Gujarat High Court
Laxmansinh Pratapsinh Bodana vs State Of Gujarat on 28 April, 2021
Bench: A.S. Supehia
R/CR.MA/3469/2021 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 3469 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any NO
order made thereunder ?
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LAXMANSINH PRATAPSINH BODANA
Versus
STATE OF GUJARAT
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Appearance:
MR J M PANCHAL WITH MR VIRAT G POPAT, ADVOCATES (3710) for the
Applicant(s) No. 1
MEET R MODI(8744) for the Respondent(s) No. 1
MR. BHADRISH S RAJU(6676) for the Respondent(s) No. 1
MR J K SHAH, APP (2) for the Respondent(s) No.1
===========================================================
CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 28/04/2021
ORAL JUDGMENT
1. Heard the learned advocates for the respective
parties through video conferencing.
2. The present application is filed under Section
439 of the Code of Criminal Procedure, 1973 (the
Cr.P.C.) in connection with an F.I.R. being C.R.
No.A/11214032201643 of 2020 registered with Mandvi
Police Station, Dist.Surat for the offences
punishable under Sections 306, 506(2), 386, 270,
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271, 201, 120(B) and 114 of the Indian Penal Code,
1860 (the IPC).
3. The facts emerging from the F.I.R. are
referred as under:
3.1 The first informant is the son of the victim/
deceased and engaged in the business of road
construction and stone quarry, which is situated in
Khanjroli Gam in Mandvi Taluka and is in the name
of first informant's father since 1982. As per the
prosecution case, on 07.09.2020, at around 04:30
a.m. in the morning, the first informant got a call
from his brother informing that the Manager i.e.
Sandeepbhai has informed that his father was not
found and, therefore, the first informant went to
the quarry in his car and reached there by 05:45
a.m. and his brother also reached. Thereafter, the
first informant on searching the quarry along with
the Manager and other friends, a torch, slippers
and mobile of the father were found. While
searching for the father of the first informant,
the Manager had informed him that at 03:45 a.m. in
the morning, the father of the first informant had
called the Manager and told him that when the first
informant comes to the office, he will give him the
note which is kept in the diary of his father.
Therefore, the first informant asked that if the
Manager had read the note to which, he denied and
handed over the note to the first informant, which
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was written by the father of the first informant.
It was written in the note that, father of the
first informant had a property of 10,218 sq. mtrs.
in Adajan, Surat which was sold to accused no.6
viz. Kishorbhai Bhurabhai on 17.03.2015, based on
an agreement to sell on a note at Rs.24,03,88,687/
and accused nos.6 and 5 i.e. Kishorbhai Bhurabhai
and Kanaiyalal Narola had paid worth
Rs.18,00,00,000/ in cash to the father of the
first informant on different dates and
Rs.3,09,30,584/ by cheques of different banks.
Accused no.6 was the owner of Star Group and on
17.08.2016, an income tax raid was made on his
premises and based on the note of agreement to
sell, there was a tax inquiry on the first
informant as well. As a result of the tax inquiry,
all the truth was told by the father of the first
informant, however, accused no.6 had hidden names
of his partners, and therefore, the liability of
paying tax of Rs.8,49,49,020/ was on the head of
the father of the first informant and further, due
to sale deed on the original value, there was
additional capital gain tax of Rs.4,80,00,000/ to
be paid by the father of the first informant and
there was total liability of Rs.13,00,00,000/
incurred on the father of the first informant.
3.2 The father of the first informant had talked
to accused no.6, whereby he had assured to pay the
same. Thereafter, on 30.01.2019, accused no.6 had
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sent a legal notice against the promise and
statement given in the income tax, to which the
father of the first informant had replied through
his advocate on 04.02.2019. Thereafter, on
02.01.2020, at around 78 p.m., the police officers
came to the house of the first informant and asked
the father to come to the Police Station as Police
Inspector (i.e. applicantaccused) had called him
immediately to which the father of the first
informant denied as it was late and his time to
have dinner and told that he will come tomorrow.
However, the police officials forced him to come
and, therefore, the first informant along with his
father went to the Police Station where, in the
office of the Police Inspector, there were two
persons viz. Rajubhai Lakhabhai Bharwad and Hetal
Natvarlal Desai (i.e. accused nos.2 and 3), who
started abusing the father of the first informant
and by then accused no.4 viz. Bhavesh Savani came
and forced him to give a notarized document
immediately in relevance to the disputed land and
took them to a notary viz. Hitesh Kanji Solanki at
11:00 p.m. at night, and thereby, threatened them
to sign the said documents. The first informant was
forced to be the witness therein.
3.3 Thereafter, on 03.01.2020, they had made a
notarized document of declaration before the Notary
viz. Bharat R. Chauhan. However, due to fear, it
was not produced anywhere and the partner of
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accused no.6 i.e. accused no.5 had told the father
of the first informant that if the said land is
transferred in the name of accused no.2 or any
person, he has no objection and had given a written
notarized document to that extent. Thereafter,
accused no.2 had asked for the same in the end of
January, at that time, the first informant had
asked for a detailed document in those regards
which was denied and told that only plain document
will be given. Thereafter, on 04.02.2020, 45,
police officers had come to the house to call the
father of the first informant, but the mother had
denied as the father was not well and was asleep.
3.4 The brother of the first informant had sent an
application to the Superintendent of Police,
against the same through WhatsApp after which the
police officers had returned back. Thereafter, on
18.02.2020, accused nos.2, 3, 8 and accused no.7
had come at his house of the first informant with
ready document of satakhat along with possession
and showed the signature and videography of the
father of the first informant and had told to
prepare for sale deed and gave cheques amounting to
Rs.7,55,00,000/ of different banks and had taken
back the prior cheques of other party worth
Rs.7,48,00,000/ and told to give paper notice that
the said land is not sold to anyone. The same were
denied by them as proper documentation was required
in order to avoid tax disputes. Therefore, a
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dispute had arisen again and on 30.07.2020, in
Bhesna Gam in a farm house, the Police Inspector
(i.e. applicant no.1), who was home quarantined,
had called them by sending WhatsApp location and on
reaching at the location, other accused nos.2, 4, 9
and 10 were present and the first informant and his
brother were threatened and a notarized agreement
of even lesser value was made and sent to the house
of the first informant along with accused nos.2, 3,
4, 9 and other police officials for signature of
father of the first informant along with authority
to do newspaper publication. Therefore, the said
publication was done in the newspaper on
01.08.2020. Thereafter, due to less payment and
improper documentation, the sale deed was denied by
the first informant and accusedapplicant (Police
Inspector) had kept the documents with him
informing that if he makes the sale deed then only
he will give back the papers. Thereafter, the first
informant and his father and brother got notice
from Rander Police Station and got called for
giving reply, but due to fear, they did not go to
the Police Station and gave reply in writing. The
first informant had told his father on 06th
September to come early next day so as to go to the
Commissioner to make a complaint in the matter of
land dispute. However, due to the pressure created
by the accused persons named in the FIR, since past
months, the father of the first informant had
committed suicide according to the first informant,
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in the morning. Therefore, the said F.I.R. came to
be filed subsequently against accused persons as
narrated in the F.I.R. in detail.
4. Learned Counsel Mr.Panchal appearing for the
applicant has submitted that the applicant is
working as a Police Inspector in the Rander Police
Station and he is in fact wrongly embroiled in the
entire episode by the first informant. It is
submitted that except once that too in the month of
January, 2020, the deceased was never called to the
Police Station and on 03.09.2020, there is an
endorsement on an application filed by the deceased
along with his son and he had in fact made an
endorsement that the deceased, being an aged
person, should not be called to the Police Station.
It is submitted that the deceased was never called
by the applicant in the Police Station and he has
no nexus with the suicide of the deceased and at
the relevant time i.e. on 04.02.2020, the Police
Constable namely, Ajay Bhopala along with other
Police Officers is alleged to have gone to the
house of the deceased for asking him to come to the
Police Station. It is further submitted that the
applicant was not present, as can be seen from the
videography during the possession of the land,
which was being carried out and the said fact is
borne out from the statement of the daughterinlaw
and wife of the deceased and from the statement of
son of the deceased namely Jayant Patel.
R/CR.MA/3469/2021 JUDGMENT
4.1 Learned Counsel Mr.Panchal appearing for the
applicant has further submitted that the suicide
note in fact does not contain the name of the
applicant and it refers to the abettor as Police
SubInspector, Rander Police Station and there is
no specific allegation against the applicant and
hence, he may be enlarged on bail. It is further
submitted that in fact there is a land dispute and
the deceased had already pocketed a sum of
Rs.24,40,00,000/ concerning the purchase
consideration of the land in question, which is
borne out from the investigation papers. It is
submitted that the other accused had in fact given
an application to the concerned police station as
well as the Commissioner of Police complaining the
act of the deceased with regard to pocketing of
money and because the entire sale had been under
the investigation done by the Income Tax
Department, the deceased was under constant
pressure and it appears that due to which he had
committed suicide. It is submitted that the
deceased had in fact defaulted in executing the
document and did not act upon his promises and
hence, the coaccused Rajubhai Lakhabhai Bharwad
moved another application on 19.08.2020 before the
Rander Police Station alleging the offences of
cheating against the deceased and his sons. It is
on this application, the deceased and his son had
made an application dated 03.09.2020 seeking
exemption and accordingly the applicant, vide
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endorsement dated 03.09.2020, had dispensed with
presence of the deceased. It is submitted that
there cannot be any mens rea or intention to harass
the deceased so as to drive the deceased to commit
suicide and the endorsement made dispensing with
his presence, is sufficient to indicate that the
ingredients of Sections 306 and 386 of the IPC are
not established.
4.2 Learned Counsel Mr.Panchal appearing for the
applicant has further submitted that the charge
sheet does not reveal that there was any continuous
harassment or torture on the deceased and in fact
the deceased was driven to commit suicide after
such harassment or torture. Attention is also
invited by the learned Counsel to the provisions of
Section 306 read with Section 107 of the IPC and
reliance is also placed on the judgements of the
Apex Court in the case of State of Kerala Vs. S.
Unnikrishnan Nair A.I.R. (2015) S.C. 3351 and also
in the case of Gurcharan Singh Vs. State of Punjab
A.I.R. (2020) 10 S.C.C. 200. While placing reliance
on the aforesaid judgments of the Apex court it is
submitted that merely there is a suicide note that
too not naming the applicant, he cannot be
considered as an accused for the offence under
Sections 306 and 386 of the IPC.
R/CR.MA/3469/2021 JUDGMENT
4.3 Learned Counsel for the applicant has further
submitted that in the present case there is no
allegation with regard to any financial gain since
the provisions of the Prevention of Corruption Act
are not invoked in the case of the applicant.
Finally, it is submitted by the learned Advocate
that the coaccused, who are in fact named in the
suicide note being Kishorbhai Bhurabhai Koshiya
i.e. accused No.6 is protected by the order dated
05.10.2020 passed in Criminal Misc. Application
No.14267 of 2020 by this court in the application
filed under section 482 of the Cr.P.C.; another
accused being Kanaiyalal Labhubhai Narola i.e.
accused No.5 is also protected by this court vide
order dated 06.11.2020 passed in Special Criminal
Application No.5938 of 2020 in the proceedings
filed under section 482 of the Cr.P.C. It is
further submitted that two accused namely Vijay
Bapurao Shinde - accused No.7 has been released on
regular bail by the Coordinate Bench of this Court
vide judgement dated 16.03.2021 passed in Criminal
Misc. Application No.802 of 2021 and accused No.8
being Mukesh Padmakarbhai Kulkarni has been
released on regular bail by the Coordinate Bench of
this Court by order of even date (i.e. 16.03.2021)
passed in Criminal Misc. Application No.270 of
2021. Thus, it is submitted that the applicant, who
is incarcerated in judicial custody since
27.09.2020 and is the Police Inspector, may be
released on bail as neither the ingredients of
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sections 306 or 386 of the IPC are attracted in the
present case nor any provisions of the Prevention
of Corruption Act are invoked.
5. Vehemently opposing the present application,
the learned Additional Public Prosecutor has
pointed out the role of the applicant. He has
submitted that in fact the investigation reveals
that the applicant is the main perpetrator, who is
responsible to drag the deceased for committing
suicide. It is submitted that the applicant had in
fact called the deceased as well as his son to the
Police Station as well as to the Farm House in
order to see that the land deal is fortified by
bringing undue pressure and coercion on the
deceased. It is submitted that due to constant
harassment and threat meted out by the applicant as
a Police Officer, the deceased had committed
suicide. It is submitted that the applicant cannot
take benefit of parity of the other orders passed
by this Court in the case of other accused as the
applicant's role is very serious in nature and
hence, the applicant may not be released. It is
also submitted that the coaccused Rajubhai
Lakhabhai Bharwad had filed an application being
Criminal Misc. Application No.2029 of 2021 seeking
regular bail but that was withdrawn vide order
dated 22.02.2021 before the Coordinate Bench of
this Hon'ble Court.
R/CR.MA/3469/2021 JUDGMENT
6. Learned advocate Mr.Bhadrish Raju appearing
for the first informant has supported the
submissions advanced by learned Additional Public
Prosecutor. Learned advocate Mr.Raju, while
pointing out the role of the applicant from the
investigating papers, has submitted that the
applicant, though was not having jurisdiction to
deal with such dispute, had in fact summoned the
first informant and deceased to the Police Station
and to the Farm House to force them to enter into
the land transaction. He has further invited
attention of this court to the suicide note and has
submitted that in fact it can be inferred from the
suicide note that the applicant and the police
authorities of the concerned Police Station were
involved in meting out the threat and coercion on
the deceased to the extent that he was forced to
commit suicide. Learned advocate Mr.Raju has
submitted that all the accused had in fact wrongly
created the dispute about the land by concocting
the documents and hence, the applicant, who has
played vital role, may not be released on bail. It
is submitted that in the CCTV footage, which was
taken by one Shri Ajaybhai Bhopal, it is
established that the conspiracy was committed by
the applicant with other accused and they were
responsible for mental cruelty on the deceased and
hence, the deceased was forced to sign the
documents against his will. It is further submitted
that the orders, which are made in favour of the
R/CR.MA/3469/2021 JUDGMENT
coaccused by the Coordinate Benches, are in fact
in the quashing proceedings filed under section 482
of the Cr.P.C., which are absolutely in different
domain than the present proceedings and hence, the
present application may not be allowed. Learned
advocate Mr.Raju has further submitted that in fact
the applicant has orchestrated the panchnama of
possession, whereby the possession of land was
forcibly taken from the son of the deceased
(brother of the first informant).
6.1 Learned advocate Mr.Raju has placed reliance
on the judgement of the Apex Court in the case of
Arvinder Singh Bagga Vs. State of U.P. and Ors.,
1994 (6) S.C.C. 565 in support of his submissions
and has submitted that the applicant, being a
Police Officer has acted beyond his duty by
exerting pressure on the deceased, which led him to
commit suicide. He has further placed reliance on
the averments made in paragraph No.5 of his
affidavit filed by the first informant with regard
to the exact role played by the applicant in the
entire episode. It is submitted that in fact the
applicant, in order to help the accused Rajubhai
Lakhabhai Bharwad had threatened and abused the
first informant as well as the deceased, which led
the deceased to commit suicide. By referring to the
various averments with regard to the threatening by
the applicant accused to the son of the deceased
namely, Jayantbhai Patel. It is submitted that on
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03.02.2020 at around 08:00 p.m., the applicant had
asked the first informant and deceased to execute
the documents in favour of accused Rajubhai
Lakhabhai Bharwad and accused Kishorbhai
Bhurabhai Koshiya and the applicant was made to sit
in the Police Station until 12:00 midnight of
03.02.2020. Further, on 04.02.2020, the accused had
sent the subordinate Police Officer at the house of
the deceased to coerce him to come at the Rander
Police Station. Thereafter, on 25.06.2020, the
applicant accused had called the son of the
deceased to Rander Police Station and informed them
about the issue regarding the plot of the land in
question and again threatened them. It is submitted
by him that thereafter, the applicant had taken
undated cheques from the son of the deceased in
presence of the accused Rajubhai Lakhabhai
Bharwad and thus, the entire conspiracy was placed
by the applicant with accused Rajubhai Lakhabhai
Bharwad in order to take possession of the land,
which had driven the deceased to commit suicide.
7. Heard the learned advocates of the respective
parties and also perused the relevant documents on
record.
8. The case of the prosecution is based on the
suicide note, which is written by the deceased. The
same translates as under:
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"I hereby write with full consciousness of mind
and body that my land is located along Pisad
Jahangirpura Canal Road, Surat. The aforesaid
land has been sold to four persons mentioned
below. 1. Bhavesh Savani, 2. Raja Lakha Bharwad,
3. Kishor Dosiya, 4. Kanaiyalal. Above mentioned
persons at serial No.1, 3, 4 are resident of
village Katar, Surat and 1. Raja Lakha Laskana,
resident of Kamrej, is the owner of Raj Hotel.
As a monetary dispute took place in the
aforesaid land, above mentioned persons and
P.S.I., Rander police station frequently came to
my house and issued threats to kill me and my
family if sale deed is not executed. I was to go
to Surat in this regard. But, as above mentioned
persons issued threats, I decided to commit
suicide by falling off. I request the P.C. to
award maximum punishment to above mentioned five
persons. Only then, my soul will rest in peace.
Sd./ Illegible
Police Surat
Police Commissioner "
A perusal of the aforesaid note reveals that
there are five accused named in the suicide note:
(i) Bhavesh Savani
(ii) Raja Lakha Bahrwad
(iii) Kishor Dosiya
(iv) Kanaiyalal and
(v) One PSI of the Rander Police station.
9. The deceased had committed suicide between
night of 6th to morning 7th of September, 2020 by
leaving the aforesaid suicide note. Pursuant to the
aforesaid suicide note, the aforenoted F.I.R. was
registered before Mandvi Police Station, Dist.
Surat and chargesheet for the offences punishable
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under sections 306, 506(2), 386, 270, 271, 201,
120(B) and 114 of the IPC and was registered and
investigation was carried out.
10. As noted hereinabove, the first informant had
specifically made allegations against the accused
with regard to the land dispute. A perusal of the
F.I.R. as well as papers of the chargesheet
reveals that the father of the deceased had entered
into the sale transaction of the land admeasuring
10,218 sq. mtrs. in Adajan, Surat which was sold to
accused No.6 - Kishorbhai Bhurabhai on 17.03.2015
based on an agreement to sell on a note at
Rs.24,03,88,687/ and accused Nos.5 and 6,
Kanaiyalal Narola and Kishorbhai Bhurabhai had paid
worth Rs.18 crores in cash to the father of the
first informant on different dates and
Rs.3,09,30,584/ by cheques of different banks. It
appears from the F.I.R. and the chargesheet papers
that the entire sale transaction was embroiled in
the Income Tax investigation as a raid was carried
out on the premises of the deceased on 17.10.2016,
which culminated in the tax liability of Rs.13
crores on the deceased. It appears that thereafter,
there were some disputes with regard to the
possession of the land and it is alleged that the
applicant with the other coaccused, in order to
take possession of the land, had threatened and
pressurized the deceased resulting into his death
by committing suicide.
R/CR.MA/3469/2021 JUDGMENT
11. The entire case of the prosecution is that the
applicant, who was a Police Officer, had acted
beyond his jurisdiction and has mala fidely with
ulterior motive exercised his powers as a Police
Officer to drive the deceased to commit suicide.
The applicant is also charge sheeted with the
offence punishable under section 386 of the IPC
which stipulates "Extortion by putting a person in
fear of death or grievous hurt".
12. At this stage, it would be apposite to refer
to the provisions of section 306 read with section
107 of the IPC.
"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.
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"
13. The Apex Court in the case of S. Unnikrishnan
Nair (supra) has observed thus:
R/CR.MA/3469/2021 JUDGMENT
"11. The aforesaid provision was interpreted in
Kishori Lal V. State of M.P by a twoJudge Bench
and the discussion therein is to the following
effect:
"Section 107 IPC defines abetment of a
thing. The offence of abetment is a separate
and distinct offence provided in IPC. A
person, abets the doing of a thing when (1)
he instigates any person to do that thing;
or (2) engages with one or more other
persons in any conspiracy for the doing of
that thing; or (3) intentionally aids, by
act or illegal omission, the doing of that
thing. These things are essential to
complete abetment as a crime. The word
"instigate" literally means to provoke,
incite, urge on or bring about by persuasion
to do anything. The abetment may be by
instigation, conspiracy or intentional aid,
as provided in the three clauses of Section
107. Section 109 provides that if the act
abetted is committed in consequence of
abetment and there is no provision for the
punishment of such abetment, then the
offender is to be punished with the
punishment provided for the original
offence. "Abetted" in Section 109 means the
specific offence abetted. Therefore, the
offence for the abetment of which a person
is charged with the abetment is normally
linked with the proved offence."
12. In Analendu Pal Alis Jhantu v. State of West
Bengal[5] dealing with expression of abetment the
Court observed:
"The expression "abetment" has been defined
under Section 107 IPC which we have already
extracted above. A person is said to abet
the commission of suicide when a person
instigates any person to do that thing as
stated in clause Firstly or to do anything
as stated in clauses Secondly or Thirdly of
Section 107 IPC. Section 109 IPC provides
that if the act abetted is committed
pursuant to and in consequence of abetment
R/CR.MA/3469/2021 JUDGMENT
then the offender is to be punished with the
punishment provided for the original
offence. Learned counsel for the respondent
State, however, clearly stated before us
that it would be a case where clause Thirdly
of Section 107 IPC only would be attracted.
According to him, a case of abetment of
suicide is made out as provided for under
Section 107 IPC."
13. As we find from the narration of facts and
the material brought on record in the case at
hand, it is the suicide note which forms the
fulcrum of the allegations and for proper
appreciation of the same, we have reproduced it
hereinbefore. On a plain reading of the same, it
is difficult to hold that there has been any
abetment by the respondents. The note, except
saying that the respondents compelled him to do
everything and cheated him and put him in deep
trouble, contains nothing else. The respondents
were inferior in rank and it is surprising that
such a thing could happen. That apart, the
allegation is really vague. It also baffles
reason, for the department had made him the head
of the investigating team and the High Court had
reposed complete faith in him and granted him the
liberty to move the court, in such a situation,
there was no warrant to feel cheated and to be
put in trouble by the officers belonging to the
lower rank. That apart, he has also put the blame
on the Chief Judicial Magistrate by stating that
he had put pressure on him. He has also made the
allegation against the Advocate.
14. *** *** ***
15. In M. Mohan (supra), while dealing with the
abatement, the Court has observed thus:
"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.
R/CR.MA/3469/2021 JUDGMENT
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."
14. The Apex Court in the case of Gurcharan Singh
(supra), while examining the provisions of section
107 and section 306 of the IPC, has reiterated the
proposition of law and has observed thus:
"15. As in all crimes, mens rea has to be
established. To prove the offence of abetment, as
specified under Sec 107 of the IPC, the state of
mind to commit a particular crime must be
visible, to determine the culpability. In order
to prove mens rea, there has to be something on
record to establish or show that the appellant
herein had a guilty mind and in furtherance of
that state of mind, abetted the suicide of the
deceased. The ingredient of mens rea cannot be
assumed to be ostensibly present but has to be
visible and conspicuous. However, what transpires
in the present matter is that both the Trial
Court as well as the High Court never examined
whether appellant had the mens rea for the crime,
he is held to have committed. The conviction of
Appellant by the Trial Court as well as the High
Court on the theory that the woman with two young
kids might have committed suicide, possibly
because of the harassment faced by her in the
matrimonial house, is not at all borne out by the
evidence in the case. Testimonies of the PWs do
not show that the wife was unhappy because of the
appellant and she was forced to take such a step
on his account."
15. The Supreme Court in the aforenoted
observation has recommended the interpretation of
R/CR.MA/3469/2021 JUDGMENT
provisions of section 107 of the IPC, which defines
"abetment". I may consciously and ostensibly
examine the facts of the present case in light of
the aforenoted parameters since any elaborate
discussion may affect either of the parties in the
trial proceedings. Coming to the present case, the
suicide note does name some of the accused but name
of the applicant is missing and instead the
deceased has referred to the Police SubInspector
of Rander Police Station however, the first
informant has specifically named the applicant,
being the person, who had instigated and threatened
the deceased to finalize the land deal and handover
the possession of the land. The entire case of the
prosecution prima facie does not satisfy the
ingredients of section 107 of the IPC as it appears
from the material, which is brought on record, that
it cannot be assumed that the applicant had in fact
provoked, incited or urged or persuaded or had
conspired intentionally or aided in manner and had
left no other alternative to the deceased but to
commit suicide. From the papers of the
investigation, it is also apparent that since the
deceased was not respecting his commitment to the
sale of the land, the coaccused had also
approached the Police Station as well as the
Commissioner of Police, Surat against him seeking
filing an appropriate complaint under sections 406,
420, 506 and 120B of the IPC. The coaccused in the
application dated 17.08.2020 written to the Surat
R/CR.MA/3469/2021 JUDGMENT
Police Commissioner had specifically alleged fraud
and cheating on behalf of the deceased in not
handing over the possession of the land, though he
had paid all the amount as per the sale deed. It is
also coming on record that on the application
preferred by one of the coaccused, the first
informant and his deceased father had made an
application to the applicant - accused seeking
exemption of presence of the deceased and
accordingly an endorsement was also made by the
applicant on 03.09.2020 on the application
exempting the deceased to come at the police
station since he was an aged person. The F.I.R.
also refers to the money transactions of the sale
of land. The contents of the F.I.R. also reveal
that the land deal was enmeshed in the income tax
proceedings against the deceased resulting in to
extra liability of Rs.13,00,00,000/.
16. This court has perused the F.I.R. as well as
the chargesheet papers and considering the facts
and circumstances under which the deceased has
committed suicide prima facie it reveals that at
the most the applicant may have acted beyond his
duty/jurisdiction or his actions may be termed as
unbecoming of a government servant or he has
arbitrarily/illegally exercised his powers as a
police officer to facilitate the land deal, but
there is nothing to suggest that the applicant had
coerced or incited or instigated the deceased in
R/CR.MA/3469/2021 JUDGMENT
snuffing out his own life. There is a slender
distinction with regard to mala fide, illegal and
arbitrary exercise of powers by a government
servant which may necessitate disciplinary action
rather than criminal culpability. There is no
allegation with regard to any financial gain or any
other illegitimate yields from his action. The
F.I.R. is blissfully silent about putting the first
informant and the deceased in fear of death or
grievous hurt. Reliance placed by the first
informant on the decision in the case of Arvinder
Singh Bagga (supra) is illconceived, since the
same operates in different realm as it pertains to
grant of compensation to the victims of illegal
arrest and torture by the police.
17. Under the circumstances, without expressing
further anything on merits, in the considered
opinion of this Court, the applicant has carved out
a case of granting bail in his favour under Section
439 of the Cr.P.C.
18. Having perused the materials placed on record
and taking into consideration the facts of the
case, nature of allegations, gravity of offences,
role attributed to the accused, without discussing
the evidence in detail, at this stage, this Court
is inclined to grant regular bail to the applicant.
This Court has considered following aspects;
R/CR.MA/3469/2021 JUDGMENT
(i) The role attributed to the accused;
(ii)The applicant is behind bars since 27.09.2020;
(ii) The investigation is over and the charge
sheet is filed;
(iii) Prima facie there is nothing to suggest that
the applicant had instigated or abetted the
deceased to commit suicide;
(iv) The suicide note does not contain the name of
the applicant;
(v) Prima facie the investigation does not reveal
that the deceased or the first informant was put
to fear of death or grievous hurt;
(vii) Prima facie there is nothing to suggest that
the applicant had financially or otherwise
illegally gained from his actions.
(viii) It is also not expressed that if the
applicant is released on bail, he will in any
manner temper with the evidence or influence the
trial proceedings
19. This Court has also taken into consideration
the law laid down by the Apex Court in the case of
Sanjay Chandra Vs. Central Bureau of
Investigation, (2012) 1 SCC 40;
20. In the result, the present application is
allowed and the applicant is ordered to be released
on regular bail in connection with an F.I.R. being
C.R. No.A/11214032201643 of 2020 registered with
R/CR.MA/3469/2021 JUDGMENT
Mandvi Police Station, Dist. Surat, on executing a
personal bond of Rs.75,000/ (Rupees Seventy Five
Thousand Only) with one local surety of the like
amount to the satisfaction of the learned Trial
Court and subject to the conditions that he shall;
(a) not take undue advantage of liberty or misuse
liberty;
(b) not act in a manner injurious to the interest
of the prosecution;
(c) surrender his passport, if any, to the lower
court within a week;
(d) not leave the State of Gujarat without prior
permission of the concerned Trial Court;
(e) mark presence before the concerned Police
Station on alternate every Monday for initial six
months and thereafter, on alternate Monday of every
English calendar month, for a period of six months,
between 10:00 a.m. and 2:00 p.m.;
(f) furnish latest address of residence to the
Investigating Officer and also to the Court at the
time of execution of the bond and shall not change
the residence without prior permission of the Trial
Court;
21. The Authorities will release the applicant
only if he is not required in connection with any
other offence for the time being. If breach of any
of the above conditions is committed, the concerned
Trial Court will be free to issue warrant or take
appropriate action in the matter. Bail bond to be
R/CR.MA/3469/2021 JUDGMENT
executed before the Trial Court having jurisdiction
to try the case.
22. It will be open for the concerned Court to
delete, modify and/or relax any of the above
conditions in accordance with law. At the trial,
learned Trial Court shall not be influenced by the
observations of preliminary nature, qua the
evidence at this stage, made by this Court while
enlarging the applicant on bail. Rule is made
absolute accordingly.
23. Registry is directed to intimate the concerned
jail authority and the concerned Sessions Court
about the present order by sending a copy of this
order through Fax message, email and/or any other
suitable electronic mode.
24. Learned advocate for the applicant is also
permitted to send a copy of this order to the
concerned jail authority and the concerned Sessions
Court through Fax message, email and/or any other
suitable electronic mode.
Sd/-
(A. S. SUPEHIA, J)
NVMEWADA//Bhavesh-[PPS]*
