Mukesh Padmakarbhai Kulkarni vs State Of Gujarat
2021 Latest Caselaw 4236 Guj

      R/CR.MA/270/2021                                CAV JUDGMENT




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 270 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE B.N. KARIA

==========================================================

1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2    To be referred to the Reporter or not ?                      NO

3    Whether their Lordships wish to see the fair copy            NO
     of the judgment ?
4    Whether this case involves a substantial question            NO

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

========================================================== MUKESH PADMAKARBHAI KULKARNI Versus STATE OF GUJARAT ========================================================== Appearance:

MR. JAYANT PANCHAL FOR MR APURVA R KAPADIA(5012) for the

MR. BHADRISH S RAJU(6676) for the Respondent(s) No. 1 MR. MANAN MEHTA, APP for the Respondent(s) No. 1 SHAISHAV S PANDIT(7363) for the Respondent(s) No. 1 ==========================================================

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, 8 (i.e. present applicant) and

accused no.7 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.J.M. Panchal, learned Advocate appearing for

Mr.A.R. Kapadia, learned advocate for the applicant,

Mr.Manan Mehta, learned APP for the respondent­State 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.8 in

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

journalist. 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. There is no

criminal antecedent against the applicant. It is further

submitted that there is no involvement of present applicant in

the alleged offence. 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 deceased­

father 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 co­accused, when there was no

dispute between deceased­father of the first informant and

present applicant 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 no 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

no charge of Arms Act was applied by the prosecution. That

the applicant is arrested on 27.09.2020, 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. It is

further argued that son of the deceased cannot expand the

story then the say of the deceased in his suicide note. There is

no remote allegation to involve the applicant in the offence.

Deceased himself had created such circumstances as he was

facing financial crises. That deceased had a libaility to pay tax

amount of more than Rs.13,00,00,000/­ (Thirteen Crores).

The notice was sent by accused no.6 to the deceased and reply

was given on 02.01.2020 by the deceased. That after one year,

rights of the land were transferred to accused no.2­ Rajubhai

Lakhabhai Bharwad. The deceased had accepted Rs.24 crores.

That no such deed of land was executed by the deceased even

after receiving tax amount as Rs.24 crores. That no such deed

of the land was executed by the deceased even without

receiving cash amount of Rs.24 Crores. That possession was

taken by accused no.2 - Rajubhai Lakhabhai Bharwad. Present

appilcant is not beneficiary of land nor he has received any

amount from the deceased. 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

respondent­State 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 respondent­State 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 co­

accused 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 signature in

satakhat by the applicant and other co­accused. Rreferring

affidavit executed by the 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. He has present when

deceased was called in 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 co­accused Vijay Shinde. 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 argued that

Mr.Badana, Police Inspector has no jurisdiction to investigate

the offence or to make any inquiry. That Mr. 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 agreement to sell was to be

executed and his presence was also secured in CCTV Footage

collected by the prosecution. That application preferred by

Rajubhai Bharvad­co­accused was withdrawn by him. That the

trial Court has rightly observed in detail while rejecting the

prayer for 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 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 office of the co­accused whereby the cheques

worth Rs.7,50,00,000/­ were received back and fresh cheques

of Rs.7,50,00,000/­ were issued 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.8 in the

FIR and accused no.4 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 was committed in commission of the offence

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 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, prior to time.

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

around 04:30 a.m. in the morning, 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 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/­. 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. On 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, 8 (i.e. present

applicant) and accused no.7 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 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/­. He was told to give paper notice

that the said land is not sold to anyone. The same was denied

by deceased 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 on account of COVID­19 and accused

no.1 was home quarantined and he called the complainant by

sending whatsapp location. On reaching at the location, other

accused nos.2, 4, 9 and 10 were present there. 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 news­paper on 01.08.2020.

Thereafter, due to less payment and improper documentation,

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

contentions of the FIR and 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, 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 was to be executed. Accompanying co­

accused 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 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.

This order be communicated to the applicant through Jail

Authorities by the registry as well as learned Sessions Court

concerned.

(B.N. KARIA, J) RAKESH