NEUTRAL CITATION
R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 25062 of 2017
With
R/CRIMINAL MISC.APPLICATION NO. 25758 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
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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DEVENDRA @ DEVUBHAI MAGANBHAI VAVIYA & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR PRAVIN GONDALIYA(1974) for the Applicant(s) No. 1,2
MR. DHRUVIN U MEHTA(9993) for the Respondent(s) No. 2
MR. SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 09/08/2023
COMMON ORAL JUDGMENT
1. Since the issues involved in the present applications are identical in nature, Criminal Misc. Application Page 1 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined No.25062 of 2017 is considered as leading matter.
2. The present application is filed for seeking following main reliefs:-
"(A) admit this Criminal Misc. Application; (B) allow this Criminal Misc. Application by quashing and setting aside the impugned FIR being I CR No. 123/2017 registered with Palsana Police Station, Surat and further be pleased to quash all the further proceedings arising out the same in the interest of justice;
(C) pending admission and till final disposal of this application, grant stay of further investigation/proceeding of 1 CR No.123/2017 registered with Palsana Police Station, Surat in the interest of justice;
(D) grant such other and further relief/s as may be deemed fit, just and proper, in the facts and circumstances of the case."
3. Brief facts as per the case of the applicant in this application, i.e., Criminal Misc. Application No.25062 of Page 2 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined 2017 are as such that the on 17.8.2017, the husband of complainant - Kamleshbhai Bhesaniya consumed poison at his construction site and was admitted in the hospital. The husband of the complainant passed away on 3.9.2017 in the hospital. It is further the case of the applicants in this application that the complainant filed an FIR before Palsana Police Station for the offence punishable under Sections 306 and 114 of IPC against the applicants and others alleging that her husband committed suicide due to pressure of the accused as he borrowed the amount on interest from the accused persons and there was pressure upon him. The same is registered as C.R. No. I 123 of 2017. Hence the present applications are preferred.
4. Heard learned senior advocate Mr. I.H. Syed assisted by Mr. Pravin Gondaliya, learned advocate for the applicants in Criminal Misc. Application No.25062 of 2017 and Mr. Chirag Parikh, learned advocate for the applicants in Criminal Misc. Application No.25758 of 2017, Mr. Dhruvin U. Mehta, learned advocate for the respondent No.2 - complainant as well as Mr. Soaham Joshi, learned Additional Public Prosecutor (APP) for the Page 3 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined respondent No.1 - State of Gujarat.
5.1 Learned senior advocate Mr. I.H. Syed, assisted by Mr. Pravin Gondaliya, learned advocate for the applicants in Criminal Misc. Application No.25062 of 2017, has emphasized the averments made in the impugned F.I.R., which has been filed under Sections 306 and 114 of the Indian Penal Code, Mr. Syed highlighted that the F.I.R. was lodged on 4.10.2017, indicating a delay of one and a half months from the occurrence of the offense, which took place prior to 17.8.2017.
5.2 He pointed out that the F.I.R. lacks necessary averments concerning instigation or abetment, which are essential under Sections 107 and 306 of the Indian Penal Code. Additionally, he underscored the absence of any indication in the F.I.R. that establishes a direct link between the acts of the present applicants and the alleged suicide, which would meet the requirements of such charges. Therefore, there is no proximity with the incident occurred and the allegations made against the present applicants regarding such duress or harassment. 5.3 Mr. Syed further contended that the dispute at Page 4 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined hand is essentially of a civil nature, whereby at the best from the bare reading of F.I.R., it can be construed that some amount is borrowed by the husband of the complainant and he could not repay the stated amount. Therefore, on making demand for return of such money, the husband of the complainant has committed suicide that is sum and substance of the allegation made in the F.I.R.
5.4 Moreover, he has asserted that even considering the above, incident was occurred much prior to 17.8.2017 and as per the say of the complainant, her husband was remained under the stress since long due to such demands made by the applicants and other individuals regarding the amount. Furthermore, he has submitted that merely finding any suicide note and video clip are prima facie not sufficient to establish that the offence as alleged in the F.I.R. is made out against the applicants. 5.6 Furthermore, he has submitted that Hon'ble Apex Court has time and again taken note of the mental status of such person, who commits suicide, and has also considered the case of the individuals against whom the accused person were made regarding the recovery of Page 5 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined money, which is lent to the deceased person leading to suicide due to insistence of recovery of such amount. 5.7 Furthermore, he has submitted that in view of the judgment of the Hon'ble Apex Court in the cases of (i) Jitul Jentilal Kotecha vs State of Gujarat and Others reported in 2021 SCC Online SC 1045, (ii) State of Kerala and Ors vs S. Unnikrishnan Nair and Ors. reported in (2015) 9 SCC 639, more specifically, paragraphs 18 is relevant. By relying on the observations made by the Hon'ble Apex Court that suicide reflects "species of fear", (iii) Gangula Mohan Reddy vs State Of A.P reported in (2010) 1 SCC 750, more specifically, paragraph 10 is relevant, and (iv) Madan Mohan Singh vs State Of Gujarat & Anr. reported in 2010 3 GLH 270, more specifically, paragraphs 8, 10 and 11 are relevant.
5.8 He has also relied on the judgment of Co-ordinate Bench of this Court in the case of Vallabhbjhai Vaghjibhai Vaghasiya versus State of Gujarat & Others rendered in Criminal Misc. Application No.11957 of 2015 dated 5.5.2017, more specifically, paragraphs 8 and 11 are relevant.
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NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined 5.9 Additionally, he stressed that there was no existing debt of the deceased towards the present applicants at the time of the incident, as the applicants were merely making demands regarding an already available amount. Thus, he contended that the applicants have been falsely implicated in the incident, leading to a belated filing of the F.I.R. Therefore, he prays to exercise its inherent jurisdiction under Section 482 of the Criminal Procedure Code in view of the judgment of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, and the impugned F.I.R. is required to be quashed, which would amount to abuse of process of law.
6. Mr. Chirag Parikh, learned advocate for the applicants in Criminal Misc. Application No.25758 of 2017 has also adopted the contentions raised by the learned senior advocate for the applicants and has further submitted that in view of the subsequent development as actually the complainant has no grievance against the present applicants, and his case cannot be considered differently by considering the fact that there is no grievance survives qua the present Page 7 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined applicants. Therefore, he prays to allow the Criminal Misc. Application No.25758 of 2017.
7.1 On the contrary, Mr. Dhruvin U. Mehta, learned advocate for the respondent No.2 - complainant and Mr. Soaham Joshi, learned Additional Public Prosecutor (APP) have raised almost identical contentions by opposing the contentions of the applicants and prayers made in the present applications. They have submitted that on bare reading of the F.I.R., prima facie, the offence is made out against the applicants. Further, they have submitted the if we peruse the contends of the F.I.R., it is clear that the complainant has given specific explanation that why she has filed complaint after a delay of one and a half months, and more specifically, when there is suicide note of the deceased and also, some call recording by way of video recording available on the record. The recording has been submitted for verification to the Forensic Science Laboratory (F.S.L.), that the suicide note was executed by the deceased. Additionally, the video recording has been affirmed as valid, and the evidence appears to be genuine based on the prima facie opinion of the F.S.L.
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NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined 7.2 Therefore, considering the averment made in the complaint, the ingredients under Section 306 of the Indian Penal Code are clearly established as there is continuous harassment to the deceased by the applicants and other alleged individuals. They have also submitted that considering the fact that they are asking for amount of huge interest, though the deceased has paid entire amount received from various persons, this is nothing but highhandedness of the accused persons, which led to committing suicide of the deceased. They have also pointed out that the judgments cited at the bar by the learned advocate for the applicants are not helpful to the case of the present applicants. 7.3 Moreover, they have submitted that in view of recent judgment of the Hon'ble Apex Court in the cases of (i) Mahendra K.C. versus State of Karnataka and Anr. reported in (2022) 2 SCC 129, and (ii) Praveen Pradhan versus State Of Uttranchal & Anr. reported in (2012) 9 SCC 734, let the applicants face the trial before the concerned trial court by dismissing this application as no case is made out to exercise the powers under Section 482 of the Criminal Procedure Code as there is sufficient Page 9 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined material, which connects the accused in the offence and merely dispute is settled with some of the accused between the complainant, itself is not a good ground for exercising the powers under Section 482, more specifically, when the case is made out on bare reading of the F.I.R. in view of the judgment of the Hon'ble Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra and Others reported in 2021 SCC OnLine SC 315, and more particularly para 80 is relevant.
8.1 I have heard the learned advocates representing the respective parties. I have considered the submissions made at the bar by the respective parties. It is an unfortunate incident that the husband of the complainant has lost his life by committing the suicide by ingesting poison due to pressure of the accused individuals as he has borrowed the money from them on interest-based arrangement.
8.2 The complaint reveals that the complainant's husband consumed poison on 17.8.2017 at his construction site and passed away on 3.9.2017. The existence of a suicide note in the form of a chit, written Page 10 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined by the complainant's husband, has also come to light. In this note, he listed the names of individuals whose harassment compelled him to commit suicide. The records also indicate that the complainant reached a compromise with some of the accused while the applicant's case was pending. Through this compromise, the complaints against some other accused have been quashed. 8.3 However, considering the facts of the present case, it is established that there exists a suicide note, which was composed by the deceased. This fact is evident from the documents submitted on record, along with the attached applications. As per the statement provided by the complainant on 4.10.2017, it is disclosed that the deceased--complainant's husband was involved in both construction and land dealings. Furthermore, it is also revealed that deceased was also doing business in the name Radhika Builders with the partnership of one Bhavesh Pkirdhar, Ramesh Gordhanbhai Kathiriya, Ashok Narsinhbhai Bhangadiya. Starting from July 2017, the complainant observed that whenever her husband returned home, he exhibited signs of mental distress. Upon inquiring, she discovered that individuals including Page 11 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined Devubhai Maganbhai Vaviya, Maganbhai Vaviya, Nimeshbhai Sakariya, Bipinbhai Karamdia, Tarangbhai Kathiriya, and his father Devshibhai Kathiriya had provided financial assistance to her husband-- Kamleshbhai. While the deceased had already repaid the entire principal amount along with accumulated interest to the concerned individuals, these individuals were persistently demanding money. Notably, they employed threats and even requested additional funds along with additional interest. Subsequently, on 17.8.2017, she became aware that her husband had consumed poison. Consequently, during the course of his treatment, her husband--Kampleshbhai passed away on 3.9.2017. Following the unfortunate demise of her husband, while searching through his personal belongings, she discovered a suicide note in the deceased's wallet. The note, dated 17.8.2017, outlined the reasons behind his decision to commit suicide. He mentioned that the individuals named in the suicide note had been subjecting him to harassment through threats and continued demands for additional money, despite him having already repaid the owed amount along with accrued interest. Furthermore, she found a video clip on the deceased's mobile phone. Page 12 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023
NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined The CD containing this video clip has also been submitted to the concerned Police Authority for necessary verification.
8.4 Taking into account the aforementioned details and considering the fact that the allegations are very specific that include the names of the present applicants in Cr.M.A. No. 25062 of 2017--specifically, Devendra alias Devubhai Maganbhai Vaviya, and Maganbhai Nanjibhai Vaviya as well as in Cr.M.A. 25758 of 2017, wherein the names of the accused are Tarangbhai Devshibhai Kathiriya and Devshibhai Bhavanbhai Kathiriya, these names are also explicitly mentioned within the aforementioned suicide note.
8.5 The Investigating Officer was directed to produce the current status of investigation. Today, when the matter is taken for hearing, learned APP has drawn attention of this Court towards the factum that the draft charge-sheet is ready and investigation has been concluded. it is evident that all the individuals accused in the complaint, including the applicants of this application, have been listed as accused in the mentioned said draft charge-sheet.
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NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined 8.6 In this background, now considering the submissions made at the bar, more particularly, learned advocate for the applicants that prima facie there is no proximity of the incident occurred on 17.8.2017 and as per the statement given by complainant - Amitaben, the deceased was feeling stressed from July 2017 onwards, hence, it cannot be said that there is some proximity. Even if we assume, for the sake of argument, that certain threats were issued, the proximity between the unfortunate occurrence on 17.8.2017 and the alleged threats made by the accused is lacking. 8.7 This factor itself is required to be considered as continuous harassment for the simple reason that first time the complainant came to know about such harassment. That itself is not sufficient to say that the giving threats were not continued. Whatever were disclosed in the F.I.R. is disclosed by way of whatever information complainant was having at the time of the lodging of F.I.R. During the course of investigation, the concerned Investigating Officer has also recorded the statement of various witnesses and has also recovered necessary documents and Muddamals. Based on the Page 14 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined report obtained from the Forensic Science Laboratory (F.S.L.), it is prima facie evident that the suicide note was composed by the deceased himself, as indicated by his handwriting. Furthermore, the F.S.L. examination of the video clip, which also underwent scrutiny, confirmed its authenticity and confirmed that it had not been altered in any way.
8.8 Therefore, prima facie, on the basis of suicide note itself, the names, given by the deceased due to which he was compelled to commit suicide, was present applicants and other accused individuals. There is no dispute regarding the judgment cited at the bar by the learned senior advocate Mr. Syed in support of his submission and this Court is of the opinion that the same is binding to this Court also but while considering the facts of the present case, it become apparent that the judgments, which are cited by the respondents are squarely applicable to the facts of the present case. From bare reading of the complaint and material available with the complaint viz., suicide note and video clip, prima facie, the ingredients of instigation and abetment as required under Sections 306 and 107 are Page 15 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined made out in the present case.
8.8.1 It is fruitful to refer the provisions of Sections 306, and 107 of the Indian Penal Code, as under:
"Section 306 in The Indian Penal Code:-
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.
Section 107 in The Indian Penal Code:-
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. 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 Page 16 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. 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 facilitate the commission thereof, is said to aid the doing of that act."
8.8.2 It is fruitful to refer the judgment of the Hon'ble Apex Court cited by the learned senior advocate Mr. Syed, in the case of Mahendra K.C. (supra), more specifically, paragraphs 22, 23, 27 to 29, 32, and 33 as under:
"22 Based on the above precedent, the High Court while exercising its power under Section 482 of the CrPC to quash the FIR instituted against the second respondent-accused should have applied the following two tests: i) whether the allegations made in the complaint, prima facie constitute an offence; and ii) whether the allegations are so improbable that a prudent man would not arrive at the conclusion that Page 17 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined there is sufficient ground to proceed with the complaint. Before proceeding further, it is imperative to briefly discuss the law on the abetment of suicide to determine if a prima facie case under Section 306 of the IPC has been made against the respondent-accused.
23. Section 306 of the IPC provides for punishment of the abetment of suicide:
"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." Section 107 of the IPC defines the expression "abetment": "107. Abetment of a thing- A person abets the doing of a thing, who-- First.--Instigates any person to do that thing; or (2019) 19 SCC 87 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 lakes 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.
27. While adjudicating on an application under Section 482 CrPC, the High Court in the present case Page 18 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined travelled far away from the parameters for the exercise of the jurisdiction. Essentially, the task before the High Court was to determine whether 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 did or did not prima facie constitute an offence or make out a case against the accused.
28. Instead of applying this settled principle, the High Court has proceeded to analyze from its own perspective the veracity of the allegations. It must be emphasized that this is not a case where the High Court has arrived at a conclusion that the allegations in the FIR or the complaint are so absurd and inherently improbable on the basis of which no prudent person could ever reach a just conclusion that there is sufficient ground for proceeding against the accused. Nor is this a case where the criminal proceeding is manifestly mala fide or has been instituted with an ulterior motive of taking vengeance on the accused. On the contrary, the specific allegations in the FIR and in the complaint find due reflection in the suicide note and establish a prima facie case for abetment of suicide within the meaning of Sections 306 and 107 of the IPC. The entire judgment of the High Court consists of a litany of surmises and conjectures and such an exercise is beyond the domain of proceeding Page 19 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined under section 482 of the CrPC. The High Court has proceeded to scrutinize what has been disclosed during the investigation, ignoring that the investigation had been stayed by an interim order of the High Court, during the pendency of the proceedings under section
482.
29. The High Court observed that a prima facie case for the commission of offence under Section 306 of the IPC is not made out since: i) the suicide note does not describe the specific threats; ii) details of the alleged demand of Rs. 8 lacs from the deceased by the respondent-accused are not set out in the suicide note; and iii) no material to corroborate the allegations detailed in the suicide note has been unearthed by the investigating agency. The High Court observed that since the deceased took considerable time to write a twelve page suicide note, "it would have been but natural for the author to set out the details". The High Court has evidently travelled far beyond the limits of its inherent power under Section 482 CrPC since instead of determining whether on a perusal of the complaint, a prima facie case is made out, it has analysed the sufficiency of the evidence with reference to the suicide note and has commented upon and made strong observations on the suicide note itself." Page 20 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023
NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined 8.8.3 It is fruitful to refer the judgment of the Hon'ble Apex Court in the case of Praveen Pradhan (supra), more specifically, paragraphs 16 to 19 are relevant, as under:
"16. This Court in Ramesh Kumar v. State of Chhattisgarh, AIR 2001 SC 3837, while dealing with a similar situation observed that what constitutes 'instigation' must necessarily and specifically be suggestive of the consequences. A reasonable certainty to incite the consequences must be capable of being spelt out. More so, a continued course of conduct is to create such circumstances that the deceased was left with no other option but to commit suicide.
17. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC.
However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (Vide: State of Punjab v. Iqbal Singh, AIR 1991 SC 1532; Surender v. State of Hayana, (2006) 12 SCC 375; Kishori Lal v. State of M.P., AIR 2007 SC 2457; and Sonti Rama Krishna v. Sonti Shanti Sree, Page 21 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined AIR 2009 SC 923.)
18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straight-jacket formula can be laid down to find out as to whether in a particular case there has been instigation which force the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. More so, while dealing with an application for quashing of the proceedings, a court cannot form a firm opinion, rather a tentative view that would evoke the presumption referred to under Section 228 Cr.P.C.
19. Thus, the case is required to be considered in the light of aforesaid settled legal propositions. In the instant case, alleged harassment had not been a casual feature, rather remained a matter of persistent harassment. It is not a case of a driver; or a man having an illicit relationship with a married woman, knowing that she also had another paramour; and Page 22 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined therefore, cannot be compared to the situation of the deceased in the instant case, who was a qualified graduate engineer and still suffered persistent harassment and humiliation and additionally, also had to endure continuous illegal demands made by the appellant, upon non-fulfillment of which, he would be mercilessly harassed by the appellant for a prolonged period of time. He had also been forced to work continuously for a long durations in the factory, vis-à- vis other employees which often even entered to 16-17 hours at a stretch. Such harassment, coupled with the utterance of words to the effect, that, "had there been any other person in his place, he would have certainly committed suicide" is what makes the present case distinct from the aforementioned cases considering the facts and circumstances of the present case, we do not think it is a case which requires any interference by this court as regards the impugned judgment and order of the High Court. The appeal is, therefore, dismissed accordingly."
8.8.4 Further, in the judgment of the Hon'ble Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra and Others reported in 2021 SCC OnLine SC 315, and more particularly para 80 is relevant, which is as under:
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NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined "80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
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iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere; Page 25 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023
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ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which Page 26 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable Page 27 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after Page 28 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order. xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied." 8.8.5 It is also fruitful to refer the judgment of the Hon'ble Apex Court in the case of Gangula Mohan Reddy (supra), more specifically, paragraphs 10, 15 and 17 are relevant as under:
"10. `Abetment' has been defined under section 107 of the Code. We deem it appropriate to reproduce section 107, which reads as under:
Page 29 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023
NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined "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 places in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aides, by any act or illegal omission, the doing of that thing."
12. Explanation 2 which has been inserted along with section 107 reads as under:
"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 facilitate the commission thereof, is said to aid the doing of that act."
15. In the instant case, the deceased was undoubtedly hyper sensitive to ordinary petulance, discord and differences which happen in our day-to-day life. Human sensitivity of each individual differs from the other. Different people behave differently in the same situation.
17. Abetment involves a mental process of instigating Page 30 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the Legislature and the ratio of the cases decided by this court is clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide."
8.8.6 It is also fruitful to refer the judgment of the Hon'ble Apex Court in the case of State of Kerala and Ors. (supra), more specifically, paragraph 18 is relevant as under:
"18. Before parting with the case, we are impelled to say something. Mr. Bhushan, learned counsel appearing for the respondent No. 1 & 2 has drawn our attention to a facet of earlier judgment of the High Court wherein it has been mentioned that at one time the deceased was pressurised by some superior officers. We have independently considered the material brought on record and arrived at our conclusion. But, regard being had to the suicide note and other concomitant facts Page 31 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined that have been unfurled, we are compelled to recapitulate the saying that suicide reflects a "species of fear". It is a sense of defeat that corrodes the inner soul and destroys the will power and forces one to abandon one's own responsibility. To think of self- annihilation because of something which is disagreeable or intolerable or unbearable, especially in a situation where one is required to perform public duty, has to be regarded as a non-valiant attitude that is scared of the immediate calamity or self-perceived consequence. We may hasten to add that our submission has nothing to do when a case under Section 306 IPC is registered in aid of Section 113A of the Evidence Act, 1872."
8.8.7 It is also fruitful to refer the judgment of this Court in the case of Vallabhbhai Vaghasiya versus State of Gujarat and Others rendered in Criminal Misc. Application No.11957 of 2015 dated 5.5.2017, more specifically, paragraphs 8 and 11 are relevant, as under:
"8. The Supreme Court, in the case of M. Mohan vs. State Represented by the Deputy Superintendent of Police, AIR 2011 SC 1238, observed in paras-45 and 46, as under;
"45. Abetment involved a mental process of instigating a person or intentionally aiding a Page 32 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
46.The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under section 306, IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide"
11. In the aforesaid context, I may refer to and rely on the observations of the Supreme Court in the case of M. Mohan Vs. Velmurugan and another, reported in A.I.R. 2011 Supreme Court 1238, in paras 43, 44, 45, 46, 47 and 50, which read as under:
"43. In State of West Bengal v. Orilal Jaiswal & Another (1994) 1 SCC 73 (AIR 1994 SC 1418), this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and Page 33 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined 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 difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference 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.
44. This court in 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 word "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 others. Each person has his own Page 34 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined idea of selfesteem and self-respect. Therefore,it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.
45. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
46. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.
47. In V.P. Shrivastava v. Indian Explosives Limited and Others (2010) 10 SCC 361, this court has held that when prima facie no case Page 35 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined is made out against the accused, then the High Court ought to have exercised the jurisdiction under section 482 of the Cr.PC and quashed the complaint.
50. Undoubtedly, the deceased had died
because of hanging. The deceased was
undoubtedly hyper-sensitive to ordinary
petulance, discord and differences which
happen in our day-to-day life. In a joint
family, instances of this kind are not very uncommon. Human sensitivity of each individual differs from person to person. Each individual has his own idea of self-esteem and self-respect. Different people behave differently in the same situation. It is unfortunate that such an episode of suicide had taken place in the family. But the question remains to be answered is whether the appellants can be connected with that unfortunate incident in any manner?"
8.9 Hence, considering the above referred judgments and settled position of law and considering the facts of the present case, whereby in the suicide note and video clip available on the record, there is specific allegation Page 36 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined regarding some monetary transaction with the accused persons by the deceased, which are also coming on the record of the matter, prima facie, ingredients of the Sections 306 and 107 is satisfied. Now the investigation is almost over and charge-sheet is about to be filed as it could not be filed due to pendency of this proceeding. The Hon'ble Apex Court in the case of (i) Praveen Pradhan (supra), (ii) Mahendra K.C. (supra), has consider various judgments including the leading judgment in the case of Sanju @ Sanjay Singh Sengar v. State of M.P., reported in AIR 2002 SC 1998, whereby the Hon'ble Apex Court has taken view that "when the accused asked the deceased to go and die" in that case also, the Hon'ble Apex Court has quashed the proceeding, after considering the judgment in the cases of Praveen Pradhan (supra) and Mahendra K.C. (supra) and subsequent judgments, the Hon'ble Apex Court has come to the conclusion that learned Single Judge of the High Court while exercising its power under Section 482 of the Criminal Procedure Code to quash the F.I.R. constituted against the accused person should have applied to test in the facts and circumstances of the present case (i) whether the allegation made in the Page 37 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined complaint prima facie constitute an offence, and (ii) whether the allegations are so improbable that a prudent man could not arrive at the conclusion that there is sufficient ground to proceed with the complaint. 8.10 Therefore, keeping in mind the abovementioned observations in the abovementioned judgments, more particularly, in the case of Mahendra K.C. (supra), I am of the opinion that in the present case, allegations made against the applicants are probable one and there is sufficient material to proceed pursuant to the allegations against the applicants. This Court should also keep in mind that there is distinction between applications for quashing under Section 482 and a criminal trial or an appeal against the conviction on a charge under Section
306. This Court cannot transgress the limits of jurisdiction under Section 482 of the Criminal Procedure Code in such glaring facts and circumstances of the present case. This Court cannot decide the matter on the basis of hypothesis and surmises by reaching to the conclusion that the no offence is made out on the basis of bundle of facts available with this Court. This Court cannot test the veracity of the allegation in criminal Page 38 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined complaint/F.I.R. and in the suicide note left behind by the deceased without having the benefit of an evidentiary record, which would be collected during the trial. 8.11 This Court, while considering the present applications under Section 482 of the Criminal Procedure Code, has come to the conclusion that the test is required to be applied whether the allegations in the complaint as they stand, without adding or detracting from the complaint, prima establish the ingredients of the offences alleged and at this stage this Court cannot test the veracity of the allegations nor the matter can be proceeded that the Judge conducting trial in the trial court on the basis of evidence collected during the course of trial. Therefore, after considering the fact that the complainant has given dispute about the transaction with the accused by the deceased and on that basis the F.I.R. is registered and therefore, it is impossible for this Court for a judicial review of the contents of complaint as well as suicide note, at this stage while exercising the powers under Section 482.
8.12 Furthermore, looking to the material available on record, this Court cannot say in any manner that Page 39 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined allegations in F.I.R. are so absurd and are inherently improbable on the basis which no prudent could even reach at just conclusion that there is sufficient ground for proceeding against accused persons. Neither it transpires from the material available on the record that this is a case where the criminal proceeding is initiated is manifestly mala fide and has been instituted with ulterior motive or taking vengeance of the accused persons. On the contrary, the specific allegations in the F.I.R. and in the complaint due reflection in the suicide note establish a prima facie case for abetment of suicide within the meaning of Sections 306 and 107 of the I.P.C. 8.13 Therefore, I am of the opinion that there is no case made out to interfere with the proceeding initiated pursuant to the complaint filed by the complainant by way of impugned FIR being CR No.I-123/2017 registered with Palsana Police Station, Surat by exercising my power under Section 482. Therefore, the present applications are required to be dismissed. 8.14 Before parting with the judgment, the contention raised by the learned senior advocate Mr. Syed regarding the submission about the mental status Page 40 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined of the persons who has committed suicide. In this context, it is not appropriate for this Court to accept such contention and make any observation by diminishing the importance of mental health. The mental health of a person cannot be compressed into "one-size-fits-whole" approach.
8.15 It is also contented by the learned advocate for the applicants that that the persons who is depressed and suffering from mental health, the observation made in the judgment of the Hon'ble Apex Court in the cases of Mahendra K.C. (supra), and more specifically para 32 is more relevant, some of the observation are as under: "32. ...Behavioural scientists have initiated the discourse on the heterogeneity of every individual and have challenged the traditional notion of 'all humans behave alike'. Individual personality differences manifest as a variation in the behavior of people. Therefore, how an individual copes up with a threat- both physical and emotional, expressing (or refraining to express) love, loss, sorrow and happiness, varies greatly in view of the multi-faceted nature of the human mind and emotions. Page 41 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023
NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined Thus, the submission regarding the manner in which a depressed person ought to have behaved deeply diminishes the gravity of mental health issues" 8.16 Therefore, considering the ratio of the judgment of the Hon'ble Apex Court in the abovementioned judgment as per above discussion, I am of the opinion that the present applications filed by the respective applicants are not required to be considered as the same is found meritless to exercise the powers under Section 482 of the Criminal Procedure Code.
9. Accordingly, the present application is dismissed, with no order as to costs. Rule is discharged. Interim relief, if any, granted earlier stands discharged.
10. At this stage, learned senior advocate Mr. Syed prays for continuing the stay, which is already granted in the present case. Since the matters are pending since the year 2017, no fruitful purpose will be served if further interim protection is granted to the present applicants as the matters are heard almost after a period of six years before this Court, let the proceedings Page 42 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023 NEUTRAL CITATION R/CR.MA/25062/2017 JUDGMENT DATED: 09/08/2023 undefined of trial be proceeded further in the interest of justice. Hence, the request (for extension of stay) is denied.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 43 of 43 Downloaded on : Sun Sep 17 00:50:35 IST 2023