Gujarat High Court
Sanjay Kanakmal Agrawal vs State Of Gujarat on 16 July, 2021
Author: A. S. Supehia
Bench: A.S. Supehia
R/CR.MA/10560/2020 JUDGMENT DATED: 16/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10560 of 2020
With
R/CRIMINAL MISC.APPLICATION NO. 10573 of 2020
With
R/CRIMINAL MISC.APPLICATION NO. 10761 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SANJAY KANAKMAL AGRAWAL
Versus
STATE OF GUJARAT
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Appearance:
MR N.D. NANAVATY, SENIOR ADVOCATE, with MR. BHADRISH S RAJU
with NIMIT Y SHUKLA(8338) for the Applicant(s) No. 1
MR.MOXA THAKKER, APP for the Respondent (in Cr.M.A.Nos.10560 and
10573 of 2020)
MR.HIMANSHU K PATEL, APP for the Respondent(s) No. 1 (IN Cr.M.A.
No.10761 of 2021)
MR.VISHAL J DAVE(6515) for the original informant/complainant
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 16/07/2021
JUDGMENT
[1] Heard the learned advocates for the respective parties by video conferencing.
Page 1 of 11 Downloaded on : Sun Jan 16 00:33:41 IST 2022R/CR.MA/10560/2020 JUDGMENT DATED: 16/07/2021 [2] By way of the present applications filed under Section 438 of the Code of Criminal Procedure, 1973, the applicants-accused have prayed for bail in connection with the FIR being C.R. No.I- 11210008200908 of 2020 registered with Sarthana Police Station, Surat City, District Surat for the offences under Sections 306 and 114 of the Indian Penal Code, 1860. (IPC) [3] The facts narrated in the FIR are that the daughter of the first informant namely, Panchilla, aged bout 26 years used to work as CA in Agrawal and Dhandhania Chartered Accountants Firm since last one and half years. The present applicants are the partners of the Agrawal and Dhandhania CA firm. It is alleged that on 30.06.2020, the daughter of the first informant had committed suicide by hanging due to harassment meted out by the applicants. It is further stated that on 23.06.2020, the deceased had gone to attend a religious function arraigned by one Shri Rajeshbhai Jivanbhai Sundani in Shreeji Yarn, who is one of the clients of the applicants firm, on invitation and the applicant - Sanjay Agarwal, who was also the invitee, arrived at the function and on seeking the deceased at the function scolded and defamed her by blaming that she was was doing job with Shreeji Yarn, and he threatened the deceased to drag her to court as well as to get her CA's license rejected due to which, the deceased went into depression and resigned from her job and sent her resignation through e-mail. It is further alleged that because of such harassment by the applicants, the deceased had committed suicide on 30.06.2020.
[4] Learned Senior Advocate Mr.N.D.Nanavaty with learned advocate Mr.Bhadrish Raju with learned advocate Mr.Nimit Y. Shukla appearing on behalf of the applicants have submitted that the deceased was an employee of the firm of the applicants and vide Employment Letter dated 20.09.2018 she was employed with specific conditions as mentioned therein. Learned Senior Advocate Page 2 of 11 Downloaded on : Sun Jan 16 00:33:41 IST 2022 R/CR.MA/10560/2020 JUDGMENT DATED: 16/07/2021 Mr.Nanavaty, while referring to the Condition Nos.5 and 13, has submitted that the letter of the employment of the deceased specifically stated that she was not supposed to engage herself in any company or sister concern or with their clients, for any work, profession or employment either honorary or otherwise during the period of employment. He has further submitted that when it came to the knowledge of the applicants that the deceased was working with one Shreeji Company, she was accordingly informed that she cannot do so without taking any permission or instruction from the firm. It is submitted by Mr.Nanavaty that on being informed by her engagement with another firm, she had immediately tendered her resignation, through email. It is submitted that as per the contents of the FIR as well as facts narrated by the Investigating Officer in his report, it appears that the accused no.1- Sanjay Agarwal has attended function on 23.06.2020 organized by Shri Rajeshbhai Jivanbhai Sundani - proprietor of Shreeji Yarn, and the deceased was also present and there appears to be some altercation with her engagement in Shreeji Firm and it appears that the deceased was allegedly warned by accused - Sanjay Agarwal of taking legal action against her as, she was doing the work with the firm of Rajeshbhai Jivanbhai Sadani without taking permission or informing the firm of the applicant no.1.
[4.1] Learned Senior Advocate Mr.Nanavaty has submitted that such allegations or altercations between the applicant no.1 and the deceased even if are taken on its face value, the same would not satisfy the requirement of provisions of Section 306 read with Section 107 of the IPC and it cannot be said that there was any instigation or abetment by the applicants, which has driven the deceased to commit suicide. It is further submitted that there was no mens rea or instigation on behalf of the applicants, which are essential ingredients to establish offence of Section 306 of the IPC. In support of his submission, Mr.Nanavaty has placed reliance on Page 3 of 11 Downloaded on : Sun Jan 16 00:33:41 IST 2022 R/CR.MA/10560/2020 JUDGMENT DATED: 16/07/2021 the decision of the Apex Court in the case of Chitresh Kumar Chopra vs. State (Govt. of NCT of Dehli) reported in (2009) 16 SCC
605. [4.2] Thus, learned Senior Advocate Mr.Nanavaty has submitted that the incident, which had occurred on 23.06.2020 between the applicant - Sanjay Agarwal and the deceased cannot be stretched to such extent that deceased had no other option but to commit Suicide. It is submitted that the applicant - Sanjay Agrawal had only reminded the deceased with regard to her obligation to the firm, as specified in her letter of Employment dated 20.09.2018 and that she was not required to join other organization or assist the firm. It is submitted that the warning given to the deceased of taking legal action against her, would not amount to instigation or abatement, which would provoke the decision to commit suicide. It is submitted that last conversation on phone between the applicant
- Sanjay Agarwal and the deceased was on 29.02.2020 and an email dated 23.06.2020, sent by him with regard to doing work with Shreeji Yarn without the permission. Thus, learned Senior Advocate Mr.Nanavaty has submitted that the applicants may be granted anticipatory bail.
[4.3] Learned Senior Advocate for the applicants has submitted that looking to the nature of allegations, for which custodial interrogation of the applicants at this stage is not necessary. He has further submitted that the applicants will keep themselves available during the course of investigation, as well as in the trial also and will not flee from justice.
[4.4] Learned Senior Advocate for the applicants, upon instructions, have submitted that the applicants are ready and willing to abide by all the conditions, including imposition of conditions with regard to powers of investigating agency to file an Page 4 of 11 Downloaded on : Sun Jan 16 00:33:41 IST 2022 R/CR.MA/10560/2020 JUDGMENT DATED: 16/07/2021 application before the competent Court for his remand. It is further submitted that upon filing of such application by the investigating agency, the right of the applicants accused to oppose such application on merits may be kept open. Learned Senior Advocate, therefore, has submitted that considering the above facts, the applicants may be granted anticipatory bail.
[5] Learned advocate Mr.Vishal Dave appearing for the first informant has submitted that since the accused no.1 - Sanjay Agrawal had threatened the deceased with regard to dragging her in court and also of cancelling her C.A License, the deceased had sent her resignation dated 23.06.2020 and thereafter an e-mail on 24.06.2020 to the accused no.1 -Sanjay Agrawal clarifying her stand.
[5.1] Learned advocate for the first informant has further submitted that a perusal of e-mails dated 23.06.2020 and 24.06.2020, it is clearly established that the applicant no.1 - Sanjay Agrawal has mentally harassed and insulted the deceased in the function, which was organized by Rajeshbhai Jivanbhai Sanghani the proprietor of Shreeji Yarn. He has submitted that the accused - Sanjay Agarwal had also threatened her by saying, that he will drag her to the Court and also get her licence revoked. He has also submitted that there is also phone transcript between the first informant and the accused no.1, which shows that the accused no.1 had threatened the complainant and deceased with legal action which sent her into depression. Thus, it is submitted that after the aforesaid incident, the deceased has committed suicide. Therefore, the applicants may not be enlarged on anticipatory bail.
[6] While placing reliance on the report of the Investigating Officer, learned Assistant Public Prosecutor Ms.Moxa Thakker appearing on behalf of the respondent - State has submitted that in Page 5 of 11 Downloaded on : Sun Jan 16 00:33:41 IST 2022 R/CR.MA/10560/2020 JUDGMENT DATED: 16/07/2021 fact because of insult meted out to the deceased in the function, which was organized by proprietor of Shreeji firm on 23.06.2020, the deceased had committed suicide on 28.06.2020. While referring to the statement dated 12.07.2020, recorded by the Investigating Officer of Rajeshbhai Jivanbhai Sanghani i.e. the proprietor of Shreeji Firm, it is submitted that the accused no.1 - Sanjay Agarwal was also invited in the function and there he met with the deceased and inquired about her presence in the function from him. Rajeshbhai Sanghani informed that deceased was called by him as she used to do some work in his Shreeji Firm, and on hearing the same the accused no.1-Sanjay Agrawal had inquired from the deceased that she could not have engaged in any work with Shreeji Firm without any permission and he threatened the deceased, that appropriate legal action will be taken against her by initiating court proceedings and also for revoking her C.A license. It is submitted by learned APP, that the accused - Sanjay Agarwal, also informed Rajeshbhai Sudani, that the persons like the deceased will work anywhere for Rs.2,000/- and from tomorrow, he should not engage her for the pending work and he will send his other staff to complete the work.
[7] It is further submitted by learned APP that as the deceased was insulted in the said function, it cannot be said the applicant no.1 - Sanjay Agrawal did not instigate the deceased to commit suicide. Thus, she has submitted that in light of the incident which had occurred on 23.06.2020, whereby the applicant no.1 - Sanjay Agrawal had threatened the deceased, she was compelled to commit suicide. Thus, she has submitted the present application may not be entertained looking to the gravity of offence.
[8] Learned Assistant Public Prosecutor Mr.Himanshu Patel has also submitted that the applicants are directly involved in abetting her to commit suicide. He has placed reliance on e-mail dated Page 6 of 11 Downloaded on : Sun Jan 16 00:33:41 IST 2022 R/CR.MA/10560/2020 JUDGMENT DATED: 16/07/2021 24.06.2020 sent by the deceased to the applicant no.1-Sanjay Agrawal, wherein she has clarified that she was not appointed by Shreeji Yarn as an employee but she has attended the function on personal account. Thus, it is submitted that looking to the role of the applicants, they may not be granted anticipatory bail.
[9] It is the case of the prosecution that the accused no.1-Sanjay Agrawal and accused no.2-Alok Rajkumar Dhandhaniya (proprietor of Shreeji Firm) and the accused no.3-Tushar Natvarbhai Vegad, who are the partners of the Agrawal & Dhandhania, Chartered Accountant Firm insulted and harassed the deceased to such an extent that she went into depression, due to which she committed suicide on 30.06.2020. The contents of FIR and the investigation reveal that the primary allegations are leveled against the accused no.1-Sanjay Agarwal. The deceased was an employee of the firm. The first informant has also referred to the incident dated 23.06.2020, which had occurred at the place of Rajeshbhai Sudani, the proprietor of Shreeji Yarn. From the facts as narrated hereinabove and the statement recorded by the Investigating Officer of proprietor - Rajeshbhai Sanghani of Shreeji Firm dated 10.07.2020, reveals that on 23.06.2020, he has organized a religious function of his office, whereby accused no.1-Sanjay Agrawal and the deceased were invited. From the statement, it appears that when the accused no.1 came to know about her presence, he inquired about the same from Rajeshbhai Sudani, who in response stated that she was doing the work in his firm with regard to filing of return of GST etc. It appears that on realising that the deceased was also doing the work of Shreeji Yarn, he threatened the deceased for taking legal action in the court and also filing a complaint before ICAI for getting her license revoked. It appears that there were some altercations between the accused no.1 and deceased on that day as narrated hereinabove the learned APP. Thereafter, the deceased tendered her resignation with Page 7 of 11 Downloaded on : Sun Jan 16 00:33:41 IST 2022 R/CR.MA/10560/2020 JUDGMENT DATED: 16/07/2021 immediate effect. It is the case of the first informant that because of such incident and threats given by the accused no.1, the deceased committed suicide. This Court has also perused the Employment Letter of the deceased, which was issued on 28.09.2018, whereby the deceased had accepted the letter of appointment and conditions mentioned therein. It appears that the deceased had worked in the firm of the accused for one and half years. The conditions prescribed in the letter of employment, specifically condition nos.5 and 13 prohibits her from engaging herself in any type of work outside the firm without the permission of the firm.
[9.1] It appears that pursuant to the aforesaid incident, the deceased was confronted by the accused no.1 with regard to her working with Shreeji Firm without his permission or permission of the firm. Thereafter, the deceased tendered her resignation on 23.06.2020. The applicant - Sanjay Agarwal had also sent an email to the deceased on 23.06.2020 clarifying the stand of the firm. The deceased had also responded to the e-mail by sending an email dated 24.06.2020 by saying that it was her personal function and she was not working with Shreeji Firm. It is pertinent to note that prior to the incident of 23.06.2020, no material has come on record which would suggest that the deceased was harassed mentally or physically by the accused. Thus, prima facie it appears that case of prosecution rests on the sole incident of 23.06.2020.
9.2 Section 306 of the IPC stipulates "Abetment of suicide". The parameters of "abetment" have been stated in Section 107 of the IPC, which defines "abetment of a thing". As per the Section, a person can be said to have abetted in doing a thing, if he, firstly, 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 Page 8 of 11 Downloaded on : Sun Jan 16 00:33:41 IST 2022 R/CR.MA/10560/2020 JUDGMENT DATED: 16/07/2021 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. Thus, it manifests that under all the three eventualities, the direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence under Section 306 of the IPC. The Apex Court in the case of Ramesh Kumar Vs. State of Chhattisgarh. (2001) 9 SCC 618 has held that instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an "instigation" may have to be inferred. It is asserted by the Apex Court that "A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation."
Thus, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicants in light of the facts/allegations and the law enunciated by the Apex Court.
[7] This Court has considered the following aspects;
(a) The role of the applicants;
(b) Prima facie, it appears that the entire allegations in the F.I.R are premised on a single incident which occurred on 23.06.2020 between the accused Sanjay Agarwal and the deceased;
(c) Prima facie, this court is of the opinion that such a sole incident cannot fall within the parameters of section 107 of the I.P.C, and Page 9 of 11 Downloaded on : Sun Jan 16 00:33:41 IST 2022 R/CR.MA/10560/2020 JUDGMENT DATED: 16/07/2021 the deceased was not left with any other option but to end her life.;
(d) Considering the facts of the case, the custodial interrogation of the applicant at this stage is not necessary;
[8] This Court has also taken into consideration the law laid down by the Apex Court in the cases of Sushila Aggarwal vs. State (Nct of Delhi), AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs State of Maharashtra, A.I.R. 2011 S.C. 312.
[9] In the result, the present applications are allowed. The applicants are ordered to be released on bail in the event of their arrest in connection with FIR being C.R. 11210008200908 of 2020 registered with Sarthana Police Station, Surat City, District Surat on their executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) EACH with one surety of like amount on the following conditions that they:
(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on 23.07.2021 between 11.00 a.m. and 2.00 p.m.;
(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade them from disclosing such facts to the court or to any police officer;
(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;
(e) shall at the time of execution of bond, furnish the addresses to the investigating officer and the court concerned and shall not change their residences till the final disposal of the case till further orders;
(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week.
Page 10 of 11 Downloaded on : Sun Jan 16 00:33:41 IST 2022R/CR.MA/10560/2020 JUDGMENT DATED: 16/07/2021 [10] Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicants, if he considers it proper and just and the Magistrate would decide it on merits. The applicants shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the concerned Magistrate to consider such a request in accordance with law. It is clarified that the applicants, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.
[11] At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.
[12] The applications are allowed in the aforesaid terms. RULE is made absolute to the aforesaid extent. Registry is directed to send a copy of this order to the concerned authority / court through Fax message, email and/or any other suitable electronic mode.
[13] Learned advocate for the applicants are also permitted to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.
(A. S. SUPEHIA, J) NABILA Page 11 of 11 Downloaded on : Sun Jan 16 00:33:41 IST 2022