Keyur Nitinbhai Somaiya vs State Of Gujarat

Gujarat High Court

Keyur Nitinbhai Somaiya vs State Of Gujarat on 3 April, 2025

                                                                                                                NEUTRAL CITATION




                            R/CR.MA/31021/2017                                   JUDGMENT DATED: 03/04/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                              R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                                            FIR/ORDER) NO. 31021 of 2017


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MR. JUSTICE J. C. DOSHI

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                                     Approved for Reporting                    Yes           No

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                                                      KEYUR NITINBHAI SOMAIYA
                                                               Versus
                                                      STATE OF GUJARAT & ANR.
                       ==========================================================
                       Appearance:
                       MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
                       MR DIPEN K DAVE(3296) for the Respondent(s) No. 2
                       MR SOHAM JOSHI, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
                       No. 1
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                          CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                           Date : 03/04/2025

                                                           ORAL JUDGMENT

1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioners have prayed for quashing and setting aside FIR being C.R.No.I - 212 of 2017 registered with Rajkot B Division Police Station, for the offences punishable under Section 306 of the IPC as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioner herein.

NEUTRAL CITATION R/CR.MA/31021/2017 JUDGMENT DATED: 03/04/2025 undefined

2. Brief facts of the case are as under:-

3. That on 30.9.2017 her son Divyesh alongwith his friend who are studying together in the school at about 3 O'clock in the afternoon playing with camera which was rented by them. It is stated that at about 6 O'clock a phone call was received and the person to whom camera belongs he has asked to return the same and asked to keep with the adjoining shop owner. It is stated that after 3 days one Nirav who resides in Arjun Society along with his friend Keyur both came and informed that the camera which was taken by son of the complainant some damage was made and it was asked to deposit expenses of the same. It is stated that after 3/4 days Divyesh has informed that one Nirav used to call him frequently that there is no damage in the camera, in spite of the same Rs.6,000/- is asked and the son Divyesh was pressurized to pay the amount. It is stated that mother has thereafter informed the son that since camera was taken on rent by all friends together the amount would be equally distributed and to pay the amount. It is stated that at about 4 O'clock again a phone call of Nirav came and Nirav was asked to come in the evening again he has requested to pay the amount of expenses of camera and if payment is not made threat was given. It is submitted that son of the complainant thereafter left and that on his phone ring was made; however nobody has lifted but subsequently the complainant came to know that Divyesh has committed suicide.

4. Learned advocate Mr Dagli, for the petitioner referring to the FIR in question would submit that the minor dispute has entailed in major result of suicide by the deceased. He would Page 2 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:54:45 IST 2025 NEUTRAL CITATION R/CR.MA/31021/2017 JUDGMENT DATED: 03/04/2025 undefined further submit that according to the FIR, Juvenile accused has given camera to the deceased and the petitioner accompanied the juvenile accused. He would further submit that according to the FIR, the functioning of the camera was disturbed subsequent to the use by the deceased and therefore, according to the FIR, the deceased was pressurized to pay the amount of repairing the camera, which resulted into committal of suicide. He would further submit that essential ingredients of offence under section 306 of the IPC are completely missing in the present case. He would for the submit that there is no instigation, which lead the deceased to commit suicide. He would further submit that the facts stated in the FIR are so hazy which does not constitute demand of ₹6000/- from the deceased for repairing the camera6000/- from the deceased for repairing the camera and therefore, there is no act on the part of the petitioner which could lead the deceased to commit suicide. He would further submit that the FIR is also filed belatedly, after 15 days of the incident which indicates that the FIR is filed after due deliberation and consultation and designed to implicate the accused for the offence under section 306 of the IPC.

5. To buttress his submission, learned advocate Mr. Dagli has relied upon the decision of the Hon'ble Apex Court in case of GM Reddy Vs. State of Andhra Pradesh, 2010 SCW 337 and in case of AK Chaudhary Vs. the State of Gujarat, 2005(3) GLH 444.

6. The above submission is made by learned advocate Mr Dagli to allow the petition.

7. Per contra, learned advocate Mr. Dave appearing for the complainant would submit that since the petitioner has Page 3 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:54:45 IST 2025 NEUTRAL CITATION R/CR.MA/31021/2017 JUDGMENT DATED: 03/04/2025 undefined approached this court under section 482 of the Code of Criminal Procedure, 1973 to quash the FIR at threshold, in absence of the investigation in regards to the office, it cannot be said that there is no instigation which prompted the deceased to commit suicide. He would further submit that the police has not formed any opinion whether the offence under section 306 of the IPC is made out or not. Upon such submission, he request to dismiss the petition.

8. Learned APP, adopting the argument of learned advocate Mr Dave, requests to pass necessary order.

9. What could be notice that two juvenile and one major person involved in the incident. The deceased and the accused No.1 are friends. The camera belongs to the accused No.1 was given to the deceased on his request. According to the FIR, the camera was damaged and for repairing of the camera, the petitioner was demanding ₹6000/- from the deceased for repairing the camera6000/- from the deceased, which pushed the deceased to commit suicide.

10. The main factor for abetment of thing is that the prosecution needed to prove to instigates any person to do particular thing, omission or illegal omission for doing that thing. In the present case, this Court does not find any essential ingredients of section 107 of the IPC, which can even prima facie be proved on reading the FIR.

11. Be that as it may, since principal offence alleged against the petitioners is u/s 306 of the IPC, let refer sections 107 and 306 of the IPC.

NEUTRAL CITATION R/CR.MA/31021/2017 JUDGMENT DATED: 03/04/2025 undefined "SECTION 107 : Abetment of a thing BNS, 2023 (New Section): 45 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 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 there by 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.

SECTION 306 : Abetment of suicide BNS, 2023 (New Section): 108 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."

NEUTRAL CITATION R/CR.MA/31021/2017 JUDGMENT DATED: 03/04/2025 undefined

12. At this juncture, I may refer to decision in case of Mohit Singhal & Anr. vs. The State of Uttarakhand & Ors., rendered in Criminal Appeal No.3578 of 2023 by the Hon'ble Apex Court in regards to allegation of committal of suicide for demanding money and for the offence under Section 306 of the IPC following view is taken by the Hon'ble Apex Court. Paragraph 7 to 10 reads thus:

"7. The suicide note records that the third respondent had borrowed a sum of Rs.60,000/-. According to the deceased, he had paid more than half of the amount to Sandeep. The suicide note records that as he could not pay the rest of the money, the first appellant came to his house and started abusing him. He stated that the first appellant had assaulted him, and therefore, he complained to the police. He further noted that the business of giving money on interest was prospering. He stated that the third respondent is not a prudent woman, and due to her habit of intoxication and due to her conduct, she got trapped in this. In the suicide note, it is further stated that the first appellant has made his life a hell

8. According to the complaint of the third respondent, the incident in her shop of the first appellant threatening and assaulting her and her husband was on 15th June 2017. After that, notice under Section 138 of the Negotiable Instruments Act, 1881, was issued by Sandeep to the deceased on 27th June 2017. The suicide note was written three days after that, on 30th June 2017. The deceased committed suicide three days thereafter. Neither in the complaint of the third respondent nor in the suicide note, it is alleged that after 15th June 2017, the appellants or Sandeep either met or spoke to the third respondent and her deceased husband. Section 306 of the IPC makes abetment to commit suicide as an offence. Section 107 of the IPC, which defines the abetment of a thing, reads thus:

"Section 107 -- Abetment of a thing.- A person Page 6 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:54:45 IST 2025 NEUTRAL CITATION R/CR.MA/31021/2017 JUDGMENT DATED: 03/04/2025 undefined 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 instigate the doing of that thing."

(underline supplied)

9. In the facts of the case, secondly and thirdly in Section 107, will have no application. Hence, the question is whether the appellants instigated the deceased to commit suicide. To attract the first clause, there must be instigation in some form on the part of the accused to cause the deceased to commit suicide. Hence, the accused must have mens rea to instigate the deceased to commit suicide. The act of instigation must be of such intensity that it is intended to push the deceased to such a position under which he or she has no choice but to commit suicide. Such instigation must be in close proximity to the act of committing suicide.

10. In the present case, taking the complaint of the third respondent and the contents of the suicide note as correct, it is impossible to conclude that the appellants instigated the deceased to commit suicide by demanding the payment of the amount borrowed by the third respondent from her husband by using abusive language and by assaulting him by a belt for that purpose. The said incident allegedly happened more than two weeks before the date of suicide. There is no allegation that any act was done by the appellants in the close proximity to the date of suicide. By no stretch of the imagination, the alleged acts of the appellants can amount to instigation to commit suicide. The deceased has blamed the third respondent for landing in trouble due to her bad habits."

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13. In AK Chaudhary (supra), this Court in para 16 and 17 held as under:-

16. The Division Bench of this Court in the case of State of Guj. V/s. Sunilkumar Kanaiyalal Jani, reported in 1996(2) GLR, 797, after taking into consideration the decision of the Apex Court in the case of Chanchal Kumari V/s. Union Territory, Chandigarh, reported in AIR 1986 SC, 752, and after abstracting the relevant observations of the Apex Court in case of Sharad Birdhichand Sarda v. State of Maharashtra, reported in 1984(4) SCC, 116 regarding the psychological aspects of the suicide, further observed at para 8 in the said decision, inter alia, as under:

["8. If the evidence is viewed keeping such law in mind, we do not see any person to accept the contention advanced on behalf of the State and upset the finding of the lower Court. Simply someone comes before the Court and says that both the spouses were often quarrelling is not sufficient because that would not clearly establish the knowledge or intention relation to the crime and proximate assistance. There may be difference of opinions. If on one or another issue the spouses are often quarrelling it is the usual wear and tear of the married life, and certainly that would not lead any one to end his/her life. One would bring end of his/her life if he/she is put to the compelling or alarming circumstances with no opinion. The prosecution has, therefore, to show what was the apple of discord so as to determine about abetment. The case in general terms is not sufficient. (Emphasis supplied.) Here in this case, it is not made clear as to what was the subject of quarrels on the day of the incident, what was the issue, who initiated the quarrel, in what context both were quarrelling , and who was at fault for the quarrel. With regard to the past quarrels also it is ambiguously and in general terms alleged and stated that both were often quarreling, but it is not made clear in what Page 8 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:54:45 IST 2025 NEUTRAL CITATION R/CR.MA/31021/2017 JUDGMENT DATED: 03/04/2025 undefined context, and who was at fault- The party at fault if ultimately facing frustration of his/her plan goes to the extreme, i.e. Suicide the opposite party cannot be blamed and held liable. In different words, if extremity is one's own creation, and the opponent is blamed, it would amount to roguery supplants justice. (Emphasis supplied.) Nothing can be inferred or assumed for or against the party or the Court cannot jump to the conclusion that husband is always at fault, and wife is the victim of the wickedness of the husband. As made clear by the Calcutta High Court in the case of Niharbala Banerjee (supra), there is also no evidence about the knowledge and intention relating to the crime and proximate assistance. It is pertinent to note that the Calcutta High Court has held to which we agree that merely on the fact that the husband was not treating the Wife properly and was treating her with cruelty will not be sufficient to establish the abetment. (Emphasis supplied) In this case, even if on the basis of the evidence of the abovereferred witnesses it is assumed that respondent was often quarrelling with the deceased, that will not amount to abetment for committing suicide; it might be owing to abovequoted psychological factors and symptoms taking shape independent of abetment. (Emphasis supplied.)"]

17. In view of the above, it appears that the ingredients for abetment for suicide would be satisfied only if the suicide is committed by the deceased due to direct and alarming encouragement/incitement by the accused leaving no option but to commit suicide. Further, as the action Of committing suicide is "also on account of great disturbance to the psychological imbalance of the deceased such incitement can be divided into two broad categories, one normally where the deceased is having sentimental tie or physical relations with the accused and second category would be where the deceased is having relations with the accused in official capacity. In case of former category sometimes a normal quarrel or the utterance of hot exchange Of words may result into psychological immediate imbalance. Consequently Page 9 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:54:45 IST 2025 NEUTRAL CITATION R/CR.MA/31021/2017 JUDGMENT DATED: 03/04/2025 undefined creating situation of depression, loss of charm in the life and if the person is unable to control sentiments of expectations, it may give temptations to the person to commit suicide, e.g., when there is relation of husband and wife, mother and son, brother and sister, sister and sister and other relations of such type, where sentimental tie is by blood or due to physical relations.

In case of second category the tie is on account of official relations, where the expectations would to discharge the obligation as provided for such duty in law and to receive the considerations as provided in law. In normal circumstances, relationships by sentimental tie cannot be equated with the official relationship and the reason being the different conduct of the parties for maintenance of the relations. The former-category leaves more expectations, whereas in the latter category, by and large, expectations and obligations are prescribed by law, rules and regulations. Of course, for meeting with the requirement for ingredients of abetment to suicide, the provisions of the IPC are the same, but for the purpose of examination on the aspects of abetment to commit suicide or incitement/encouragement to suicide, it may have some relevance. Since, in the present case this Court is not concerned with the matter of matter of abetment to suicide where the deceased or the accused had the relations covered in the first category, no further discussion may be required in this regard to that extent. However, in case where the allegations for abetment of suicide committed by the deceased falling in second category are concerned, the strict interpretation is called for, otherwise it may result into damaging the discipline of any institution or organization or department, which may consequently result into creating a situation against national interest for which the expectation would be the strict discipline and the rule of law only and nothing else."

14. In GM Reddy (supra), the Hon'ble Apex Court held as under:-

NEUTRAL CITATION R/CR.MA/31021/2017 JUDGMENT DATED: 03/04/2025 undefined Paragraph-7 defined - the word suicide in itself is nowhere in Indian Penal code. However its meaning and importance is well-known and requires no explanation. To sue means as "self" and "cide" killing. Thus implied to an act of self killing. In short person commit suicide must commit it by himself irrespective of the means employed by him in achieving his object or killing himself.

Paragraph 8 suicide by itself is not an offence under either English or Indian Criminal Law though at one time it was in England is in England the former law was of the nature of being deterrent to believe as it provided penalties of two types

(i) degradation of corpse of the deceased by burying it on the highway with a stake through its chest

(ii) forfeiture of the property of the deceased by State.

The Hon'ble Apex Court has also considered the ingredient of offence under Sec. 107 and thereafter has considered the various pronouncements of the apex court and held that human sensitivity of each individual differs from one to other and different people behaves differently in the same situation. The Hon'ble Apex court has also considered in paragraph-20.

Paragraph-20 Abetment involves mentally frequent instigating a person or intentional aiding of a person in doing of thing. That a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.

Paragraph-21 The intention of the legislature and the ratio of the case decided by this Hon'ble Court is clear that in order to convict a person under sec.306 of IPC there has to be effect mentally to commit offence. It also requires an active or direct act which lead the deceased to commit suicide seeing no option. No application of this act must have been intended to or the deceased into such a Page 11 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:54:45 IST 2025 NEUTRAL CITATION R/CR.MA/31021/2017 JUDGMENT DATED: 03/04/2025 undefined position that he committed suicide."

15. Fruitful reference can also be made to the judgment of the Hon'ble Apex Court in case of Kumar @ Shiva Kumar Versus State Of Karnataka, 2024 (0) AIR(SC) 1283, after reviewing series of judgments on the subject matter while summing up, concluded thus:-

"47. Human mind is an enigma. It is well neigh impossible to unravel the mystery of the human mind. There can be myriad reasons for a man or a woman to commit or attempt to commit suicide: it may be a case of failure to achieve academic excellence, oppressive environment in college or hostel, particularly for students belonging to the marginalized sections, joblessness, financial difficulties, disappointment in love or marriage, acute or chronic ailments, depression, so on and so forth. Therefore, it may not always be the case that someone has to abet commission of suicide. Circumstances surrounding the deceased in which he finds himself are relevant."

16. On going through the FIR, learned advocate for the first informant as well as learned APP failed to establish single positive act on the pact of the petitioner to instigate the deceased which prompted the deceased to commit suicide. It is a simple case where camera was damaged and amount for repairing was asked, which cannot be considered as instigation for commitment of the suicide. There are various alternative left to the deceased for such a fact situation.

17. In the case of State of Haryana Vs. B.Bhajanlal & ors., AIR 1992 SC 604, the Hon'ble Apex Court summed up the proposition of law, which reads as under:-

NEUTRAL CITATION R/CR.MA/31021/2017 JUDGMENT DATED: 03/04/2025 undefined "(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations ins the F.I.R. and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the code.

(3) Where, the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same donot disclose the commission of any offence and make out the case against the accused.

(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-

cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2) of the Code.

(5) Whether, the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where, there is an express legal bare engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) toi the institution and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to Page 13 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:54:45 IST 2025 NEUTRAL CITATION R/CR.MA/31021/2017 JUDGMENT DATED: 03/04/2025 undefined spite him due to private and personal grudge."

17.1 The findings of the Hon'ble Apex Court in para 1,3 and 5 are attracted in the present case. In view of above, present petition deserves consideration.

18. This Court is quite conscious that power u/s 482 of the Code of Criminal Procedure, 1973 is extraordinary power and should be used sparingly, as the exercise of such power would scuttle the FIR at the threshold. But, if the FIR fails to make out essential ingredients of the offence, power should be exercised. Upshot of the above discussion, present petition deserves consideration.

19. In the result, present petition is allowed. Impugned FIR being C.R.No.I - 212 of 2017 registered with Rajkot B Division Police Station as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioners herein are hereby quashed and set aside. Rule made absolute to the aforesaid extent. Direct service is permitted.

(J. C. DOSHI,J) SHEKHAR P. BARVE Page 14 of 14 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:54:45 IST 2025