Narendra Sarvaiya (Sic. Narendra ... vs State Of Gujarat
2021 Latest Caselaw 5194 Guj

         R/CR.MA/6556/2021                                     ORDER




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION NO. 6556 of 2021

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        NARENDRA SARVAIYA (SIC. NARENDRA MADHUBHA
                      CHUDASAMA)
                          Versus
                    STATE OF GUJARAT
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Appearance:
MR HARSHIT S TOLIA(2708) for the Applicant(s) No. 1
MR PARTH S TOLIA(5617) for the Applicant(s) No. 1
MR.UTPAL R DAVE(6531) for the Applicant(s) No. 1
MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 22/04/2021

                              ORAL ORDER

1. Rule. Ms.Monali Bhatt, learned Additional Public Prosecutor, waives service of notice of rule on behalf of respondent-State.

2. This application has been preferred under section 438 of the Code of Criminal Procedure seeking anticipatory bail in connection with the first information report being I-C.R. No.11198068210262 dated 10.02.2021 registered with Bharatnagar Police Station, Bhavnagar for the offences punishable under sections 306 and 114 of the Indian Penal Code and under Section 40 of the Gujarat Money Lending Act, 2011.

3. It is stated by Mr.Tolia the learned advocate for the applicant that the present applicant has lend Rs.50,000/- to

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the deceased and as per the FIR, the deceased has taken money in the form of loan from nine other persons and false complaint has been filed against the present applicant to avoid re-payment of the money. Mr.Tolia submitted that the averments in the FIR does not disclose any instigation which would fall within the definition of "abetment" of Section 107 of the IPC and does not satisfy the ingredients of Section 306 of the IPC. Relying on the judgment rendered in the case of Unnnuni George v. State of Gujarat in Criminal Misc. Application No.10870 of 2006, Mr.Tolia submitted that in the said case on the similar facts the Court had observed that demand for re-payment of loan amount would not constitute any intention of the accused to instigate the deceased to commit suicide. Mr.Tolia further relied on the judgment rendered in the case of Sanju Alias Sanjay Singh Sengar v. State of M.P., reported in 2002 (5) SCC 371 to submit that the ingredients of abetment are totally absent in the case for offence under Section 306 of the IPC. It was, therefore, prayed that discretion may be granted in favour of the applicant.

4. Ms.Monali Bhatt, the learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. Referring to the facts of the FIR, she submitted that the deceased had consumed poison because of the atrocious demand of exorbitant amount of interest along with the principal amount. She submitted that every month the deceased was paying Rs.60,000/- towards interest and the deceased was constantly under tension. He has disclosed the details of the names of the persons from whom the deceased

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had borrowed money to his daughter and the facts of the case suggest that there was atrocious demand which was in the form of instigation to provoke the applicant to commit suicide. It was, therefore, prayed that no discretion may be exercised in favour of the applicant.

5. Heard the learned advocates for the parties and perused the material on record. Section 107 of the IPC takes into consideration the instigation by any person to do an act, instigate - means to goad or urge forward to provoke, incite, urge or encourage to do an act. Merely the accused goaded deceased to refund/repay the loan amount advanced by them, would not in any manner be considered as an act to instigate, incite or provoking the deceased to commit suicide. The deceased could have lodged a report against the accused, who had allegedly tortured him and threatened him. The FIR blames the accused, they are alleged to have goaded him to refund/repay the amount, but never would have intended that deceased should commit suicide. In fact, as per the allegation, accused wanted the loan advance from them to be repaid, and for that purpose could always had intended the deceased to live. Taking into consideration the fact that the FIR does not show any prima facie case against the present accused applicant. There is no any direct issue of any threat by the applicant. Hence, this Court is inclined to grant anticipatory bail to the applicant.

6. In the case of M. Mohan v. State Represented by the Deputy Superintendent of Police reported in AIR 2011 SC 1238 4, the Apex Court has made the following observations regarding the ingredients of Section 306 IPC,

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referring to the word 'suicide', which reads thus:

"If the provisions for the offence under Section 306 are considered, it is evident that the basic ingredient regarding the intentional instigation are required to be proved or established. The word 'suicide' has not been defined. The word 'suicide' would mean the intentional killing of oneself. As per Concise Oxford Dictionary, 9th Edition, p.686, "A finding of suicide must be on evidence of intention. Every act of self destruction is, in common language described by the word 'suicide' provided it is an intentional act of a party knowing the probable consequence of what he is about. Suicide is never to be presumed. Intention is the essential legal ingredient."

7. In the FIR, about 10 persons have been named from whom the deceased has borrowed money. It has been stated that those persons were often demanding the interest and principal amount. The FIR shows that, there are mere bare allegations, no details have been given against the accused to suggest where and when and how and the manner of demanding the money asking for re-payment of the loan amount or the outstanding amount, to constitute the act of instigation to attract the ingredients of Section 306. Prima facie, no case of abetment for the commission of suicide is made out. Taking into consideration the facts of the case, nature of allegations and the gravity of offence, this Court is inclined to grant anticipatory bail to the applicant.

8. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported in [2011] 1 SCC 694, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs.

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State of Punjab, reported in (1980) 2 SCC 565. This Court has also taken into consideration the recent decision of the Apex Court in the case of Sushila Aggarwal and others Vs. State (NCT of Delhi) and another reported in (2020) 5 SCC 01.

9. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with the first information report being I- C.R. No.11198068210262 dated 10.02.2021 registered with Bharatnagar Police Station, Bhavnagar on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions:

(a) shall cooperate with the investigation and make himself available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 06.05.2021 between 11.00 a.m. and 2.00 p.m.;

(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer;

(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;

     (f)    shall not leave India without the permission of the





          R/CR.MA/6556/2021                               ORDER

concerned trial court and if having passport shall deposit the same before the concerned trial court within a week; and

10. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.

11. At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order. Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.

(GITA GOPI,J)

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