Gujarat High Court
Vikrambhai @ Vikramsinh Dajibhai ... vs State Of Gujarat on 5 September, 2024
NEUTRAL CITATION
R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 9526 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
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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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VIKRAMBHAI @ VIKRAMSINH DAJIBHAI SOLANKI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR AB GATESHANIYA(3766) for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 05/09/2024
CAV JUDGMENT
1. By way of preferring present application under section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused, seeks to invoke the inherent powers of this Court, inter alia, praying for quashing of the FIR being C.R.No.I-45 of 2019 Page 1 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined registered with Dhrangdhara Taluka Police Station, District Surendranagar for the offence punishable under Sections 306 of the Indian Penal Code and Sections 10 and 30 of the Gujarat Money Lenders Act, 2011.
2. Heard learned advocate Mr. Virat Popat for the applicant, learned APP Mr. Soaham Joshi for the respondent - State and learned advocate Mr. A. B. Gateshaniya for respondent No.2 - original complainant.
3. Learned advocate Mr. Virat Popat for the applicant has submitted that respondent No.2 - original complaint is the wife of the deceased and it is stated in the operative part of the compliant that deceased was under a debt since last 5 to 6 years. The deceased has taken amount of loan from different creditors and he could not be able to repay the said amount of loan within the prescribed period and therefore creditors used to pay visit to the house of the deceased and used to demand the amount of interest and on non-payment of the same they used to administer threat of dire consequences, due to which, deceased used to remain in disturb state of mind. It is alleged against the applicant that deceased had borrowed amount from the applicant and applicant used to come to the house of the complainant for recovery of the said amount and used to create tremendous Page 2 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined pressure upon her husband. The husband of the complainant could not bear the said pressure and ultimately he committed suicide and therefore compliant under Section 306 of the IPC and under the provisions of the Gujarat Money Lenders Act came to be filed against the applicant.
4. Learned advocate Mr. Popat has submitted that deceased has not written any suicide note before committing the suicide. Learned advocate Mr. Popat has submitted that it is stated in the complaint that deceased was under tremendous pressure as he has borrowed the amount of loan from number of persons and they used to come to recover the amount of interest, due to which, he had gone into tremendous pressure but surprisingly the complainant has registered the FIR only against the applicant. He further submitted that deliberately applicant has been made accused as one transaction in the form of sale deed was executed between the applicant and the deceased in the year 2016 and with a sole intent to get the said entry reversed the present FIR has been registered against the applicant only. The family of the complainant wants back the possession of the said land which was purchased by the applicant from the deceased in the year 2016 by executing registered sale deed. He has produced the copy of the said registered sale deed, which is appended with the petition, and submitted that present FIR is filed by Page 3 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined the complainant with an oblique motive to wreak vengeance against the applicant and also create pressure upon him to get back the possession of the said property by reversing the sale deed. Learned advocate Mr. Popat has further submitted that the so- called incident is occurred on 30.04.2019 and on the very next day the complaint has been filed by the complainant against the applicant and immediately after registration of the FIR the applicant has approached this Court and on 13.05.2019, considering the averments made in the memo of the application as well as allegations levelled against the applicant in the body of the complaint and settled proposition of law, the Coordinate Bench of this Court directed the investigating officer to carry out the investigation but not to take any coercive step against the applicant. The said relief is extended from time to time. Learned advocate Mr. Popat, therefore, submitted that charge-sheet has not been filed against the applicant and matter is at the stage of investigation.
5. Learned advocate Mr. Popat has further submitted that if this Hon'ble Court would make cursory glance upon the body of the FIR, in that event, it would be found out that applicant - accused has neither abetted, instigated and/or aided in any form, which ultimately drive the deceased to commit suicide by leaving him with no other option than to take the Page 4 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined said extreme step. It is the settled proposition of law that 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. By bare perusal of the impugned FIR, it is found out that the same is registered with mala fide intention and oblique motive to harass and pressurize the applicant and the said FIR is nothing but sheer abuse of process of law and therefore the same is required to be quashed in the interest of justice. Learned advocate Mr. Popat has further submitted that as there is no suicide note and in the operative part of the FIR complainant herself has stated that deceased has borrowed money from many creditors and all those persons were used to visit her house and demanded the amount of interest and thereby created tremendous pressure upon the deceased, the liability of the extreme step taken by the deceased cannot be fastened on the head of the applicant. He has further submitted that applicant is not a money lender and solely on the count that he has entered into an agreement by way of registered sale deed through which he has got possession of the said property, a false and frivolous FIR has been filed by the complainant against the present applicant. He has further submitted that there is no history of past antecedents against the applicant accused. He further Page 5 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined submitted that registration of the FIR against the applicant accused is nothing but sheer abuse of process of the law and therefore the impugned FIR is required to be quashed and set aside.
6. Learned advocate Mr. Popat has put reliance upon the decision of the Hon'ble Apex Court in the case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), reported in (2009) 16 SCC 605 and submitted that the principle of law laid down by the Hon'ble Apex Court in the aforesaid decision is squarely applicable to the case on hand.
7. In support of his submissions, learned advocate Mr. Popat has put reliance upon the following decisions:
1. The decision of Hon'ble Apex Court in the case of Mohit Singhal & Anr. v. The State of Uttarakhand & Ors, rendered in Criminal Appeal No.3578 of 2023;
2. Decision of this Court in Kiritsinh Lakhubha Vala (Darbar) v. State of Gujarat & Anr., reported in 2017(2) G.L.H. 205; and
3. Decision of this Court in Bharatbhai P. Parikh & Ors., v. State of Gujarat & Anr., reported in 2018(1) G.L.R. 55.
8. Having relied upon the aforesaid decisions, Page 6 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined learned advocate Mr. Popat has submitted that for the sake of arguments, if the allegations levelled against the applicant are to be accepted in its entirety, even though the said act of the applicant would not fall under the act of abetment and/or instigation to the deceased to commit suicide and therefore it can safely be said that the offences alleged in the FIR are not made out against the applicant. He, therefore, urged that the FIR impugned may be quashed qua the applicant - accused.
9. The present application is objected by learned advocate Mr. Gateshaniya for respondent No.2 - original complainant with vehemence and submitted that the so-called incident is occurred on 30.04.2019 and on the very next day i.e. on 01.05.2019 the complaint is filed by the complainant against the applicant - accused. It is the specific case of the complainant that husband of the complainant has borrowed some money on higher rate of interest from the applicant and applicant used to come to the house of the complainant and administered threat to the deceased despite the fact that time and again huge volume of money has been taken by the applicant from the deceased forcefully. He has submitted that in fact the husband of the complainant was indulged into the agricultural activities and having large chunk of land in the village. The said land is fertile one and the value of the land is approximately Rs.90 Page 7 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined lakh. The applicant is indulged in the business of money lending and under the guise of such business he used to usurp the property of innocent borrowers and husband of the complainant has borrowed money from the applicant and under the guise of the said amount applicant has procured land of the complainant by executing registered sale deed in his favour despite the fact that time and again deceased had repaid the huge volume of amount of interest. Learned advocate Mr. Gateshaniya has further submitted that copy of the registered sale deed is appended along with the memo of the petition and if the Hon'ble Court would go through the contents of the said registered sale deed, in that event, it would be found out that it is the specific case of the applicant that he has purchased the said property by paying Rs.10 lakh to the deceased but in which form the said amount was given is not mentioned i.e. whether such amount is paid in cash and/or through cheque and on which date the said amount was transferred in the account of the deceased by the applicant. The recital of the registered sale deed clearly goes on to show that by adopting pressurizing tactics he had executed the said registered deed in his favour without paying the amount of consideration to the deceased. He has further submitted that therefore he has not mutated his name in the revenue record immediately after the execution of the registered sale deed and under the guise of execution of registered sale deed by Page 8 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined adopting illegal mode and manner he has exerted pressure upon the deceased and executed registered sale deed in his favour and illegally taken possession of agricultural land of 30 Bighas valued at more than Rs. 90 lakh and due to the said action adopted by the applicant, deceased had gone into a frustrated state of mind (depression) and ultimately committed the suicide.
10. Learned advocate Mr. Gateshaniya has further submitted that immediately after the registration of the FIR, the applicant had approached before this Court and he was protected by this Court. However, investigating officer was directed to carry out the investigation and therefore investigating officer has recorded statement of number of witnesses. He has further submitted that as order of no coercive action is passed by this Court, the charge-sheet is not submitted by the investigating officer. The FIR is filed in the year 2019 and complainant is deprived of her valuable right since then. He further submitted that in fact the livelihood of the complainant and her family members is based upon agricultural activities only and in absence of land they are in hand to mouth position and in absence of any permanent source of livelihood they are living in starvation and their condition is very pitiable. Learned advocate Mr. Gateshaniya has further submitted that on 13.05.2019, the complainant has Page 9 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined preferred one application to the Superintendent of Police, Surendranagar specifically stating that despite registration of the FIR against the applicant he has not been arrested by the police officer as relatives of the applicant are working in the police department. One another application is also preferred on 13.06.2019 addressing to the Director General of Police, Gandhinagar, specifically stating that the deceased has borrowed amount from the applicant and applicant has adopted pressurizing tactics under the guise of recovery of interest and principal amount given to the deceased and he has exerted pressure upon the deceased which deceased could not sustain and ultimately succumbed and thereafter he had executed registered sale deed in favour of the applicant. It is also alleged that the value of the property is many times more than the amount borrowed by the husband of the complainant. It is further stated that investigation is not carried out by the investigating officer in true direction and proper manner as the relatives of the applicant are working in police department. Therefore, investigation is required to be entrusted to the neutral and independent agency, and more particularly, CID Crime. He has submitted that despite the number of representations made by the complainant, applicant has not been arrested till date. He has further submitted that if this Hon'ble Court would make cursory glance upon the contents of the FIR in Page 10 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined question, in that event, it would be found out that basic and essential ingredients to constitute the charge under Section 306 IPC are clearly spelt out. Hence, present application is required to be rejected at threshold.
11. Learned APP Mr. Soaham Joshi appearing for the respondent - State has objected present application with vehemence and submitted that in fact present application is vehemently opposed by learned advocate for the respondent No.2 - original complainant by raising many contentions and therefore he need not have to repeat the said arguments and he is adopting the arguments canvassed by learned advocate for the respondent no.2 - original complainant. However, he has submitted that immediately after the registration of the FIR, applicant has approached this Court and at that relevant point of time the order of no coercive action is passed by this Court. However, investigating officer is permitted to carry out the investigation and therefore investigating officer has recorded statement of number of witnesses and if the Court would make cursory glance upon the contents of the statement of those witnesses, in that event, it would be found out that all the witnesses have supported the version of the complainant which clearly goes on to show that present applicant has created undue pressure upon the deceased and under the guise of repayment of high interest of amount he Page 11 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined has pressurized the deceased and ultimately deceased has executed registered sale deed in his favour and applicant has got possession of huge volume of land valued at Rs.90 lakh. Therefore, deceased had gone under tremendous pressure and ultimately committed suicide. Thus, prima facie, the requisite and essential ingredients of Section 306 IPC are found out and therefore the present application is required to be rejected. He has further submitted that complainant has raised allegations against the police officer by making representation to the various authorities. Learned APP Mr. Joshi has further submitted that immediately within no time the Coordinate Bench of this Court has passed the order of no coercive action against the applicant and therefore despite the concrete prima facie evidence available against the applicant, the investigating officer is not in a position to arrest him. He has produced the copy of the statements of the witnesses and after relying upon the said statements, he has submitted that prima facie involvement of the present applicant accused in commission of crime is found out. He, therefore, urged that present application is required to be rejected.
12. To counter the arguments canvassed by learned advocate of respondent No.2 - original complainant, learned advocate Mr. Popat has submitted that the applicant has become the absolute owner and occupant Page 12 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined of the property by executing registered sale deed. The said sale deed was executed in the year 2016 and the so-called incident is occurred in the year 2019 and during the interregnum period the deceased has not made a single complaint before any authority about usurpation of the said property. On the contrary, at the time of execution of of the registered sale deed, the presence of the deceased was recorded by the Registrar and a pertinent query was being asked about receiving the amount of consideration, wherein, he has replied affirmatively. The said set of documents are already produced along with memo of the petition. Learned advocate Mr. Popat has further submitted that so far as representations made by the complainant before various authorities which are annexed along with the reply are to be read, in that event, it would be found out that the present compliant is filed solely on the count that the applicant has executed registered sale deed with the husband of the deceased. But, till date the said registered sale deed has not been challenged by way of filing any civil suit before the Civil Court or even the revenue entries have not been challenged before the Revenue Authority. He has further submitted that signature of the deceased on registered sale deed was also not disputed by the complainant. Learned advocate Mr. Popat has further submitted that at the time of registration of the FIR, improvements and addition of facts are clearly Page 13 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined found out and story narrated in the FIR is quite different than the story made in the representations which clearly goes on to show that with a sole intent to keep the applicant in pressure and get back the possession of the land, present FIR is registered. He has, therefore, urged that present application may be allowed by quashing the FIR in question.
13. Having heard the learned counsel appearing for the parties and having gone through the material placed on record, it is found out from the record that applicant has been arraigned as accused in connection with FIR being C.R.No.I-45 of 2019 registered with Dhrangdhara Taluka Police Station, District Surendranagar for the offence punishable under Sections 306 of the Indian Penal Code and Sections 10 and 30 of the Gujarat Money Lenders Act, 2011. It is the case of the prosecution that the deceased husband of the complainant had borrowed amount from the applicant and applicant used to come to the house of the complainant for recovery of the said amount and used to create tremendous pressure upon her husband. The husband of the complainant could not bear the said pressure and ultimately he committed suicide.
14. At this juncture, before adverting to the issue involved in the matter, I would like to refer to certain case laws wherein the Hon'ble Apex Court as Page 14 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined well as different High Courts have very succinctly crystallized the position of law so far as Sections 306 and 107 of the Indian Penal Code are concerned. The Hon'ble Supreme Court, in the case of Geo Verghese v. State of Rajasthan, reported in AIR 2021 SC 4764, observed and held as under:
"13. In our country, while suicide in itself is not an offence as a person committing suicide goes beyond the reach of law but an attempt to suicide is considered to be an offence under Section 309 IPC. The abetment of suicide by anybody is also an offence under Section 306 IPC. It would be relevant to set out Section 306 of the IPC which reads as under :-
"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 which may extend to ten years, and shall also be liable to fine."
14. Though, the IPC does not define the word 'Suicide' but the ordinary dictionary meaning of suicide is 'self-killing'. The word is derived from a modern latin word 'suicidium' , 'sui' means 'oneself' and 'cidium' means 'killing'. Thus, the word suicide implies an act of 'self- killing'. In other words, act of death must be committed by the deceased himself, irrespective of the means adopted by him in achieving the object of killing himself.
15. Section 306 of IPC makes abetment of suicide a criminal offence and prescribes punishment for the same. Abetment is defined under Section 107 of IPC which reads as under :-
"107. Abetment of a thing - A person abets the Page 15 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined 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 wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to 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."
16. The ordinary dictionary meaning of the word 'instigate' is to bring about or initiate, incite someone to do something. This Court in the case of Ramesh Kumar Vs. State of Chhattisgarh1 has defined the word 'instigate' as under :-
"Instigation is to goad, urge forward, provoke, incite or encourage to do an act."
17. The scope and ambit of Section 107 IPC and its co-relation with Section 306 IPC has been discussed repeatedly by this Court. In the case of S.S.Cheena Vs. Vijay Kumar Mahajan and Anr.2 , it was observed as under:-
Page 16 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined "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 the Supreme 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."
18. In a recent pronouncement, a two-Judge Bench of this Court in the case of Arnab Manoranjan Goswami Vs. State of Maharashtra & Ors.3 , while considering the co-relation of Section 107 IPC with Section 306 IPC has observed as under :-
"47. The above decision thus arose in a situation where the High Court had declined to entertain a petition for quashing an FIR under Section 482 of the 14 (2014) 4 SCC 453 PART I 33 CrPC. However, it nonetheless directed the investigating agency not to arrest the accused during the pendency of the investigation. This was held to be impermissible by this Court. On the other hand, this Court clarified that the High Court if it thinks fit, having regard to the parameters for quashing and the self restraint imposed by law, has the jurisdiction to quash the investigation ―and may pass appropriate interim orders as thought apposite in law. Clearly therefore, the High Court in the present case has misdirected itself in declining to enquire prima facie on a petition for quashing whether the parameters in the exercise of Page 17 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined that jurisdiction have been duly established and if so whether a case for the grant of interim bail has been made out. The settled principles which have been consistently reiterated since the judgment of this Court in State of Haryana vs Bhajan Lal(Bhajan Lal) include a situation where the allegations made in the FIR 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. This legal position was recently reiterated in a decision by a two-judge Bench of this Court in Kamal Shivaji Pokarnekar vs State of Maharashtra.
48. The striking aspect of the impugned judgment of the High Court spanning over fifty-six pages is the absence of any evaluation even prima facie of the most basic issue. The High Court, in other words, failed to apply its mind to a 15 1992 Supp. 1 SCC 335 16 (2019) 14 SCC 350 PART I 34 fundamental issue which needed to be considered while dealing with a petition for quashing under Article 226 of the Constitution or Section 482 of the CrPC. The High Court, by its judgment dated 9 November 2020, has instead allowed the petition for quashing to stand over for hearing a month later, and therefore declined to allow the appellant's prayer for interim bail and relegated him to the remedy under Section 439 of the CrPC. In the meantime, liberty has been the casualty. The High Court having failed to evaluate prima facie whether the allegations in the FIR, taken as they stand, bring the case within the fold of Section 306 read with Section 34 of the IPC, this Court is now called upon to perform the task."
19. In the case of M. Arjunan Vs. State, Represented by its Inspector of Police4 , a two-
Page 18 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined Judge Bench of this Court has expounded the ingredients of Section 306 IPC in the following words:-
"The essential ingredients of the offence under Section 306 I.P.C. 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, accused cannot be convicted under Section 306 I.P.C."
xxx xxx xxx
23. In the backdrop of the above discussion, we may now advert to the facts of the present case to test whether the ingredients of offence under Section 306 IPC exist, even prima-facie, to continue with the investigations.
24. The FIR recites that victim boy was under
deep mental pressure because the appellant herein had harassed and insulted him in the presence of everyone and he was not willing to go to school on 25.04.2018 but was persuaded to go to school by the complainant. When he returned from the school, again he was under very much pressure and on being enquired told that today again he was harassed and insulted by the GEO, PTI Sir (the appellant). The boy was informed that the parents have been called to school next day and this brought him under further severe pressure and tension."
15. In the facts of the present case, second and Page 19 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined third clauses of Section 107 will have no application. Now, the question remains is as to whether the applicant instigated the deceased to commit suicide. To attract the first clause, there must be instigation in some form on the part of the accused to cause the deceased to commit suicide. Hence, the accused must have 'mens rea' to instigate the deceased to commit suicide. The act of instigation must be of such intensity that it is intended to push the deceased to such a position under which he or she has no choice but to commit suicide. Such instigation must be in close proximity to the act of committing suicide. In the present case, taking the contents of the FIR as correct, it is impossible to conclude that the applicant has instigated the deceased to commit suicide. By no stretch of imagination, the alleged act of the applicant can amount to instigate the deceased to commit suicide.
16. Now, I would like to refer the decision rendered by this Court in the case of Lalitbhai Vikramchand Parekh v. State of Gujarat, Criminal Misc. Application No.16032 of 2014 and allied matters decided on 10th April, 2015, wherein the following observations were made:
"25. Taking note of various earlier judgments, in M. Mohan u. State Represented the Deputy Superintendent of Police, (2011) 3 SCC 626. the Supreme Court held that "Abetment involves mental Page 20 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined process of instigating or intentionally aiding a person in doing of a thing. There should be clear mens rea to commit offence under Section 306. It requires commission of direct or active act by accused which led deceased to commit suicide seeing no other option and such act must be intended to push victim into a position that he commits suicide."
26. On a close reading of the above provisions of the IPC, and the principles laid down by the Supreme Court in various decisions, it is apparent that in a case under Section 306 IPC, there should be clear mens-rea to commit the offence under this Section and there should be direct or active act by the accused, which led the deceased to commit suicide, that is to say that there must be some evidence of "instigation", "cooperation" or "initial assistance" by the accused to commit suicide by the victim/deceased.
27. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrajirao Angre, (1988) 1 SCC 692 the Supreme Court observed vide Para 7 that:
"7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no Page 21 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
It was a proposition relating to criminal prosecution.
28. In Madan Mohan Singh v. State of Gujarat, (2010) 8 SCC 628. the Supreme Court quashed the proceedings under Section 306 IPC on the ground that the allegations were irrelevant and baseless and observed that the High Court was in error in not quashing the proceedings.
29. Accepting the allegations made against the applicants by the prosecution as it is, they do not constitute the offence of abetment. I am conscious of the fact that five persons of one family lost their lives on account of drastic step taken by them for no reason. It is very difficult to understand the mental state of mind of such persons who take an extreme step of putting an end to their life voluntarily by committing suicide."
17. Having regard to the provisions of Sections 107 and 306 of the Indian Penal Code and the principle laid down by the Hon'ble Apex Court in various decisions referred to in the case of Lalitbhai Vikramchand Parekh (supra), it is apparent that in a case under Section 306 of the Indian Penal Code, there should be correct mens rea to commit the offence under this section and there should be direct Page 22 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined and active role by the accused, which led the deceased to commit the suicide. In the present case, taking the FIR filed by the complainant as correct, it is impossible to come to the conclusion that the applicant has instigated the deceased to commit suicide.
18. The Hon'ble Apex Court in the case of Mohit Singhal & Anr (supra), observed and held as under:
"10. In the present case, taking the complaint of the third respondent and the contents of the suicide note as correct, it is impossible to conclude that the appellants instigated the deceased to commit suicide by demanding the payment of the amount borrowed by the third respondent from her husband by using abusive language and by assaulting him by a belt for that purpose. The said incident allegedly happened more than two weeks before the date of suicide. There is no allegation that any act was done by the appellants in the close proximity to the date of suicide. by no stretch of the imagination, the alleged acts of the appellants can amount to instigation to commit suicide. the deceased has blamed the third respondent for landing in trouble due to her bad habits."
19. The scope and ambit of inherent powers of the Court under Section 482 Cr.P.C. or the extra-ordinary power under Article 226 of the Constitution of India, now stands well defined by series of judicial pronouncements. Undoubtedly, this Court has inherent power to do real and substantial justice, or to Page 23 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024 NEUTRAL CITATION R/CR.MA/9526/2019 CAV JUDGMENT DATED: 05/09/2024 undefined prevent abuse of the process of the Court. At the same time, the Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power vested in the Court should not be exercised to stifle a legitimate prosecution. However, this Court can exercise its inherent power or extra-ordinary power if the Court comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court, or the ends of justice require that the proceeding ought to be quashed. Thus, I am of the considered view that the allegations in the first information report if taken at its face value and accepted in their entirety, they do not constitute the offence alleged and the chances of an ultimate conviction after full-fledged trial are bleak and continuation of criminal prosecution against the applicant accused is merely an empty formality and wastage of prestigious time of the Court.
20. In view of the aforesaid discussion, the application succeeds and is hereby allowed. Accordingly, the FIR being C.R.No.I-45 of 2019 registered with Dhrangdhara Taluka Police Station, District Surendranagar and consequential proceedings arising out of the said FIR are hereby quashed and set aside.
(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 24 of 24 Uploaded by LAVKUMAR J JANI(HC00210) on Thu Sep 05 2024 Downloaded on : Thu Sep 05 21:12:33 IST 2024