Gujarat High Court
Maganbhai Ukabhai Posiya vs State Of Gujarat on 18 August, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/8311/2021 JUDGMENT DATED: 18/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 8311 of 2021
With
R/CRIMINAL MISC. APPLICATION NO. 10879 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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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MAGANBHAI UKABHAI POSIYA
Versus
STATE OF GUJARAT
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Appearance:
MR K.S. CHANDRANI FOR MR TANMAY B KARIA (6833) for the
Applicant(s) No. 1,2
MR. NILAY A THAKER (7275) for the Applicant(s) No. 1,2
MR JENISH D RUPARELIYA (10660) for the Respondent(s) No. 2
MR. SURAJ A SHUKLA(7185) for the Respondent(s) No. 2
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 18/08/2021
ORAL JUDGMENT
Rule. Learned advocates waive service of notice of rule on behalf Page 1 of 12 Downloaded on : Sun Jan 16 08:53:47 IST 2022 R/CR.MA/8311/2021 JUDGMENT DATED: 18/08/2021 of the respective respondents. With the consent of both the sides, the matters are heard finally.
1. Both the petitions are filed with the prayer to quash and set aside the First Information Report being FIR No.11213006210092 registered with Bhayavdar Police Station, Rajkot Rural for the offences punishable under Sections 306, 504, 506(2) and 114 of IPC and the consequential proceedings initiated in pursuance thereof qua the petitioners.
2. Heard learned advocate Mr. K.S. Chandrani appearing with learned advocate Mr. Tanmay Karia for the applicants, learned advocate Mr. Suraj Shukla for respondent No.2-original complainant and learned APP Mr. Pranav Trivedi appearing for the respondent-State.
3. Both the petitions arise out of the same First Information Report and involve identical questions on law and facts and hence, they are decided by this common order.
4. The facts in brief are that the petitioners herein are running a Firm in the name and style of Madhuvan Gold Art. According to the petitioners, they came into contact with one Mahipatsinh Chudasama and on learning about the good business income of accused No.1, said Mahipatsinh Chudasama along with other persons decided to join the petitioners' Firm and invested some amount by way of gold and thereby, became Partners in said Madhuvan Gold Art. It is stated that after some time, said Mahipatsinh Chudasama asked for returning the amount so invested, which was repaid by accused No.1 in the form of cash, gold and other assets, which, ultimately, led to retirement of said Mahipatsinh Chudasama from the partnership Firm. It is further stated that said Page 2 of 12 Downloaded on : Sun Jan 16 08:53:47 IST 2022 R/CR.MA/8311/2021 JUDGMENT DATED: 18/08/2021 Mahipatsinh Chudasama and his associates had forced and pressurized accused Nos.1 to 4 and their family members in order to extract more money from them. They had also beaten them up, abducted them and had pressurized them for extracting more money / assets from accused No.1 and his family and took away the cheque book of accused No.1.
5. Learned advocate Mr. Chandrani submitted that accused No.1 - Ladlesh Vinodrai Patadiya had approached the police to lodge a complaint against said Mahipatsinh Chudasama and others but the police failed to register a First Information Report nor any action was taken by the concerned police officer as he belonged to the same caste. The accused No.1, thereafter, approached the Court for issuance of directions for registration of First Information Report. In spite of the order of the Court, the police was not willing to proceed against said Mahipatsinh Chudasama and others. It was stated that as the accused No.1 had failed in getting the First Information Report registered, he gave an application on 16.04.2019 to the Hon'ble Chief Minister of the State, on which, the Office of the Hon'ble Chief Minister asked the police concerned to do the needful in the matter. Learned advocate Mr. Chandrani further submitted that in spite of the communication from the Office of the Chief Minister, no action was taken on the written complaint given by the petitioners. Therefore, the petitioners preferred an application seeking transfer of investigation on 03.09.2019. The accused No.1 also made a representation to the Office of Hon'ble Prime Minister of India, the Hon'ble President of India and other Constitutional Heads by way of postal communication dated 04.10.2019. The petitioners also made a representation to the District Superintendent of Police, the I.G. of Police, the Home Minister of the State and others on 05.01.2021 requesting to take action on the basis of the representation dated 16.04.2019. The Page 3 of 12 Downloaded on : Sun Jan 16 08:53:47 IST 2022 R/CR.MA/8311/2021 JUDGMENT DATED: 18/08/2021 petitioner Nos.1 and 2 personally met the I.G. of Police, Gandhinagar, who, in turn, communicated the D.S.P., Junagadh as also the Dy. Superintendent of Police, Mangrol, to whom the investigation was handed over. Learned advocate Mr. Chandrani submitted that the cheques, which were forcefully obtained by Mahipatsinh Chudasama and others, were misused and they had filed different complaints in different Cities under the Negotiable Instruments Act. One such complaint was filed before the trial Court at Rajkot in Criminal Inquiry No.595 of 2018.
5.1 In connection to the impugned First Information Report, relying on the grounds raised in the petitions, learned advocate Mr. Chandrani submitted that the petitioners and respondent No.2-de facto complainant are not known to each other and that they have never come into contact with each other. Neither the deceased was known nor any transactions were entered into with him in the past. The allegation made in the impugned complaint about the deceased having visited Madhuvan Gold Art and having met accused No.1 is incorrect, as the said Firm was sold on 18.07.2019 to one Devendra Mandaliya of Jamnagar, i.e. Navnit Jewellers. He further states that on account of fear, pressure and threat of Mahipatsinh Chudasama, the accused Nos.1 to 4 and family members had left Junagadh District in the month of September 2019 and since then they are running from pillar to post for getting the First Information Report registered.
5.2 Learned advocate Mr. Chandrani submits that the impugned complaint has been filed at the instance of said Mahipatsinh Chudasama and respondent No.2 is the de-facto complainant. They both belong to the same Caste and are relatives. While drawing attention to the recitals in the First Information Report, it was submitted that the complaint has been Page 4 of 12 Downloaded on : Sun Jan 16 08:53:47 IST 2022 R/CR.MA/8311/2021 JUDGMENT DATED: 18/08/2021 registered belatedly after a period of about 18 days of the alleged incident. It is contended by the petitioners that they have been roped in because the petitioners have been cited as witnesses in the First Information Report filed against Mahipatsinh Chudasama and the complaint is nothing but a clear abuse of the process of law and has been filed with a mala fide intention and ulterior motive. Learned advocate Mr. Chandrani states that it could be recognized from the Facebook page of Nirav Vyas, where he has shared photographs of the deceased, that the persons who had commented therein have been arraigned as accused, i.e. Nirav Vyas, Kaushik Rajgor and Navghansinh Chudasama, who are real brothers of Mahipatsinh Chudasama, which suggests that the deceased and respondent No.2 are related and the death of the deceased has been misused to harass the petitioners. Learned advocate Mr. Chandrani further submits that the First Information Report also suggests that allegation has also been made against one Narad Badla regarding some Hotel which was belonging to the deceased and said Narad Badla wanted to set up a petrol pump behind the Hotel. Allegations are also made that said Narad Badla had also harassed the deceased. Thus, the petitioners have been wrongly arraigned as accused in the impugned complaint.
6. Learned advocate Mr. Chandrani, relying on the judgment in the case of Vaijnath Kondiba Khandke V. State of Maharashtra and another, 2018 (3) Crimes (SC) 29, submits that there is no instigation from the side of the petitioners so as to consider it as a case of abetment to suicide. It was submitted that the petitioners, in no way, aided the commission of the alleged crime.
6.1 Relying on the judgment in the case of State of Kerala and others v. S. Unnikrishnan Nair and others, 2015 (3) Crimes (SC) 293, it was Page 5 of 12 Downloaded on : Sun Jan 16 08:53:47 IST 2022 R/CR.MA/8311/2021 JUDGMENT DATED: 18/08/2021 submitted by learned advocate Mr. Chandrani that abetment involves a mental process of instigating a person or intentionally aiding a person in the doing of a thing. Without a positive act on the part of the accused to instigate or aid in the commission of suicide, conviction cannot be sustained.
6.2 Learned advocate Mr. Chandrani while relying upon the intention of the Legislature submitted that the petitioners carried no mens rea to commit the alleged offence. He placed reliance on the judgment of the Apex Court rendered in the case of Arnab Manoranjan Goswami V. State of Maharashtra and ors., 2020 (4) Crimes (SC) 428 and submitted that while dealing with a petition under Section 482 of Cr.P.C., the Court has to consider whether the ingredients of the alleged offence are made out or not.
7. Learned advocate Mr. Suraj Shukla appearing for respondent No.2, de-facto complainant, while relying on the affidavit, submitted that the complainant is the son of the deceased and is aged about 19 years. The deceased had three daughters and out of them, one is married. For the marriage of his second daughter, during 08.02.2018 to 05.03.2018, the deceased had deposited an amount of Rs.3,00,000/- as well as gold ornaments weighing about 118 grams with said Madhuvan Gold Art with the expectation that, in return, he would get 210 grams of gold after a year when the marriage of his second daughter was fixed. In the year 2019, the deceased along with the respondent No.2 went to Madhuvan Gold Art where the petitioners were present. Upon asking about the ornaments, the petitioners refused to hand over the same. When the deceased told them that the marriage of his daughter has already been fixed and that without those ornaments he would not be in a position to Page 6 of 12 Downloaded on : Sun Jan 16 08:53:47 IST 2022 R/CR.MA/8311/2021 JUDGMENT DATED: 18/08/2021 perform the marriage, the petitioners abused the deceased and threatened him with dire consequences, if he had complained about them before the police. Learned advocate Mr. Shukla submits that as per the complaint, the accused Nos. 5 and 6 had intervened and had told the deceased that they are now going to become Partners in the Firm and thereby, assured the deceased of receiving back the money along with the ornaments and they had issued two cheques in favour of the deceased. Since the deceased did not get the money and gold ornaments back from the accused persons, the marriage of his daughter got cancelled at that point of time and thereafter, in January 2020, the deceased along with the complainant and one Rutvikbhai again went to Madhuvan Gold Art where they found accused Nos.1 and 2 along with the petitioners and on asking them about the gold ornaments and on informing them about the fixing of the date of marriage of his daughter, the petitioners abused the deceased and refused to hand-over the gold ornaments. As a result thereof, the deceased had to sell one of his lands situated at Satovad Vavdi, Taluka Jamkandorna, District Rajkot to one Makubha Jadeja for performing the marriage of his second daughter. It is alleged that the petitioners and co-accused exerted tremendous mental pressure on the deceased and because of that, on 20.02.2021, the deceased committed suicide.
7.1 Learned advocate Mr. Shukla further submits that the present petition has been filed at a primary stage as investigation has not yet concluded. Statements of witnesses are to be recorded. The criminal acts of the petitioners and co-accused are yet to be brought on record. It is submitted that the Investigating Officer has also filed a report for adding sections 406 and 420 of IPC and the same has been ordered to be kept with the complaint and thus, it has become a part of the complaint.
Page 7 of 12 Downloaded on : Sun Jan 16 08:53:47 IST 2022R/CR.MA/8311/2021 JUDGMENT DATED: 18/08/2021 However, the petitioners have deliberately suppressed the above fact from this Court. While referring to the copy of the Affidavit filed by the Investigating Officer before the trial Court during the hearing of the anticipatory bail applications, learned advocate Mr. Shukla submitted that the petitioners are head strong persons and that around nine criminal cases have been registered against them.
8. Learned APP Mr. Pranav Trivedi submits that the challenge to the First Information Report is at an initial stage. Section 306 of IPC read with Section 107 takes into consideration the act of the person/s, who instigates the commission of the alleged crime or engages with one or more persons in any conspiracy and the Court during the trial has to consider whether there is any intentional aiding for the commission of the alleged crime. He submits that the averments in the First Information Report suggests abetment by the accused in the commission of the alleged crime and that it is only during the trial that ingredients of the said Section could be analysed taking into consideration the facts of the case and the evidence of witnesses. He, therefore, prayed to reject the petition.
9. It is to be noted that the present petitioners are here for quashing the First Information Report. The facts of the complaint suggest that the deceased came in contact with the persons attached with Madhuvan Gold Art in the year 2018. The transactions continued during the year 2019 and again in January 2020, the deceased and the complainant had gone to meet the Partners of Madhuvan Gold Art in relation to gold ornaments, which he required for the marriage of his daughter. It is alleged by the petitioners that the present complainant, respondent No.2 herein, has been made an instrument by Mahipatsinh Chudasama and to settle the scores, the impugned complaint has been lodged against them. The petitioners Page 8 of 12 Downloaded on : Sun Jan 16 08:53:47 IST 2022 R/CR.MA/8311/2021 JUDGMENT DATED: 18/08/2021 had approached different authorities for registration of complaint against Mahipatsinh Chudasama and others, but all the efforts had failed and therefore, with false facts, the impugned complaint has been filed.
10. There are specific allegations about making investments in Madhuvan Gold Art. The deceased wanted good returns for his investment so that he could get his daughter married. In spite of all his efforts, as per the First Information Report, he could not get back his gold ornaments or money and he stated that the deceased had to sell one of his lands situated at Satovad Vavdi, Taluka Jamkandorna, District Rajkot.
11. The judgment in the cases of Vaijnath Kondiba Khandke V. State of Maharashtra (supra) is in the context of some work being assigned by the accused to the deceased and therefore, the Court did not find existence of any guilty mind or criminal intent on the part of the accused concerned. Hence, the said judgment would not be applicable to the facts of the present case.
12. The main challenge to the impugned complaint has been given on the ground that respondent No.2, the de-facto complainant, is playing in the hands of Mahipatsinh Chudasama and his associates. Reliance is placed on the messages sent by the community members and accused persons; however, the said grounds could not be made applicable at the present stage. The Court, during the stage of exercising powers under Section 482 of Cr.P.C., has to prima facie see the facts of the case. Specific details have been given by respondent No.2 in the impugned complaint and there are allegations and counter-allegations between the petitioners and Mahipatsinh Chudasama and others. This Court has to see the case from the perspective of the respondent-complainant too.
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13. Section 482 of Cr.P.C. confers wide powers on the Court to do justice and to ensure that the process of the Court is not permitted to be misused and / or abused. There is no total ban on the exercise of the inherent powers where abuse of the process of the Court or any other extra-ordinary situation invites the Court's jurisdiction. While exercising the inherent powers, the Court has to do real and substantial justice for the administration of which alone the Courts exist. If the facts disclose the commission of criminal offence and the ingredients of the offence are satisfied, such criminal proceedings cannot be quashed. Section 482 of Cr.P.C. refers to the "inherent jurisdiction", "to prevent abuse of process"
and "to secure the ends of justice", which are terms incapable of having a precise definition or enumeration and capable, at the most, of test, according to well established principles of criminal jurisprudence. The ends of justice are to be understood by ascertainment of the truth as to the facts on balance of evidence on each side. There is no limit to the powers under Section 482 of Cr.P.C. but such powers have to be exercised with due care and caution. If the uncontroverted allegations, as made out from the record of the case and the documents submitted therewith, prima facie, establish an offence, then the Court should be slow in entertaining the application for quashing the First Information Report. While doing so, no meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. The process of the Court cannot be permitted to be used for an oblique or ultimate / ulterior purpose.
14. In the case of Goura Venkata Reddy v. State of A.P., (2003) 12 Page 10 of 12 Downloaded on : Sun Jan 16 08:53:47 IST 2022 R/CR.MA/8311/2021 JUDGMENT DATED: 18/08/2021 SCC 469, the Apex Court has discussed "abetment" falling in Section 107 of IPC. In para-8, it has been observed as under:-
"8. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime.
The word 'instigate' literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment then the offender is to be punished with the punishment provided for the original offence. 'Act abetted' in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence. In the instant case, the abetted persons have been convicted for commission of offence punishable under Section 304. So in the case of A-1 it is Section 304 read with Section 109 IPC, that is attracted."
14.1 In other words, instigation has to be gathered from the circumstances of the case. There may be cases where circumstances are created by the accused so that the person may get frustrated and find it difficult to continue his existence. It is only the trial Court which can examine the facts and find out whether there was any intention to provoke, insight or encourage the doing of the act leading to the commission of suicide. Abetment involves a mental process of instigating a person or intentionally aiding a person to commit suicide. At this primary stage, this Court cannot enter into the intricacies in relation to the facts alleged in the complaint. In the opinion of this Court, the matter needs further investigation. The statement of the witnesses are required to Page 11 of 12 Downloaded on : Sun Jan 16 08:53:47 IST 2022 R/CR.MA/8311/2021 JUDGMENT DATED: 18/08/2021 be recorded and it is only the trial Court, which can examine the facts of the case and to lead evidence to consider whether matter would fall under Section 306 read with Section 107 of IPC. Hence, this Court does not find this to be a fit case wherein the inherent powers under Section 482 of Cr.P.C. could be exercised in favour of the petitioners.
15. In the result, both the petitions are rejected. Rule is discharged.
( GITA GOPI, J ) PRAVIN KARUNAN Page 12 of 12 Downloaded on : Sun Jan 16 08:53:47 IST 2022