Gujarat High Court
Lalaji Udaji Rathod vs State Of Gujarat on 5 April, 2024
NEUTRAL CITATION
R/CR.MA/7991/2017 ORDER DATED: 05/04/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 7991 of 2017
==========================================================
LALAJI UDAJI RATHOD & ORS.
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR DAIFRAZ HAVEWALLA(3982) for the Applicant(s) No.
1,2,3,4
MR L B DABHI, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 05/04/2024
ORAL ORDER
1. By way of preferring this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants seek to invoke the inherent powers of this Court praying for quashing of the FIR being C.R.No.I-24 of 2017 registered with Modasa Rural Police Station for the offence punishable under Sections 306, 504, 506(2) and 114 of the Indian Penal Code and consequential proceedings arising out of the said FIR.
2. The brief facts leading to filing of the present application are as under:
2.1. The complainant is the husband of the deceased and about four months prior to the date of Page 1 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined registration of the FIR, complainant's daughter eloped with one boy viz. Vijay Parmar of the same village and due to the said reason, disputes have been cropped between the two families inter se. It is alleged in the FIR that the accused persons (applicants herein) were the family members of the complainant and they used to admonish the complainant and his wife that their daughter eloped with the boy of the same village, therefore, the act of their daughter tarnished the reputation of the family and they threatened them to bring back their daughter, otherwise, they will have to face dire consequences.
2.2. The complainant made all his best efforts to find out his daughter but could not get success in his attempts and all the efforts have gone in vain.
It is the case of the prosecution that on the fateful day, a programme of death anniversary of father of the applicants was organized by the applicants and complainant and his wife were requested to attend the said function but the applicants also invited parents and other relatives of the said boy i.e. Vijay Parmar and therefore complainant and his wife decided not to attend the said function and due to the said action of the complainant, the applicants got enraged and reached to the house of the complainant and threatened them to cut off all the relationship with them as the complainant and his wife had not attended their function. It is also alleged that accused persons have also administered threat to the deceased Page 2 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined and her husband about dire consequences and also made accusation upon the deceased that she aided her daughter to elope. The action of the daughter of the deceased is identically similar to her mother and after saying that the applicants left. Thereafter, after some time, the deceased informed to the complainant that she was unable to bear the torture and she wanted to end her life. The complainant thereafter went to sleep outside the house and in the morning he came to know that her wife hanged herself and committed suicide and therefore FIR has been registered against the present applicants accused.
3. Heard learned advocate Mr. Daifraz Havewalla for the applicants, learned APP Mr. L. B. Dabhi for the respondent State. It is found out from the record that the notice issued by this Court is duly served to respondent No.2 - original complainant but he has chosen not to appear and contest the present application.
4. Learned advocate Mr. Daifraz Havewalla submitted that even if the entire case of the prosecution is accepted as true without adding or subtracting anything from it, none of the ingredients to constitute an offence of abetting the commission of suicide are spelt out. He further submitted that the mere threat if at all believed, would not constitute an offence under Section 306 of the Indian Penal Code. He submitted that there was no instigation Page 3 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined within the meaning of section 107 of the Indian Penal Code. He further submitted that daughter of the complainant and deceased had eloped with one boy of the same village and due to which the disputes cropped up between the family members and ultimately the relations have been strained. Learned advocate Mr. Havewalla submitted that it is alleged that due to elopement of the daughter of complainant and deceased with one village boy, the relatives were taunting and threatening them and owing to the said incident, the deceased has committed suicide. Learned advocate Mr. Havewalla submitted that for the sake of arguments and without admitting it, if the allegations levelled against the present applicants accused are accepted as it is, in its entirety, even though, by no stretch of imagination, it can he said that applicants had instigated the deceased to commit suicide. Learned advocate Mr. Havewalla submitted that bare perusal of the FIR itself clearly goes on to show that on the fateful day of incident all the four applicants had gone to the house of the complainant and administered threat to the complainant as well as deceased. So, if the intention of the applicants accused to aid and/or instigate the persons to commit suicide, in that event, along with deceased, complainant might have committed suicide because as per the case of the prosecution, threat was administered to the complainant as well as deceased. Learned advocate Mr. Havewalla further submitted that prima facie it seems that deceased Page 4 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined might have hyper sensitive kind of nature and it might be possible that due to certain incidents occurred in her family after the elopement of her daughter, she remained under constant mental pressure which ultimately led her to commit suicide. Learned advocate Mr. Havewalla further submitted that there was no close proximity which connects the act of the present applicants accused with the commission of crime. Considering the above stated factual aspects, the FIR registered against the present applicants accused is required to be quashed and set aside. Learned advocate Mr. Havewalla further submitted that there is no dying declaration and suicide note written by the deceased. Hence, the application may be allowed and the FIR in question may be quashed and set aside. Learned advocate Mr. Havewalla further submitted that if this Hon'ble Court would go through the contents of the FIR, in that event, it would be found out that there was no mens rea on the part of the applicants accused to instigate the deceased to commit suicide. In support of the aforesaid submissions, learned advocate Mr. Havewalla has put reliance upon the decision of the Hon'ble Apex Court in the case of Mohit Singhal & Anr. v. State of Uttarakhand, reported in (2024) 1 SCC 417.
5. Learned APP Mr. L. B. Dabhi for the respondent - State has objected present application with vehemence and submitted that bare perusal of the FIR itself clearly goes on to show the involvement of the Page 5 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined present applicants accused in commission of crime. Learned APP further submitted that immediately after registration of the FIR, the applicants accused approached this Court and obtained order of restrictions upon the investigation, due to which, the investigation is still in progress. He further submitted that bare perusal of the contents of the FIR clearly make out the case of abetment of the suicide on the part of the applicants accused as the so-called incident occurred during the course of the day and on the same day at night the deceased has committed suicide. At the relevant point of time, the applicants used abusive language and administered threat to the complainant and the deceased to face dire consequences and told the complainant and deceased that they will cut off all the relationship with the family of the complainant and also told the deceased that the daughter of the deceased is having same mindset like the deceased and due to which the deceased has committed suicide. Therefore, it can be said that the act was done by the applicants accused in close proximity to the date of suicide and hence the judgment of the Hon'ble Apex Court upon which reliance is being placed by learned advocate for the applicants would not be applicable in the facts of the present case. Learned APP Mr. Dabhi further submitted that the allegations levelled against the applicants accused in the FIR clearly goes on to show that there was constant and incessant harassment made by the present applicants accused to the deceased Page 6 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined since from the day when the daughter of the deceased eloped with the boy of the same village. Learned APP further submitted that not only that on the date of fateful incident all the applicants accused had gone to the house of the complainant and administered threat to the complainant and deceased. In view of the above stated factual aspects, present application may not be entertained and the same is required to be dismissed.
6. 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 applicants have been arraigned as accused in connection with FIR being C.R.No.I-24 of 2017 registered with Modasa Rural Police Station, District Arvalli for the offence punishable under Sections 306, 504, 506(2) and 114 of the Indian Penal Code. It is the specific case of the prosecution that the wife of the complainant committed suicide on account of the constant and incessant harassment meted out to her by the applicants accused. It is the specific case of the prosecution that the daughter of the complainant eloped with one boy from the same village and therefore the applicants, being the family members, had administered threat to bring back the boy and girl otherwise they have to face the dire consequences. It is alleged against the applicants that on the fateful day, the applicants went to the house of the complainant and deceased and used Page 7 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined abusive language and threatened the complainant and his wife to face dire consequences and also told the deceased that the daughter of the deceased is having same mindset like the deceased. Thus, on account of the said act and behaviour of the applicants, the deceased has committed suicide.
7. At the time of deciding present application, this Court is of the opinion that before adverting into the issue involved in the matter, the definition of 'abetment of suicide' is required to be reproduced, which is 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."
7.1. The Abetment is defined under Section 107 of IPC, which reads as under:
"107. Abetment of a thing - A person abets the doing of a thing, who--
First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing.Page 8 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024
NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined 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."
8. At this juncture, before adverting to the issue involved in the matter, I would like to refer to the decision of the Hon'ble Apex Court in case of Mohit Singhal & Anr. (supra), wherein the Hon'ble Apex Court has very succinctly crystallized the position of law insofar as Sections 306 and 107 of the Indian Penal Code are concerned. The Hon'ble Apex Court has observed in para 9, 10 and 11 as under:
"9. In the facts of the case, secondly and thirdly in Section 107, will have no application. Hence, the question is whether the appellants 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.
10. In the present case, taking the complaint of the third respondent and the contents of the Page 9 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined 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 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.
11. Therefore, in our considered view, the offence punishable under Section 306 of IPC was not made out against the appellants. Therefore, the continuation of their prosecution will be nothing but an abuse of the process of law."
9. As observed by the Hon'ble Apex Court, to attract the first clause of Section 107 IPC, 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. If the facts of the present case are considered in the context of the aforesaid observations made by the Hon'ble Apex Court, in that event, by no stretch of imagination, Page 10 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined the alleged acts of the applicants can amount to instigation to commit suicide.
10. It is pertinent to note that the applicants are the relatives of the deceased and they have also invited the complainant and deceased to attend some function. If the relation between the applicants accused and deceased were strained, in that event, the complainant and deceased could not have been invited by the applicants and from the facts of the present case, it cannot be said that there was any intention on the part of the applicants to abet the commission of suicide by the deceased who is their family member and therefore no mens rea can be attributed. Thus, in the opinion of this Court, the very element of abetment is missing from the allegations levelled in the FIR and in absence of the element of abetment from the allegations, the offence under Section 306 IPC would not be attracted. It is also pertinent to note that the possibility of deceased being hyper sensitive and as the atmosphere in the house of the deceased was not good because of the fact that her daughter eloped with one boy of the same village and therefore she was in constant mental pressure which led her to take an ultimate decision to commit suicide also cannot be ruled out.
11. At this stage, I would like to refer to the decision rendered by this Court in the case of Lalitbhai Vikramchand Parekh v. State of Gujarat, Page 11 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined Criminal Misc. Application No.16032 of 2014 and allied matters decided on 10th April, 2015, wherein the following observations were made:
19. In case of suicide how the evidence is required to be appreciated has been stated by the Hon'ble Supreme Court in number of judgments. In State of West Bengal v. Orilal Jaiswal, (1994) 1 SCC 73, the Hon'ble Supreme Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. Further the Hon'ble Supreme Court in case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), (2009) 16 SCC 605 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter.
Each person's suicidability pattern is different from the other. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the HC-NIC Page 10 of 15 Created On Sun Dec 06 01:54:01 IST 2015 R/CR.MA/6788/2015 ORDER basis of its own facts and circumstances.
Page 12 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined
20. The Hon'ble Supreme Court in case of Amalendu Pal @ Jhantu vs. State of West Bengal, 2010 AIR(SC) 512, after considering various earlier judgments in para 15 observed that, "15. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable."
"16. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC."
21. The Hon'ble Supreme Court in the case of Randhir Singh v. State of Punjab, (2004) 13 SCC 129 has reiterated the legal position as regards Section 306 IPC which is long settled in Page 13 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined para 12 and 13. Para 12 and 13 reads thus :
"12. Abetment involves a mental process of instigation a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.
13. In State of W. B. v. Orilal Jaiswal this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive or ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belongs and such HC-NIC Page 11 of 15 Created On Sun Dec 06 01:54:01 IST 2015 R/CR.MA/6788/2015 ORDER petulance, discord and differences were not expected to induce a similarly circumstances individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
22. In Gcngula Mohan Reddy v. State of A.P., (2010) 1 SCC 750 the Supreme Court while interpreting Section 306 IPC held that:
"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing and without a positive act on the part of the accused to instigate or aid in committing suicide, there cannot be any Page 14 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined conviction. It was further held that to attract Section 306 IPC there has to be a clear mens tea to commit the offence."
23. In Ramesh Kumar v. State of Chhattisgarh., (2001) 9 SCC 618. the Supreme Court 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. The present one is not a case 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 been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
24. In Sanju alias Sanjay v. State of M.P., (2002) 5 SCC 371. the deceased committed suicide on 27.7.1998. whereas, the alleged quarrel had taken place on 25.7.1998 when it was alleged that the appellant had used abusive language and also told the deceased to go and die. The Supreme Court in the said circumstances held that the fact that the deceased committed suicide on 27.7.1998 would itself clearly point out that it was not the direct result of the quarrel taken place on 25.7.1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die.
25. Taking note of various earlier judgments, in M. Mohan u. State Represented the Deputy Page 15 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined Superintendent of Police, (2011) 3 SCC 626. the Supreme Court held that "Abetment involves mental 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 HC-NIC Page 12 of 15 Created On Sun Dec 06 01:54:01 IST 2015 R/CR.MA/6788/2015 ORDER 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 Page 16 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no 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."
12. Having regard to the provisions of Sections 107 and 306 of the Indian Penal Code and the principle laid down by the Supreme 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 Page 17 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined section and there should be direct and active role by the accused, which led the deceased to commit the suicide, that is to say that there cannot be same evidence of "instigation" or "initial assistance" by the accused to commit suicide by the victim/deceased.
13. The Hon'ble Apex Court in the recent decision in case of Mahmood Ali & Ors. v. State of U.P. & Ors. , rendered in Criminal Appeal No.2341 of 2023, observed and held as under:
"11. The entire case put up by the first informant on the face of it appears to be concocted and fabricated. At this stage, we may refer to the parameters laid down by this Court for quashing of an FIR in the case of State of Haryana v. Bhajan Lal, AIR 1992 SC 604. The parameters are:-
"(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.Page 18 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024
NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(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."
We are of the view that the case of the present appellants falls within the parameters Nos. 1, 5 and 7 resply of Bhajan Lal (supra).
12. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking Page 19 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.
13. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in Page 20 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined the FIR can be considered for quashing an FIR. The Court held:-
"5. ...Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p. 869, para 6)
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
7. In dealing with the last category, it is important to bear in mind the distinction Page 21 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death....." (Emphasis supplied)
14. 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, the High Court has inherent power to act ex debito justitiae i.e., to do real and substantial justice, or to prevent abuse of the process of the Court. The powers being very wide in itself imposes a solemn duty on the Courts, requiring great caution in its exercise. 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 Page 22 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024 NEUTRAL CITATION R/CR.MA/7991/2017 ORDER DATED: 05/04/2024 undefined exercised to stifle a legitimate prosecution. However, the inherent power or the extra-ordinary power conferred upon the High Court, entitles the said Court to quash a proceeding, if it 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, from the aforesaid discussion, I am of the opinion 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.
15. In the result, the application succeeds and is hereby allowed. Accordingly, the FIR being C.R.No.I- 24 of 2017 registered with Modasa Rural Police Station and consequential proceedings arising out of the said FIR are hereby quashed and set aside. Rule is made absolute.
(DIVYESH A. JOSHI,J) LAVKUMAR J JANI Page 23 of 23 Downloaded on : Fri Apr 19 21:12:12 IST 2024