Kiranbhai Himmatlal Gadhavi vs State Of Gujarat

Gujarat High Court

Kiranbhai Himmatlal Gadhavi vs State Of Gujarat on 24 February, 2025

                                                                                                                  NEUTRAL CITATION




                           R/CR.MA/13760/2020                                     JUDGMENT DATED: 24/02/2025

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                             R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                                         FIR/ORDER) NO. 13760 of 2020

                      FOR APPROVAL AND SIGNATURE:

                      HONOURABLE MR. JUSTICE J. C. DOSHI
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                                    Approved for Reporting                    Yes             No
                                                                              √
                      ==========================================================
                                        KIRANBHAI HIMMATLAL GADHAVI
                                                       Versus
                                           STATE OF GUJARAT & ANR.
                      ==========================================================
                      Appearance:
                      MR PIYUSH TRIVEDI FOR MR PRATIK B BAROT(3711) for Applicant(s) No. 1
                      MR. R. K. RAJPUT(6988) for the Applicant(s) No. 1
                      NOTICE SERVED BY DS for the Respondent(s) No. 2
                      MR MEET THAKKAR, ADDL.PUBLIC PROSECUTOR for Respondent(s) No. 1
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                          Date : 24/02/2025
                                                          ORAL JUDGMENT

1. By this application under Section 482 of the Code of Criminal Procedure (for short "the Code"), the applicant seeks quashing of the FIR registered as CR No.11993006201925 of 2020 with 'A' Division Police Station, Gandhidham, Kutch for the offence punishable under Sections 306 and 114 of the Indian Penal Code and under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("the Atrocities Act" for short) read with Section 5, 40, 42(a) of the Gujarat Money Lenders Act and further proceedings arising thereof.

2. The brief facts of the case are as under :

NEUTRAL CITATION R/CR.MA/13760/2020 JUDGMENT DATED: 24/02/2025 undefined 2.1 The deceased who was Sub Labour Contractor had borrowed different set of amount from each of the accused named in the FIR on interest basis, however, he was not in a position to repay the amount. Therefore, the accused persons have applied consistent and pressure upon the deceased to repay the amount with interest. Due to the said pressure, the deceased committed suicide and the first informant filed FIR in question against the petitioner and other acused persons. Hence, this petition.

3. Heard learned Advocates appearing for the respective parties.

4. In FIR where offence punishable under Sections 306 and 114 of the Indian Penal Code read with under Section 3(2)(v) of the Atrocities Act read with Section 5, 40, 42(a) of the Gujarat Money Lenders Act, learned advocate Mr.Piyush Trivedi for the petitioner submits that FIR and pursuant to investigation, chargesheet papers filed against the present petitioner does not disclose a single allegation of abetment of things essential under Section 107 of IPC. He would further submit that even the essential ingredients for the offence under Atrocities Act are also missing. It is hard to prove that the petitioner has lent money and committed offence under Sections 5, 40, 42(a) of the Gujarat Money Lenders Act. Learned advocate Mr.Trivedi takes this Court through FIR as well as chargesheet papers and submitted that name of the petitioner appears cursorily in FIR as well as in the suicide note whereby it is stated that petitioner has lent Rs.8,50,000/- to the deceased and was charging exorbitant 10% interest from the deceased. He would submit that even if this Page 2 of 13 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:18:33 IST 2025 NEUTRAL CITATION R/CR.MA/13760/2020 JUDGMENT DATED: 24/02/2025 undefined allegation or contention is taken as correct on its face value, it does not discloses the offence punishable under Section 107 or 306 of IPC.

4.1 Learned advocate Mr.Trivedi further referred that there is no averment on the record which indicates that at the hand of the petitioner, the deceased was dispossessed from the immovable property knowing fully well that deceased was a member of Scheduled Caste or Scheduled Tribe. He would further submit that even FIR misses the necessary ingredients that deceased was member of Scheduled Caste or Scheduled Tribe. In these circumstances, he submits that allowing the FIR and chargesheet to trial is abuse of process of law. Learned advocate Mr.Trivedi refers to the judgment of Hon'ble Apex Court in case of Mohit Singhal and another vs. State of Uttarakhand

- 2024 (1) SCC 417. He also refers to the judgment of Hon'ble Apex Court in case of Madan Mohan Singh vs. State of Gujarat

- 2010 (8) SCC 628 and the judgment of this Court in case of Yogeshkumar Radheshyam Shah and another vs. State of Gujarat and another, being Criminal Misc. Application No.13751 of 2015, to submit that in absence of necessary ingredients of abetment of suicide, the petitioner cannot be allowed to trial. Upon above submissions, learned advocate Mr.Trivedi submits to allow this petition and to quash the questioned FIR and consequent investigation.

5. Per contra, learned APP appearing for the respondent -

State having referred to the judgment in case of M. Jayanthi vs. K.R.Meenakshi - 2019 JX (SC) 1392, would submit that while exercising the inherent jurisdiction under Section 482 of Cr.P.C., Page 3 of 13 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:18:33 IST 2025 NEUTRAL CITATION R/CR.MA/13760/2020 JUDGMENT DATED: 24/02/2025 undefined the Court should restrain itself by not embarking upon an inquiry to see whether allegations are likely to be established or not. He would further submit that necessary ingredients are available for prosecuting the present petitioner. He would submit that in such circumstances since chargesheet is already filed, it is better to be left to learned Trial Court for deciding the allegations while conducting the trial. Mainly upon above submissions, learned APP submits to dismiss the petition.

6. What could be noticed after hearing learned advocates for both sides that in the present matter, deceased has committed suicide by hanging himself on the tree. Prior to which he himself has shot video. After the incident, his son has handed over the clips which are shot in the video to the I.O. and same has been taken by I.O. as part of the investigation by drawing the panchnama at page-74. According to panchnama at page-72 as many as four video clips were handed over to I.O. A script of the video clips is stated in the panchnama. In none of the video clips, name of the present petitioner was spelt. Perusing of FIR as well as suicide note, the name of the petitioner is appearing cursorily in one line that the petitioner has advanced Rs.8,50,000/- to the deceased at the exorbitant interest of 10% and these allegations are levelled against the petitioner along with as many as nine other accused who have also lent money to the deceased as per the prosecution case with exorbitant interest. In suicide note, the deceased stated that the person who had lent money or person from whom he has borrowed money were repeatedly demanding their money with exorbitant interest. The deceased was fade up because of such demands and therefore, he committed suicide.

NEUTRAL CITATION R/CR.MA/13760/2020 JUDGMENT DATED: 24/02/2025 undefined

7. At this juncture, I may refer to Section 107 of IPC as under:

"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."

8. In order to prove offence under Section 306 of IPC, prosecution was required to establish the necessary ingredients of Section 107 of IPC which establishes abetment of things. If a person instigate a person to do anything, one or more than one person conspire for doing particular thing to any person and if any act or illegal omission takes place pursuant to such conspiracy and thirdly, intentionally aid a person by an act or illegal omission for doing that thing, then it can be said that person has abetted of things. In order to establish offence under Section 306, the prosecution needs to prove instigation or goading, intentionally aiding person to do any act or illegal omission and also such act should be within the proximate of committing suicide.

9. In Mohit Singhal and another (supra), the Hon'ble Supreme Court observed as under :

"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 Page 5 of 13 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:18:33 IST 2025 NEUTRAL CITATION R/CR.MA/13760/2020 JUDGMENT DATED: 24/02/2025 undefined 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 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, Page 6 of 13 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:18:33 IST 2025 NEUTRAL CITATION R/CR.MA/13760/2020 JUDGMENT DATED: 24/02/2025 undefined 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."

10. The fact in the judgment of Mohit Singhal (supra) is quite similar to the facts of the present case. It is quite impossible to conclude that because the appellant has asked and demanded back money borrowed by the deceased has instigated the deceased to commit the suicide.

11. With profit, I may refer to the judgment of Madan Mohan Singh (supra), wherein the Hon'ble Apex Court has observed as under :

"8. It is on this that Shri Tulsi contended that all this is absolutely absurd. If a person writes a suicide note on 4.2.2008, he had no business to send the suicide note to High Court and keep a copy thereof in the house. Learned Senior Counsel said that even if all this is accepted as it is, there is nothing to suggest that the appellant has committed any offence or that any offence could be spelt out from the said suicide note or the FIR much less offence under Sections 306 and 294, IPC. We are convinced that there is absolutely nothing in this Page 7 of 13 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:18:33 IST 2025 NEUTRAL CITATION R/CR.MA/13760/2020 JUDGMENT DATED: 24/02/2025 undefined suicide note or the FIR which would even distantly be viewed as an offence much less under Section 306, IPC. We could not find anything in the FIR or in the so-called suicide note which could be suggested as abetment to commit suicide. In such matters there must be an allegation that the accused had instigated the deceased to commit suicide or secondly, had engaged with some other person in a conspiracy and lastly, that the accused had in any way aided any act or illegal omission to bring about the suicide. In spite of our best efforts and microscopic examination of the suicide note and the FIR, all that we find is that the suicide note is a rhetoric document in the nature of a departmental complaint. It also suggests some mental imbalance on the part of the deceased which he himself describes as depression. In the so-called suicide note, it cannot be said that the accused ever intended that the driver under him should commit suicide or should end his life and did anything in that behalf. Even if it is accepted that the accused changed the duty of the driver or that the accused asked him not to take the keys of the car and to keep the keys of the car in the office itself, it does not mean that the accused intended or knew that the driver should commit suicide because of this. In order to bring out an offence under Section 306, IPC specific abetment as contemplated by Section 107, IPC on the part of the accused with an intention to bring out the suicide of the concerned person as a result of that abetment is required. The intention of the accused to aid or to instigate or to abet the deceased to commit suicide is a must for this particular offence under Section 306, IPC. We are of the clear opinion that there is no question of there being any material for offence under Section 306, IPC either in the FIR or in the so-called suicide note.

9. It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and, therefore, abet the offence. In fact, there is no nexus between the so called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306, IPC, much more material is required. The Courts have to be extremely careful as the main person is not available for cross- examination by the appellant/accused. Unless, therefore, there is specific allegation and material of Page 8 of 13 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:18:33 IST 2025 NEUTRAL CITATION R/CR.MA/13760/2020 JUDGMENT DATED: 24/02/2025 undefined definite nature (not imaginary or inferential one), it would be hazardous to ask the appellant/accused to face the trial. A criminal trial is not exactly a pleasant experience. The person like the appellant in present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature. In the similar circumstances, as reported in Netai Dutta Vs. State of W.B. [2005 (2) SCC 659], this Court had quashed the proceedings initiated against the accused.

10. As regards the suicide note, which is a document of about 15 pages, all that we can say is that it is an anguish expressed by the driver who felt that his boss (the accused) had wronged him. The suicide note and the FIR do not impress us at all. They cannot be depicted as expressing anything intentional on the part of the accused that the deceased might commit suicide. If the prosecutions are allowed to continue on such basis, it will be difficult for every superior officer even to work.

11. It was tried to be contended by the learned counsel appearing on behalf of the complainant that at this stage, we should not go into the merits of the FIR or the said suicide note. It is trite law now that where there is some material alleged in the FIR, then such FIR and the ensuing proceedings should not be quashed under Section 482 Cr.P.C. It is for this reason that we very closely examined the FIR to see whether it amounts to a proper complaint for the offence under Sections 306 and 294(b) IPC. Insofar as Section 294(b) IPC is concerned, we could not find a single word in the FIR or even in the so-called suicide note. Insofar as Section 306 IPC is concerned, even at the cost of repetition, we may say that merely because a person had a grudge against his superior officer and committed suicide on account of that grudge, even honestly feeling that he was wronged, it would still not be a proper allegation for basing the charge under Section 306 IPC. It will still fall short of a proper allegation. It would have to be objectively seen whether the allegations made could reasonably be viewed as proper allegations against the appellant/accused to the effect that he had intended or engineered the suicide of the concerned person by his acts, words etc. When we put the present FIR on this test, it falls short. We have already explained that the Page 9 of 13 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:18:33 IST 2025 NEUTRAL CITATION R/CR.MA/13760/2020 JUDGMENT DATED: 24/02/2025 undefined baseless and irrelevant allegations could not be used as a basis for prosecution for a serious offence under Section 306 IPC. Similarly, we have already considered Section 294 (b) IPC also. We have not been able to find anything. Under such circumstances, where the FIR itself does not have any material or is not capable of being viewed as having material for offence under Sections 306 and 294(b) IPC, as per the law laid down by this Court in State of Haryana & Ors. Vs. Bhajan Lal & Ors. [1992 Suppl. 1 SCC 335], it would be only proper to quash the FIR and the further proceedings."

12. In Yogeshkumar Radheshyam Shah and another (supra), the coordinate Bench surveyed the slew of binding precedents and held as under :

"32. In the case in hand, in my opinion, there is absolutely no element of any intentional aiding or instigation. Indisputably, the deceased had borrowed a sum of Rs.6000/- from the applicants. Indisputably, he had failed to repay the amount. In such circumstances, if the applicants herein demanded the money and are alleged to have threatened the deceased by saying that they would initiate legal proceedings and take away his motorcycle will not bring the case withing the meaning of Section 107 of the IPC."

13. In view of above, it is hard to believe that the demand of the money lent by the petitioner to the deceased would constitute instigation or goading or intentional aid to commit suicide. Demand of such money by no assertion initiate legal proceedings and satisfy the necessary ingredients of Section 107 of IPC.

14. Upon similar facts, offence under Section 3(2)(v) of the Atrocities Act is also levelled against the petitioner. I refer to Section 3(2)(v) of the Act read as under :

NEUTRAL CITATION R/CR.MA/13760/2020 JUDGMENT DATED: 24/02/2025 undefined "3. Punishments for offences atrocities.--

(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property 1 [knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine;"

15. Wrongfully dispossession of a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferece with the enjoyment of his rights, over any land or premises or water attracts the offence punishable under Section 3(2)(v) of the Atrocities Act.

16. Plain reading of the FIR does not disclose that the petitioner having knowledge that the deceased was member of Scheduled Caste and Schedule Tribe and knowing fully well the petitioner has dispossessed him from any land belonging to him or any right over land or water. In fact, learned APP failed to justify invocation of offence under Section 3(2)(v) of the Atrocities Act in the present matter. Only because the deceased was found to be member of Scheduled Caste or Scheduled Tribe, offence cannot be registered under the said Act.

17. In view of above and for the aforesaid reasons, according to this Court, since the petitioner has failed to point out any essential ingredient of offence punishable under Section 107 of IPC or essential ingredient to establish offence under Section Page 11 of 13 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:18:33 IST 2025 NEUTRAL CITATION R/CR.MA/13760/2020 JUDGMENT DATED: 24/02/2025 undefined 306 of IPC and essential words to constitute offence under the Atrocities Act, the petition deserves consideration.

18. 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:-

"(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.

NEUTRAL CITATION R/CR.MA/13760/2020 JUDGMENT DATED: 24/02/2025 undefined (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 spite him due to private and personal grudge."

19. The FIR accepted in its entirety as correct do not prima facie constitute any offence or make out any case against the present petitioner. The allegations made in the F.I.R. 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 and the evidence collected in support of the FIR do not disclose the commission of any offence and make out the case against the accused.

20. Resultantly, while applying finding of Hon'ble Supreme Court at Sr. No.1, 3, 5 and 7 of Bhajan Lal's case, by allowing the present petition, the FIR registered as C.R. No.11993006201925 of 2020 with 'A' Division Police Station, Gandhidham, Kutch for the offence punishable under Sections 306 and 114 of the Indian Penal Code and under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 5, 40, 42(a) of the Gujarat Money Lenders Act and further proceedings arising out of the said FIR is hereby quashed qua the petitioner. Rule is made absolute. Direct service is permitted.

(J. C. DOSHI, J) GAURAV J THAKER Page 13 of 13 Uploaded by GAURAV J THAKER(HC00951) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 23:18:33 IST 2025