Gujarat High Court
Ishwarbhai Prabhubhai Patel vs The State Of Gujarat on 16 July, 2018
Author: R.P.Dholaria
Bench: R.P.Dholaria
R/CR.MA/13228/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13228 of 2018
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ISHWARBHAI PRABHUBHAI PATEL
Versus
THE STATE OF GUJARAT
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Appearance:
ASHUTOSH S DAVE(8865) for the PETITIONER(s) No. 1
MR JIGAR G GADHAVI(5613) for the PETITIONER(s) No. 1
MR. L.B.DABHI APP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 16/07/2018
ORAL ORDER
[1] Rule. Learned APP waives service of notice of rule for and on behalf of respondentState.
[2] By way of the present application the applicant has prayed for the following reliefs:
(a) Your Lordships may be pleased to allow the application and be pleased to grant Anticipatory Bail to the present applicant with regard to the FIR being C.R.No.I82 of 2018 filed at Idar Police Station dated 2.07.2018 for the offence under Section 306,506(1) and 114 of the Indian Penal Code (AnnexureA);
(b) During the pendency and final disposal of the present application, YOUR LORDSHIP may be pleased to pass necessary orders directing that no coercive steps may be taken against the applicant in connection with the FIR being C.R.No.I82 of 2018 filed at Idar Police Station dated 2.07.2018 for the offence under Section 306,506(1) and 114 of the Indian Penal Page 1 of 7 R/CR.MA/13228/2018 ORDER Code.
(c) To pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;
[3] The impugned FIR reads as under: My name is Mahendihasan s/o Ismaelbhai Alibhai Matadar, aged 42 years, occupation
- service, resident of Ganeshpura, Idar Taluka, Sabarkantha District, Mobile no. 7623985386.
Having come personally, I declare and dictate my facts of complaint that I am a native of the above mentioned address and I am working as a manager in Darshan Hotel located at Sarkhej in Ahmedabad. We are two brothers and two sisters, wherein Fatemaben is the eldest and she was married with Shabbirali Nurbhai Mokanushiya of our village. I am younger to her and Jahiraben is younger to me and she is married with Abidlai Sharifbhai Momin of our village. Zakirali is younger to her and he is working as a manager in Vishala Hotel at Bardoli. I have two daughters and one son, whereof the eldest named Merajfatima is married with Akbarali Zakirbhai Moknushiya of our village. Fatehali is younger to her and he is studying in 10th Standard. Shirinfatima, aged 14 years, is younger to him. The name of my wife is Fizaben. The name of my mother is Avaliben, who is not alive. My father used to drive the school bus of Madina Tul Ilm School of Kishorgadh village and he used to commute from the house everyday. He had informed me that as he needed money, he had borrowed money on interest from various persons. As he did not repay the money within time limit, summons and warrants were issued by Vadali Court under Negotiable Act for the cheques issued by him. As a need arose in this matter, my father borrowed one lakh rupees at the interest rate of six percent from Page 2 of 7 R/CR.MA/13228/2018 ORDER Patel Jigneshbhai Revabhai @ Amratbhai Patel, resident of Hathrava, Ta. Vadali before two years from now and as the money was not repaid, he had filed case of cheque return against my father in Vadali Court. My father had borrowed three lakh rupees at the interest rate of six percent from the owner Rudhrani Finance, located at Jadar Station namely Ishwarbhai Prabhudas Patel, resident of Rudaradi, Ta. Idar and he had also borrowed one and half lakh rupees from Durgeshbhai Jivabhai Barot, resident of Gamdi, Ta. Vadali - owner of Avkar Hotel. Though he had repaid this amount, these three persons were frequently asking to repay the outstanding interest and my father had informed me and my brother that he was threatened at Idar Bus Stand at four o'clock in the evening on 22/06/2018 and they were frequently asking to repay the money.
In the night of last 23/06/2018, when my wife Fizaben, my son Fatehali, my uncle Migdadali Alibhai Moknushiya and Shabbirali Alibhai Moknushiya etc. were at the house and my brother Zakirali and I were on our job, I received a phone call of my brotherinlaw Abidali Sharifbhai Momin at about half past one o'clock at night and he told me to reach at home immediately. Therefore, I reached to Cope Healthcare Hospital, Himmatnagar at half past two o'clock and saw that as my father had consumed poisonous medicine, he was under treatment and he died during treatment at three o'clock in the night. As the doctor informed B - Division Police Station, Himmatnagar, the police head constable arrived and drew panchnama and during this, a suicide note written with a ballpen on a lining paper was found from the pocket of my father's pant, wherein it was written that " I, Ismail Ali Matadar, write before my death that I am a native of Ganeshpura. As I was in need of money before two years, I borrowed one lakh rupees at the interest rate of 6% from Jigneshbhai Revabhai Patel, resident of Page 3 of 7 R/CR.MA/13228/2018 ORDER Hatharvala, rupees three lakhs at the interest rate of 6% from the Finance company of Ishwarbhai Patel and one and a half lakh rupees from Dugeshbhai Barot owner of Aavkar Hotel. Though I have repaid their amount, these three persons used to threat me frequently to pay two and a half lakhs rupees as an outstanding amount of interest and I was threatened by these persons on 22/06/2018 at 04:00 O'clock in the evening at Idar Bus Satnd. As a result of their harassment, today I have taken such step in the night. I do not have any other option but to die. Suicide note bearing signature of Momin Ismailbhai Alibhai was seized by the police in presence of pancha. After performing postmortem of my father's dead body at the Civil Hospital, Himmatnagar, the same was handed over to me.
Thereafter, ritual of burial of my father's dead body was done. When I asked my wife Fizaben, she told me that father was receiving threatening calls on his phone number 9586604243 since many days for the recovery of money and as a result of such calls, he was under tension. Police also used to come to home frequently due to summons and warrants from Vadali Court and therefore, he consumed poison on 22/06/2018 at 11:00 O'clock in the night under such tense situation. When his soninlaw Aabidali, uncle Sabbirali, Migdadali and I asked him, he told that he has consumed poison. Therefore, he was admitted in Satyam Hospital in Idar at 01:00 O'clock in the night on 23/06/2018. From there, at 02:05 O'clock in the night, he was shifted to Hope Health Care, Himmatnagar, for further treatment. There, he died during the treatment at 03:00 O'clock in the night. As I was busy in rituals and after death rites of my father, I have come today to lodge the complaint.
Thus, as my father Ismailbhai Alibhai Matadr, age:65 years, borrowed money on interest from (1) Patel Page 4 of 7 R/CR.MA/13228/2018 ORDER Jigneshbhai Revabhai alias Amratbhai Patel, residing Hatharva, Ta. Vadali (2) Ishwarbhai Prabhudas Patel, residing Rudardi, Ta. Idar (3) Durgeshbhai Jivabhai Barot, residing Gamadi, Ta. Vadali, these persons used to threat and caused harassment to my father by making frequent demand of their money from him. As a result of that, my father consumed poison and died as he was deeply hurt and pressurized by aforesaid persons. Hence, I lodge complaint to take legal steps against these three persons. My witnesses are the persons mentioned in my complaint and whoever that may reveal during the investigation.
As above facts are true and correct as dictated by me, I put my signature thereunder.
Before me, Sd/ (A.V.Desai) Incharge Police Inspector Police Station, Idar.
[3] Mr.Jigar G Gadhavi, learned advocate for the applicant states that the applicant herein is aged about 58 years and he is not running any finance company/firm. Even the allegations in the FIR does not constitute any instigation nor any intentional aiding and in fact, there is no case of conspiracy at all. Thus, when the very ingredients of the offence of abetment(to suicide) as provided under Section 107 of the Indian Penal Code are absent, it cannot be said that any offence under Section 306 of the Indian Penal Code is committed by the present applicant. He further states that the applicant is not involved in the heinous crime. In support of his submissions, Mr. Gadhvi relied upon several decisions in the cases of Page 5 of 7 R/CR.MA/13228/2018 ORDER Gangula Mohan Reddy Vs. State of Andhra Pradesh reported in (2010)1 SCC 750, Madan Mohan Singh Vs. State of Gujarat and Anr. reported in (2010)8 SCC 628, Chitresh Kumar Chopra Vs. State(Government of NCT of Delhi)reported in (2009)16SCC605 and Sanju Allias Sanjay Singh Sengar Vs. State of M.P. Reported in (2002)5 SCC 371. Lastly, Mr. Gadhvi requested that in view of the above, this Court may exercise the discretion in favour of the applicant under Section 438 of the Criminal Procedure Code and enlarge the applicant on anticipatory bail.
[4] Learned APP appearing on behalf of the respondentState has opposed grant of anticipatory bail looking to the nature and gravity of the offence and requests to this Court not to exercise the discretion in favour of the applicant under Section 438 of the Code.
[5] Heard learned advocates for the respective parties. This Court gone through the material available on record and perused the FIR as well as suicide note. The suicide note itself clearly indicates the facts, which are extracted below: A suicide note written with a ballpen on a lining paper was found from the pocket of my father's pant, wherein it was written that "I, Ismail Ali Matadar, write before my death that I am a native of Ganeshpura. As I was in need of money, before two years I borrowed one lakh rupees at the interest rate of 6% from Jigneshbhai Revabhai Patel, resident of Hatharvala, rupees three lakhs at the Page 6 of 7 R/CR.MA/13228/2018 ORDER interest rate of 6% from the Finance company of Ishwarbhai Patel and one and a half lakh rupees from Dugeshbhai Barot owner of Aavkar Hotel. Though, I have repaid their amount, these three persons used to threat me frequently to pay two and a half lakhs rupees as an outstanding amount of interest and I was threatened by these persons on 22/06/2018 at 04:00 O'clock in the evening at Idar Bus Satnd. As a result of their harassment, today I have taken such step in the night. I do not have any other option but to die."
The suicide note itself clearly indicates as to how the present applicant is involved and continuously instigated the victim to commit the suicide. The aforesaid judgments which are cited above by the learned advocate for the applicant, are not applicable to the facts of the present case. As a result, instigation as well as commission of suicide itself clearly appear indication of mens rea on the part of the present applicant.
[6] Considering the peculiar facts and circumstances of the present case, this Court is not inclined to grant anticipatory bail at this stage. Hence the present application is hereby rejected. Rule is discharged.
(R.P.DHOLARIA, J) MANOJ KUMAR Page 7 of 7