Hashmukhbhai Kanjibhai Miyatra vs State Of Gujarat

      R/CR.MA/3951/2023                               ORDER DATED: 23/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 3951 of 2023

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                          HASHMUKHBHAI KANJIBHAI MIYATRA
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR Y J PATEL(3985) for the Applicant(s) No. 1
MR PAWAN BAROT, ADVOCATE for the Respondent(s) No. 2
MRS KRINA CALLA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                                  Date : 23/02/2023

                                   ORAL ORDER

1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants-original accused seek to invoke inherent powers of this Court, for quashing of the FIR being I-C.R.No.11202014230027 of 2023 registered with Dhrol Police Station, Jamnagar for the offences punishable under Sections 306, 386, 504, 506(2) and 114 of the IPC and Sections 5, 33, 40 and 42 of the Gujarat Money Lenders Act, 2011.

2. Facts and circumstances giving rise to file present petition are that the complainant was used to get personal loan from the persons named in the FIR and due to his inability to repay the advance money, he left his village as a result of which, the lender including the accused tried to pressurize the father of the complainant. The deceased - father could not bear the pressure of the accused as a result, he committed Page 1 of 6 Downloaded on : Fri Feb 24 20:52:48 IST 2023 R/CR.MA/3951/2023 ORDER DATED: 23/02/2023 suicide by consuming poisonous substance. The complainant lodged an FIR for the aforesaid offences.

3. The original informant Bakulbhai Ravjibhai Patel, filed an affidavit, which is taken on record. He has categorically stated that the dispute with the applicant has been amicably settled with the intervention of the friends and well-wishers and pursuant to the settlement, he does not wish to prosecute the accused and has no objection if the proceedings are quashed.

4. Learned counsel Mr.Y.J. Patel for the applicants and learned counsel for the informant Mr.Pawan Barot have jointly submitted that:-

(1) The dispute is a private in nature and in view of the compromise between the parties and when same has not been secured through coercion, threat or inducement, no prima facie case is made out against the applicants for the alleged offence and therefore, no useful purpose would be served by continuing the proceedings as there is no possibility of the accused being convicted for the alleged offence and it would be unnecessary harassment and futile attempt, if the prosecution is allowed to continue.

(2) On merits, it is submitted that the allegations leveled in the FIR are accepted on its face value, it does not make out the case for commission of the alleged offence of suicide. Relying on the case of Chitresh Kumar Chopra Vs. State of NCT of Delhi (2009 (16) SCC 605), to Page 2 of 6 Downloaded on : Fri Feb 24 20:52:48 IST 2023 R/CR.MA/3951/2023 ORDER DATED: 23/02/2023 submit that in order to convict a person under Section 306 of IPC, there has to be a clear mens rea to commit an offence and it also requires an active, 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. Merely on allegations of harassment without their being any positive action, proximate to the time of occurrence, on the part of the accused, which led or compel the deceased to commit suicide, the charge in term of Section 306 of the IPC is not sustainable.

(3) There is an absolute no averments in the suicide note, except referring the name of the applicant, there is no reference of any act or incidents, whereby the applicants herein are alleged to have committed any willful act or omission or intentionally aided or instigated the deceased to commit an act of suicide.

(4) The complainant - respondent no.2, at the time of lodging the FIR, did not have produced any record or document to show that the applicants are in business of money lending and had lent money to the deceased. Thus, prima facie no offence is made out so far provisions of Gujarat Money Lenders Act, 2011 is concerned.

5. On the other hand, learned APP has relied upon the judgment of the Apex Court in case of Daxaben Vs. State of Gujarat, AIR 2022 SC 3530, to contend that even settlement has taken place, the court lacked the jurisdiction to quash the Page 3 of 6 Downloaded on : Fri Feb 24 20:52:48 IST 2023 R/CR.MA/3951/2023 ORDER DATED: 23/02/2023 FIR registered under Section 306 of the IPC, as the offence under Section 306 falls in the category of heinous and serious offence and are to be treated as crime against the society and not against individual one. On merits of the case, it is submitted that this is not a stage where minute and meticulous exercise with regard to the appreciation of evidence may be done and fruitfulness of the allegations could only be tested in a trial and therefore, when prima facie case is made out, the application is liable to be dismissed.

6. Having considered the contentions raised by learned counsel for the respective parties, the issue arise is whether the FIR and consequential proceedings are liable to be quashed in exercise of extraordinary and inherent jurisdiction?

7. It is no doubt to true that pursuant to the compromise arrived at between the parties, the original informant - respondent no.2 has no objection if the proceedings are quashed. On perusal of the settlement affidavit, it appears that the settlement is voluntary, without monetary benefit to be given to the complainant. In the case of Daxaben (supra), in Para-50 of the judgment, the Apex Court clearly laid down that offence under Section 306 of the IPC would be fall in the category of heinous and serious offences and are to be treated as crime against the society and FIR under Section 306 cannot be quashed on the basis of financial settlement with the informant, surviving spouse, parents, children, guardians or anyone else. It needs to be noted that the Apex Court has not examined the question whether the FIR discloses offence under Section 306 of the IPC.

R/CR.MA/3951/2023 ORDER DATED: 23/02/2023

8. In light of the observations made by the Apex Court in the case of Daxaben (supra), this Court decides the case on its own merits.

9. The applicants are charged with Section 306 of the IPC. Section 306 provides that whoever abates the commission of suicide, shall be punished with the imprisonment and shall be also liable to be fine. The essential ingredients of offence under Section 306 of the IPC are (i) abatement, (ii) intention of the accused to aid or instigate or abate the deceased to commit suicide. Mere harassment by itself would not constitute the abatement of suicide. There should be evidence capable of suggesting that the accused intended by such act to instigate the deceased to commit suicide. In other words, there must be a prove of direct or indirect act(s) of incitement to the commission of the suicide and therefore, whether a person has abated to commit a suicide or not could only be gathered from the facts and circumstances of each case.

10. In the facts of the present case, more particularly, considering the fact of settlement and chargesheet case papers, prima facie no case is made out against the accused for the alleged offence under Section 306, 386, 504, 506(2) & 114 of IPC and under the provisions of Gujarat Money Lenders Act, 2011.

11. It is no more res-intergra that inherent powers could be exercised by the High Court to give effect to an order under Cr.P.C.; to prevent of abuse of process of Court; and to Page 5 of 6 Downloaded on : Fri Feb 24 20:52:48 IST 2023 R/CR.MA/3951/2023 ORDER DATED: 23/02/2023 otherwise secure ends of justice. Thus, considering the peculiar facts and circumstances of present case, this Court is of the considered opinion that there is minimal chances of witnesses coming forward in support of the prosecution and chances of conviction appears to be remote and/or bleak. In such circumstances, it would be unnecessary harassment and futile attempt if the prosecution is allowed to continue.

12. For the foregoing reasons, this Court is of the considered view that the application deserves to be allowed. Accordingly, following the guidelines in State of Haryana & others Vs. Bhajanlal & others (1992 Suppl. 1 SCC 335), the application is allowed. The FIR being I-

C.R.No.11202014230027 of 2023 registered with Dhrol Police Station, Jamnagar and all other proceedings arising therefrom are quashed qua present applicants herein. Rule is made absolute accordingly.

(ILESH J. VORA,J) TAUSIF SAIYED Page 6 of 6 Downloaded on : Fri Feb 24 20:52:48 IST 2023