Sanjaybhai Raghuvirbhai Gohil vs The State Of Gujarat
2021 Latest Caselaw 7821 Guj

      R/CR.MA/5007/2021                              ORDER DATED: 06/07/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 5007 of 2021

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                          SANJAYBHAI RAGHUVIRBHAI GOHIL
                                      Versus
                              THE STATE OF GUJARAT
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Appearance:
VATSAL S PARIKH(7452) for the Applicant(s) No. 1
MS.M.K.THAKKER, APP (2) for the Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                 Date : 06/07/2021

                                  ORAL ORDER

[1] Heard the learned advocates for the respective parties through video conferencing.

[2] By way of the present application filed under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for bail in connection with the FIR being C.R.No. 11198068210262 of 2021 registered with Bharatnagar Police Station, District Bhavnagar for the offences under Sections 306 and 114 of the Indian Penal Code, 1860 and Section 40 of the Gujarat Money Lenders Act.

[3] It is stated in the FIR that the complainant was at work nearly around 03:00 p.m. to 03:15 p.m. and she received a call from her husband stating that if she wanted to see his face then she has to come home immediately. The complainant on reaching her home saw that her husband was vomiting and on inquiring her husband said that he had consumed poison and, therefore, the complainant

R/CR.MA/5007/2021 ORDER DATED: 06/07/2021

as well as her boss and her son took her husband to Sir T. Hospital for treatment.

[3.1] It is further alleged in the FIR that before a month the husband of the complainant had informed the complainant as well as her children that the husband of the complainant was in tension as he had taken loan from his co-employees as well as other persons before demonetization at the rate of 20% to 25% and that he was paying Rs.60,000/- as monthly interest.

[3.2] It is also alleged that on 10.02.2021 at 09:30 in the morning, the husband of the complainant had given names to the complainant as well as her daughter from whom the husband of the complainant had taken loan.

[3.3] The complainant has alleged that the accused mentioned in the FIR were demanding money back and thereby caused mental harassment to the husband of the complainant due to which he had consumed the poison.

[4] Learned advocate Mr.Parikh for the applicant has submitted that the allegations with regard to the present applicant is that the deceased has taken the loan of Rs.3,50,000/- from him and from 9 other persons and a false complaint had been filed against the present applicant to avoid re-payment of money. He has also submitted that the co-accused, having similar role, has been released on anticipatory bail vide order dated 22.04.2021 passed in Criminal Misc. Application No.6556 of 2021.

[5]    Learned advocate for the applicant has further submitted that





       R/CR.MA/5007/2021                          ORDER DATED: 06/07/2021

the contents of the FIR do 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. He has placed reliance on the judgment of the Apex Court in the case of Sanju Alias Sanjay Singh Sengar V/s. State of M.P. reported in 2002 (5) SCC 371.

[6] Learned advocate for the applicant, on instructions, states that the applicant is ready and willing to abide by all the conditions, including imposition of conditions with regard to powers of investigating agency to file an application before the competent Court for his remand. He further submits that upon filing of such application by the investigating agency, the right of the applicant accused to oppose such application on merits may be kept open. Learned advocate, therefore, submits that considering the above facts, the applicant may be granted bail.

[7] On the other hand, the learned Additional Public Prosecutor appearing on behalf of the respondent- State has opposed grant of bail looking to the nature and gravity of the offence. Learned APP has submitted that 91 calls were made by the applicant, deceased as per the call records. It is submitted that the applicant was threatening the deceased for returning his money. It is submitted by her that chit having names of all accused, from whom the deceased has taken loan/amount, was also found. Hence, this application may not be allowed.

[8] 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

R/CR.MA/5007/2021 ORDER DATED: 06/07/2021

goad or urge forward to provoke, incite, urge or encourage to do an act. Merely the accused goaded the 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 filed 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 the deceased should commit suicide. In fact, as per the allegation,the accused wanted the loan advance from them to be repaid, and for that purpose could always had intended the deceased to live.

[9] This Court has considered the following aspects;

(a) Co-accused having similar role has been released on anticipatory bail vide order dated 22.04.2021 passed in Criminal Misc. Application No.6556 of 2021;

(b) The FIR does not show any prima facie case against the present applicant;

(c) There is no direct instigation or abetment by the applicant;

(d) Prima facie considering the facts of the case, the custodial interrogation of the applicant is not necessary at this stage.

Looking to the over all facts and circumstances of the present case, I am inclined to consider the case of the applicant.

[10] 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 of IPC referring to the word 'suicide',

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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."

[11] 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 of the IPC. 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.

[12] 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. State of Punjab, reported in (1980) 2 SCC

565. This Court has also taken into consideration the recent

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decision of the Apex Court in the case of Sushila Aggarwal and others Vs. State (NCT of Delhi) reported in (2020) 5 SCC 01. 9.

[13] 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 FIR being C.R.No. 11198068210262 of 2021 registered with Bharatnagar Police Station, District Bhavnagar on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that he :

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

(b) shall remain present at the concerned Police Station on 13.07.2021 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 concerned

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

[14] Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicant, if he considers it proper and just and the Magistrate would decide it on merits. The applicant shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the 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 concerned 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 bail order.

[15] At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.

[16] The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Registry is directed to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.

[17] Learned advocate for the applicant is also permitted to send

R/CR.MA/5007/2021 ORDER DATED: 06/07/2021

a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.

(A. S. SUPEHIA, J) VARSHA DESAI