee of a company who was transferred to another work-site, but did not join there. Some two years later in point of Page 16 of 22 HC-NIC Page 16 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT time, he sent a letter of resignation expressing his grievance against stagnancy of salary and unfortunate circumstances. The Company accepted his resignation, however, on 16th February 2001, his dead body was found near the railway line. Subsequently, on the basis of a suicide note allegedly recovered from the dead body, the brother of the deceased lodged a complaint with the police and consequently, a case under Section 306 IPC was registered against the appellant and some others. The suicide note indicated that the appellant herein and one PC had engaged him in several wrongdoings and that he had reported certain incidents to them. He also expressed dissatisfaction at the working conditions in the office and at the work sites. The appellant filed a petition under Section 482 CrPC for quashment of the said criminal proceedings, but the High Court rejected that petition. The appellant therein then filed an appeal by special leave before the Apex Court, which was allowed. In the cited case, there were no allegations made by the complainant against the Page 17 of 22 HC-NIC Page 17 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT appellant-accused in any way of harassing his brother in the suicide note. The case was registered against the appellant therein without any factual foundation. The contents of the alleged suicide note were not making out any offence against the appellant therein, and therefore, the Hon'ble Supreme Court was of the view that there was no ground to proceed against the appellant and it was a fit case where extra ordinary powers under Section 482 CrPC could be invoked. In the instant case, the deceased has made clear allegations against the present applicant of administering threats to immediately return the borrowed funds with interest failing which to face the dire consequences.
11. In the case of Sanju @ Sanjay Singh Sengar v. State of Madhya Pradesh [Supra], while allowing the appeal, held and observed that, "the suicide was not proximate to the quarrel though the deceased was named in the suicide note. Hence, the suicide note was not the direct result of the quarrel when the appellant used abusive language and told the deceased to go Page 18 of 22 HC-NIC Page 18 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT and die.". The Court observed that, ".a plain reading of the suicide note would clearly show that the deceased was in great stress and depressed. One plausible reason could be that the deceased was without any work or a vocation and at the same time indulged in drinking as revealed from the statement of the wife. He was a frustrated man." In this case, the investigating agency was permitted to investigate the offence. The Hon'ble Supreme Court while considering the case also considered and relied upon the statement of the brother of the deceased made under Section 161 CrPC when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abuse him with filthy words. Thus, a plain reading of the suicide note in the cited case clearly suggested that such a note was not the handiwork of a man with a sound mind and sense. Moreover, in a statement given under Section 161 CrPC before the investigation officer, the wife of the deceased had stated that the deceased always Page 19 of 22 HC-NIC Page 19 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT indulged in drinking wine and was not doing any work, and therefore, in the totality of the material available on the record and the facts and circumstance of that case, the Apex Court allowed the appeal moved by the appellant therein and thereby quashed the proceedings.
12. In the instant case, however, investigation was not permitted to the investigating agency, and therefore, no conclusion can be arrived at by this Court, at this stage, by accepting the prayer for quashing and setting aside the impugned FIR registered against the applicant by the respondent no. 2 herein.
13. Therefore, in light of the aforesaid facts and circumstances and considering the allegations made in the FIR as well as suicide note of the deceased, the matter requires meticulous examination by the investigating agency.
14. It is in these circumstances, considering the aforesaid facts and circumstances as well as the Page 20 of 22 HC-NIC Page 20 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT guidelines laid down by the Apex Court with regard to the exercise of jurisdiction under Section 482 CrPC, the present Criminal Misc. Application No. 20623 of 2013 deserves to be dismissed and is accordingly dismissed in limine, thereby directing the investigating agency to expeditiously initiate and conclude the investigation into the matter and proceed in accordance with law. Interim protection granted earlier in favour of the applicant by this Court on 24th December 2013 stands vacated. Rule is discharged with no order as to costs.
13. Consequently, Criminal Misc. Application [for Recall] No. 1562 of 2017 fails and the same is dismissed accordingly.
{B.N Karia, J.} After pronouncement of this Order, learned advocate Shri JV Vaghela appearing on behalf of the applicant requested this Court to continue the interim order dated 24th December 2013 for a period of three weeks so that the applicant can avail legal remedy by preferring anticipatory bail application before the concerned Sessions Court. Though, learned APP Shri Page 21 of 22 HC-NIC Page 21 of 22 Created On Fri Feb 10 05:02:17 IST 2017 R/CR.MA/1562/2017 CAV JUDGMENT Raval has not seriously opposed the prayer made, it would be in the fitness of things to direct the Police authorities not to take coercive steps for a period of two weeks from today so that a pre-arrest bail application can be moved by the applicant herein.
{B.N Karia, J.} Prakash Page 22 of 22 HC-NIC Page 22 of 22 Created On Fri Feb 10 05:02:17 IST 2017