Gujarat High Court

Vijay Bapurao Shinde vs State Of Gujarat on 16 March, 2021

Bench: B.N. Karia

       R/CR.MA/802/2021                                        CAV JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 802 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA
==========================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law

as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== VIJAY BAPURAO SHINDE Versus STATE OF GUJARAT ========================================================== Appearance:

MR R.R. MARSHALL, SENIOR ADVOCATE WITH MR HARDIK A

DHRUV TOLIYA(9249) for the Respondent(s) No. 1 MR. BHADRISH S RAJU(6676) for the Respondent(s) No.2-Orig. Complainant.

========================================================== CORAM: HONOURABLE MR. JUSTICE B.N. KARIA Date : 16/03/2021 CAV JUDGMENT

1. Present applicant is involved in the offence in connection

with the FIR being C.R.No.11214032201643 of 2020

registered with Mandvi Police Station, Dist.: Surat for the

offence punishable under Sections 306, 506(2), 386, 270,

271, 201, 120B and 114 of the Indian Penal Code

(hereinafter referred to as "the IPC" for short). Therefore, it is

requested by the applicant to release him on regular bail by

filing this application under Section 439 of the Code of

Criminal Procedure, 1973 (hereinafter referred to as "the

Cr.P.C." for short).

2. Facts of present case may be referred as under:

The complainant 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 complainant's father since

1982. As per the prosecution case, on 07.09.2020, at

around 04:30 a.m. in the morning, the complainant got a

call from his brother informing that the Manager i.e.

Sandeepbhai has informed that father has lost, and

therefore, the complainant went to the quarry in his car

and reached there by 05:45 a.m. and his brother also

reached. Thereafter the complainant on searching the

quarry along with the Manager and other friends, torch,

chappal and mobile of the father were found from the

entrance of the quarry in front of the office. While

searching for the father of the complainant, the Manager

had informed that at 03:45 a.m. in the morning, father of

the complainant had called the Manager and told that

when the complainant comes to the office, he will give

him the note which is kept in the diary of his father.

Therefore, the complainant asked that if the Manager had

read the note to which, he denied and handed over the

note to the complainant, which was written by the father

of the complainant. It was written in the note that father

of the complainant had a property of 10218 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 complainant 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, a tax raid was made on his premises and

based on the note of agreement to sell, there was a tax

inquiry on the complainant as well. As a result of the tax

inquiry, all the truth was told by the father of the

complainant, 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

complainant 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

complainant and total liability was Rs.13,00,00,000/ of

the father of the complainant. Father of the complainant

had talked to accused no.6, whereby he had assured to

pay the same. Thereafter, on 30.01.2019, accused no.6

had sent a legal notice against the promise and statement

given in income tax to which the father of the

complainant had replied through his advocate on

04.02.2019. Thereafter, on 02.01.2020, at around 78

p.m., Police Officers came to the house of the

complainant and asked the father to come to Police

Station as Police Inspector (i.e. accused no.1) had called

him immediately to which the father of the complainant

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 complainant 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 to speak badly

with the father of the complainant and by then accused

no.4 viz. Bhavesh Shawani came and forced him to give a

notarized document immediatley 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. Complainant was

forced to be the witness therein. 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 accused no.6 i.e. accused no.5 had told the

father of the complainant 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 complainant had asked for a detailed document in

those regards which was denied and told that only

normal document will be given. Thereafter, on

04.02.2020, 45, police officers had come to the house to

call the father of the complainant, but the mother had

denied as the father was not well and was asleep and on

the knowledge of the same, the brother of the

complainant had sent an application to the S.P., against

the same through whatsapp after which the police

officers had returned back. Thereafter, on 18.02.2020,

accused nos.2, 3, 7 (i.e. present applicant) and accused

no.8 had to the house of the complainant with ready

document of satakhat along with possession and showed

the signature and videography of the father of the

complainant and had told to prepare for sale deed and

given 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 and the prior

documentation as to accused no.3. Therefore, a dispute

had arisen again and on 30.07.2020, in Bhesna Gam in a

farm house, Police Inspector (i.e. accused 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 complainant and

his brother were threatened and a notarized agreement

of even lesser value was made and sent to the house of

the complainant along with accused nos.2, 3, 4, 9 and

other police officials for signature of father of the

complainant along with authority to do paper

publication. Therefore, the said publication was done in

paper on 01.08.2020. Thereafter, due to less payment

and improper documentation, the sale deed was denied

by the complainant and accused no.1 (P.I.) had kept the

documents with him informing that if he makes the sale

deed then only he will give back the papers. Thereafter,

the complainant 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 complainant 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 complainant had

committed suicide according to the complainant, in the

morning. Therefore, the said FIR came to be filed

subsequently against accused persons as narrated in the

FIR in detail.

3. Heard Mr.R.R. Marshall, learned Senior Advocate

appearing with Mr.Hardik A. Dave, learned advocate for the

applicant, Mr.Manan Mehta, learned APP for the respondent

State as well as Mr.Bhadrish S. Raju, learned advocate for the

original complainant.

4. It is submitted by learned Senior Advocate for the

applicant that the applicant is wrongly involved by the

prosecution in the alleged offence, however, he has not

committed any offence as alleged in the FIR. It is further

submitted that the applicant is arraigned as accused no.7 in

the complaint and as per the allegations, he was serving as

Police Constable, but not attached with Rander Police Station.

Referring the documents produced on record, it is further

submitted that present applicant came into picture for the first

time on 18.02.2020. That he is not named in the suicide note

allegedly written by the deceased. That he was serving with

Udhna Police Station and there is no criminal antecedent

against the applicant. It is further submitted that there is no

involvement of present applicant in the alleged offence.

Learned advocate has also referred the statements of Ravi

Nareshbhai Kharadi and Dipak J. Patel. It is argued that the

dispute is pertaining to the land transaction and income tax

liability with which even as per the case of the prosecution,

the applicant had nothing to do with and therefore, there was

no motive or intention on the part of the applicant to

participate in the alleged offence. That on 18.02.2020,

agreement to sell with possession was executed and cheques

were replaced of new purchaser. That the said act of execution

of agreement to sell with possession was voluntary act on the

part of the deceasedfather of the first informant, with a

condition that only after fulfillment of condition as mentioned

in previous agreement to sell and only after receipt of some

bank guarantee like papers for income tax liability, sale deed

will be executed. It is further submitted that accompanying co

accused, when there was no dispute between deceasedfather

of the first informant and other accused persons and even as

per the case of the prosecution itself, it cannot be termed as

any illegal act much less illegal act constituting any punishable

offence much less offences of abatement to commit suicide.

Even it is not a case of the prosecution that the applicant has

ever participated in the alleged act of threatening. It is further

submitted that no necessary ingredients in the alleged offence

punishable under Section 306 of the IPC are made out against

the applicant. It is further submitted that there is not whisper

about any act of abetment as defined under Section 107 of the

IPC and there is no proximity of the alleged act of the

commission of the suicide due to which, deceased was not left

with any other option, but to commit suicide. That in the

chargesheet papers, no such incident is mentioned or

happened, in fact, in near proximity of time, which can be

termed as abatement. It is further submitted that there is no

mens rea to commit offence or any active act or direct act of

the applicant which led the deceased to commit suicide. That

the applicant is a permanent resident of Surat, and thereby,

has property therein and he is not likely to run away in any

case as the investigation is over and chargesheet is filed in the

present case and there is no need of the custodial

investigation. It is further submitted that in the chargesheet at

Page101, the complainant has alleged that when the

applicant came to the house of his father for threatening him,

he had a revolver in his hand. The Investigating Officer has

also made a note at the same page of chargesheet papers that

CCTV Footage was examined and installed at the resident of

the complainant and C.D was prepared which was produced.

That CCTV Footage was checked in the presence of the

complainant and panchas as well as the Investigating Officer.

At that time, there was no revolver in the hand of the

applicant. It was also further observed in the note of the

chargesheet papers that no evidence was found during the

course of investigation that at the time of visiting the house of

the deceased by present applicant, he had visited along with

revolver to give threat at the house of the complainant. It is

further submitted that no charge of Arms Act was applied by

the prosecution. That the applicant is arrested on 25.09.2020,

and thereafter, he is behind the bar for more than six months

and the name of present applicant is not disclosed in the

suicide note. Hence, it is requested by learned Senior Advocate

for the applicant to allow this application by releasing the

applicant on regular bail with suitable conditions.

5. While opposing the prayer, learned APP for the respondent

State has strongly argued that involvement of present

applicant in the offence as alleged by the prosecution is clearly

made out by the Investigating Officer. Referring the statement

of Dharmeshbhai, it is submitted that meeting was arranged

with the deceased and other accused persons by present

applicant on 09.09.2020. He has also referred the call details

of accused persons and further argued that present applicant

was in contact with other accused persons in number of times.

That he was in constant contact with other accused persons

and he had played active role in commission of the offence.

That constant mental torture was given by present applicant to

the deceased and in connivance with other accused persons,

the applicant is involved in the alleged offence. That criminal

conspiracy was clearly hatched by present applicant with other

accused persons. That as serious offence is committed by

present applicant, no lenient view may be taken by this Court.

Hence, it was requested by learned APP for the respondent

State to dismiss present application.

6. Mr.Bhadrish S. Raju, learned advocate appearing for

original complainant has vehemently opposed the arguments

advanced by learned advocate for the applicant and submitted

that from the perusal of the chargesheet papers, involvement

of present applicant is clearly made out by the prosecution.

That deceased was pressurized by present applicant along with

coaccused persons. That in the chargesheet, Section 120B of

the IPC is applied by the prosecution and no arguments are

advanced on this issue by the applicant. That in the year 2014,

agreement to sell was executed with the deceased in

connection with the land situated in the village. That the

amount was received by the deceased. Thereafter, raid of

income tax department was made at the premises of co

accused Kishorbhai Bhurabhai. It is further submitted that the

deceased was hit by two different liabilities of tax as well as

capital gain. That as per the statement of son of deceased viz.

Dharmeshbhai, liability of tax was assessed more than

Rs.13,00,00,000/ of the deceased. That the deceased

contested tax proceedings. Thereafter, entry of other accused

persons namely Rajubhai Bharvad was made and bail

application preferred by coaccused Rajubhai Bharvad was

withdrawn after filing the chargesheet before the Coordinate

Bench of this Court. That in the chargesheet, Section 386 of

the IPC is also attracted by the prosecution and original

satakhat was dated 07.03.2014 when Kishorbahi had

purchased the land and Durlabhbhai Patel sold the land and

present applicant along with other coaccused persons

suddenly entered into their rights in the land without

initiating any civil proceedings. That on 12.02.2018, one

satakhat was executed between accused viz. Rajubhai

Bharwad and Bhavesh Savani as document was created, and

therefore, Section 386 of the IPC was rightly applied by the

prosecution. That coaccused viz. Rajubhai Bharvad had given

one complaint to Rander Police Station against Bhavesh

Savani and Durlabhbhai on 29.12.2019. Thereafter, Bhavesh

Savani had also made one complaint to Police Inspector of

Rander Police Station against Durlabhbhai, Jayantbhai Patel

and Dharmeshbhai on 02.01.2020. That all of them tried to

create their rights wrongly in the disputed land and bogus and

concocted documents were created by them. That police did

not file any FIR. That on 02.01.2020, deceased and his two

sons were taken to Police Station. That Mr. Badana, Police

Inspector, is in judicial custody at present and his bail

application for regular bail is pending before the Coordinate

Bench. That the deceased was forced to make satakhat by

police referring affidavit executed by deceased on 03.012020

and it was submitted that it was notarized. That one complaint

was forwarded by whatsapp through Police Commissioner by

Jayantbhai Patel on 04.02.2020. That Rander Police Station

has no jurisdiction to deal with the issue. That present

applicant was suspended from service twice by the department

that he has called the deceased through private office along

with Rajubhai Bharwad and other police personnel.

Thereafter, they went to Rander Police Station and certain

documents were forced to sign by the deceased. On

30.02.2020, present applicant, Rajubhai Bharwad and other

coaccused persons were found in CCTV Footage as they had

come to the house of the deceased. That draft document was

prepared showing the amount of Rs.7,50,00,000/ and

deceased was compelled to make his signature on a draft

document. That again on 18.02.2020, present applicant along

with other coaccused persons came at the house of the

deceased with an agreement of possession of land showing

that it was a forged document and possession of the land was

taken from the deceased. It was further argued by learned

advocate for the original complainant that on 21.02.2020, son

of the deceased was also called at the private office of present

applicant. That videography was also made showing that

deceased was handing over the possession of the land to the

accused persons. Learned advocate for the original

complainant has referred the statement of prosecution witness

viz. Dipakbhai Patel and submitted that forcefully possession

of the land was taken by Rajubhai Bharwad in presence of the

applicant, which is clearly part of criminal conspiracy. He has

also referred the statements of Dharmeshbhai and

Durlabhbhai and argued that Mr.Badana, Police Inspector has

no jurisdiction to investigate the offence or to make any

inquiry. That Badana had also sent certain messages through

whatsapp from his farm location. Referring statement of

Ajitbhai Patel, Deputy Sarpanch, it is argued that CCTV

Footage was taken by one Shri Ajaybhai Bhopal. It is clearly a

part of conspiracy committed by the accused persons. It is

further argued that mental cruelty was given to the deceased

by present applicant as he was forced to sign the documents.

That coaccused person viz. Rajubhai Bharwad had issued a

public notice through his advocate in his newspaper. He has

referred the statement of Maheshbhai Patel and has submitted

that he has not signed a public notice. That call records of

present applicant are produced on record showing interse

communication of present applicant with coaccused person in

number of times. That present applicant was present at the

house of the deceased when sale of agreement was to be

executed and presence was also secured in CCTV Footage

collected by the prosecution. That on account of suspension

from service, departmental proceedings were initiated against

him. That he is involved in other criminal offence also. That

panchnama of his office was also prepared. Referring the

statement of Dinesh Bhikhabhai Patel, it was submitted that a

private office of present applicant is situated within the

jurisdiction of Rander Police Station. That application

preferred by Rajubhai Bharvad was withdrawn by him and the

Trial Court has rightly observed in detail while rejecting the

prayer for granting bail. That the complaint was filed before

Rander Police Station purposefully although the said Police

Station had no jurisdiction with respect to the land in

question. That the complaint was filed before Rander Police

Station only with a view to extort undue pressure upon the

deceased and the family of the deceased from the police

officers at Rander Police Station. That in the month of June,

meeting was scheduled at the applicant's office, whereby the

applicant took back cheques worth Rs.7,50,00,000/ and

issued fresh cheques of Rs.7,50,00,000/ to the deceased. That

on account of constant pressure and torture inflicted upon the

deceased by the applicant in connivance with the other

accused persons to make the deceased part with his rightfully

owned property, on 07.09.2020, deceased had committed

suicide leaving back a suicide note blaming the accused

persons as the persons responsible for the committal of

suicide. That the applicant is arraigned as accused no.7 in the

FIR and accused no.3 as per the chargesheet. That from call

details record, present applicant was in constant touch with

other accused persons which is a direct indication of the fact

that conspiracy committed in the offence to commit the said

offence was being hatched by the applicant along with other

coaccused over a long period of time. That role of present

applicant clearly establishes the agreement of present

applicant and other coaccused persons to commit the offence

as alleged by the prosecution. That there is proximate link

between the act of the applicant and the commission of suicide

by the deceased since the cruelty and harassment meted out to

the victim i.e. Durlabhbhai Patel over a prolonged period of

time had left the victim with no alternative, but to put an end

to his life. That the applicant is a party to a criminal

conspiracy for the offence under Section 120B of the IPC. That

the applicant has a criminal history and FIR was registered

before Adajan Police Station, Dist.: Surat for the offence

punishable under Sections 143, 144, 147, 341, 352, 323 and

502(2) of the IPC, Section 135(1) of the Gujarat Police Act

and Section 25(1)(a) of the Arms Act. That if the present

applicant is released on regular bail, there is all likelihood that

present applicant shall free from justice. Hence, it was

requested by learned advocate for the original complainant to

dismiss present application.

7. Having heard learned advocates appearing for respective

parties and learned APP, at length, and perused the

chargesheet papers produced on record by either side, it

appears that after completion of the investigation by the

concerned Investigating Officer, in connection with FIR being

C.R.No.11214032201643 of 2020 registered with Mandvi

Police Station, Dist.: Surat for the offence punishable under

Sections 306, 506(2), 386, 270, 271, 201, 120B and 114 of

the IPC, chargesheet was filed and Sessions Case No.01 of

2021 is pending. If we peruse the FIR, prima facie, it appears

that before entering into the picture by present applicant, on

18.02.2020, following facts were happened.

8. Son of the deceased received a call on 07.09.2020, at

around 04:30 a.m. in the morning, the complainant got a call

from his brother informing that the Manager i.e. Sandeepbhai

has informed that father has lost and therefore, the

complainant went to the quarry in his car and reached there

by 05:45 a.m. and the brother also reached. Thereafter, the

complainant and on searching the quarry along with the

Manager and other friends a torch, chappal and mobile of the

father were found from the entrance of the quarry in front of

the office. While searching the father of the complainant, the

Manager informed that at 03:45 a.m. in the morning, the

father of the complainant had called the Manager and

informed that when the complainant comes to the office, he

will give him the note which is kept in the diary of his father.

Therefore, the complainant asked that if the Manager had read

the note to which, he denied and handed over the note to the

complainant which was written by the father of the

complainant. It was written in the note that the father of the

complainant had a property of 10218 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 complainant 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, a tax raid was made on his premises and based on

the note of agreement to sell, there was a tax inquiry on the

complainant as well. As a result of the tax inquiry, all the truth

was told by the father of the complainant, however, accused

no.6 had hidden names of his partners and therefore, the

liability of paying tax of Rs.8,49,49,020/ was fixed by the

Income Tax Department on the head of the father of the

complainant and further, due to sale deed on the original

value, additional capital gain tax on Rs.4,80,00,000/ was also

fixed on the shoulder of the father of the complainant which

comes to Rs.13,00,00,000/ and father of the complainant had

talked to accused no.6 in respect of clearing liability fixed by

the Income Tax Department and accused no.6 had assured

him to pay the same. Thereafter, it appears that on

30.01.2019, accused no.6 had sent a legal notice against the

promise and statement given to income tax department to

which the father of the complainant had replied through his

advocate on 04.02.2019. Thereafter, on 02.01.2020, at around

78 p.m., some Police Officers came to the house of the

complainant and asked the father to come to Police Station as

Police Inspector (i.e. accused no.1) has called him

immediately, but it was refused by the father of the

complainant as it was late and informed that he will come

tomorrow. However, the police officials forced him to come to

Police Station, and therefore, the complainant 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 to speak badly with the father of the

complainant and by then accused no.4 viz. Bhavesh Shawani

came and forced to immediately give a notarized document in

relevance to the disputed land and took them to a notary viz.

Hitesh Kanji Solanki at 11:00 p.m. at night and they

threatened them to sign the said documents and the

complainant was forced to be the witness therein. Thereafter,

on 03.01.2020, they had made a notarized document of

declaration before the Notary viz. Bharat R. Chauhan.

However, as per the contents of the FIR, due to fear, it was not

produced anywhere and the partner of accused no.6 i.e.

accused no.5 had told the father of the complainant 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, which was denied by the

father of the complainant and on 04.02.2020, 4 to 5, police

officers had visited the house to call the father of the

complainant, but his wife had denied as the father was not

well and was asleep and on the knowledge of the same, the

brother of the complainant had sent an application to the S.P.,

against the same through whatsapp after which the police

officers had returned back. Upto this moment, applicant had

never come into picture in the alleged offence in any

transaction of the land nor was in contact with the deceased or

any other accused persons. For the first time, as per the

prosecution case, on 18.02.2020, accused nos.2, 3, 7 (i.e.

present applicant) and accused no.8 had visited the house of

the complainant with ready document of satakhat along with

possession and showed the signature and videography of the

father of the complainant and had told to prepare for sale

deed and given 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 was denied

by them as proper documentation was required in order to

avoid tax disputes and the prior documentation as to accused

no.3. Again on 30.07.2020, in Bhesna Gam in a farm house,

the dispute was arisen and accused no.1 was home

quarantined and had called the complainant by sending

whatsapp location and on reaching at the location, other

accused nos.2, 4, 9 and 10 were present and the complainant

and his brother were threatened and a notarized agreement of

even lesser value was made and sent to the house of the

complainant along with accused nos.2, 3, 4, 9 and other police

officials for signature of father of the complainant along with

authority to do paper publication. As per the complaint, the

said publication was done in paper on 01.08.2020. Thereafter,

due to less payment and improper documentation, the sale

deed was denied by the complainant and accused no.1 (P.I.)

had kept the documents with him informing that if he makes

the sale deed then only he will give back the papers.

Thereafter, the complainant 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 complainant 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. From the affidavit filed by the Investigating Officer, it

appears that present applicant was not in contact with the

deceased based on the call details record (CDR). As per the

CDR, the applicant had allegedly met the other accused

persons and the complainant lastly in the month of March

2020, and thereafter, he had not met with anyone of them.

The deceased committed suicide in the month of September

2020. It further appears that applicant is not named in the

suicide note written by the deceased. Prima facie, from the

contents of the FIR and in the chargesheet papers, it appears

that the dispute is pertaining to the land transaction and

income tax liability with which even as per the case of the

prosecution, present applicant has nothing to do with and

therefore, there cannot be motive or intention or reason on the

part of the applicant to participate in the alleged offence. If we

consider the case of the prosecution, the applicant was to

accompany other accused persons on 18.02.2020 and

agreement to sell was executed and cheques were replaced of

new purchaser. The said act of execution of agreement to sell

with possession can be said voluntary act on the part of the

deceased - father of the first informant with a condition only

after fulfillment of condition as mentioned in previous

agreement to sell and only after receipt of some bank

guarantee like papers for income tax liability, sale deed will be

executed. Accompanying coaccused at the residence of the

deceased, there was no dispute between deceasedfather of the

first informant and other accused persons. From the

chargesheet papers also, it appears that applicant had never

participated in the alleged act of threatening in the farm house

of accused no.1. From the FIR and chargesheet papers, prima

facie, no ingredients for the purpose of constituting alleged

offence punishable under Section 306 of the IPC is made out

against the applicant. For the purpose of alleged offence

punishable under Section 306 of the IPC, abatement as

defined under Section 107 of the IPC is must. Abatement has

to be in near proximity of the alleged act of the commission of

the suicide as well as it has to be so grave in nature due to

which deceased was not left with any other option, but to

commit suicide. From the chargesheet papers, it appears that

in the present offence, there is no such incident mentioned or

happened in fact in near proximity of time which can be

termed as abatement. Further, there is no act on the aprt of

the applicant which amounts to abatement, no abatement in

near proximity of the time so as to attract the alleged offence

as narrated in the chagesheet is found from the chargesheet

papers. For the purpose of constituting alleged offence

punishable under Section 306 of the IPC, there has to be a

clear mens rea to commit the offence and it also requires an

active act or direct act which would 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

would commit suicide. Abetment as defined under Section 107

of the IPC has to be satisfied for the purpose of constituting

alleged offence punishable under Section 306 of the IPC which

is not the case in this present matter. Ingredients of alleged

offence are not fulfilled against present applicant.

9. In the facts and circumstances of the case and

considering the nature of allegations made against the

applicant in the FIR, I am of the opinion that this is a fit case to

exercise the discretion and enlarge the applicant on regular

bail.

10. Hence, the present application is allowed and the

applicant is ordered to be released on regular bail in

connection with an FIR being C.R.No.11214032201643 of

2020 registered with Madvi Police Station, Dist.: Surat on

executing a personal bond of Rs.10,000/ (Rupees Ten

Thousand Only) with one surety of the like amount to the

satisfaction of the learned Trial Court and subject to the

conditions that the applicant 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 passport, if any, to the lower court within a week;

[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;

[e] furnish latest and permanent 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 learned Sessions Court concerned;

11. 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 Sessions Judge concerned will be free to issue warrant or

take appropriate action in the matter. Bail bond to be executed

before the learned Lower Court having jurisdiction to try the

case. 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 to the aforesaid extent.