Bhavesh Karamshibhai Savani vs The State Of Gujarat
2021 Latest Caselaw 5341 Guj

       R/CR.MA/412/2021                                   JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL MISC.APPLICATION NO. 412 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.G.URAIZEE

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

2    To be referred to the Reporter or not ?
                                                                    No
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            No
     of India or any order made thereunder ?

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                     BHAVESH KARAMSHIBHAI SAVANI
                                Versus
                        THE STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1
MR. BHADRISH S RAJU(6676) for the Respondent(s) No. 1
MR RONAK RAVAL APP (2) for the Respondent(s) No. 1
SHAISHAV S PANDIT(7363) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE A.G.URAIZEE

                            Date : 05/05/2021

                           ORAL JUDGMENT

1. The present application under section 439 of the Code of Criminal Procedure, 1973 ("the Code" for short) is preferred by the applicant for being enlarged on bail in connection with an FIR being C.R. No.I-

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11214032201643 of 2020 registered with Mandvi Police Station, District Surat for the offence punishable under sections 306, 506(2), 386, 270, 271, 201, 120(B) and 114 of the Indian Penal Code.

2. The facts as could be gathered from the impugned FIR and connected material can be summed up as under:-

2.1 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 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

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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.

2.2 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 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 7-8 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 (A-1) 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

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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.

2.3 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 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, 4 - 5, 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.

2.4 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

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proper documentation was required in order to avoid tax disputes. Therefore, 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 accused-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, 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.

3. Heard Mr. B.M. Mangukiya, learned advocate for the applicant, Mr. Ronak Raval, learned APP for State and Mr. Bhadrish Raju, learned advocate for defacto complainant.

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4. Mr. Mangukiya submits that investigation is over and chargesheet is filed. It is his submission that in the suicide note left behind by deceased Durlabhbhai Patel, six persons are named and the applicant happens to be one of them. He further submits that Kishorebhai Bhurabhai Kosiya (A-6) has preferred an application under section 482 of the Code for quashing of the petition being Criminal Misc. Application No.14267 of 2020 wherein by order dated 5.10.2020 he is protected. It is his further submission that Kanaiyalal Narola (A-5) is also protected by this court vide order dated 6.11.2020 passed in Special Criminal Application No.5938 of 2020 under section 482 of the Code. He would also submit that Vijay Baburao Shinde (A-7) and Mukesh Padmakaranbhai Kulkarni (A-8) are also released on regular bail by this court by judgment dated 16.3.2021 passed in Criminal Misc. Application No.802 of 2021 and Criminal Misc. Application No.270 of 2021 respectively. He further submits that PI Laxmansinh Bodana (A-1) is released on bail by a coordinate bench by order dated 28.4.2021 passed in Criminal Misc. Application No.3469 of 2021.

4.1 He would also submit that as per the allegations in the FIR, the last meeting between the deceased, the original informant, accused No.1, accused No.2, the present applicant, accused No.9 and accused No.10 had taken place on 30.7.2020 in a farmhouse. The deceased thereafter committed suicide on 6.9.2020 i.e. after 38 days. He, therefore, submits that there is no proximate cause between the alleged threats or coercion meted out to the deceased by the applicant and the other co-accused persons and the act of commission of suicide by the deceased. He submits that for commission of offence under section 306 of IPC, ingredients of section 107 IPC are required to be satisfied. According to his submission, holistic reading of the FIR prima facie does not satisfy the ingredients of section 107 IPC to constitute an offence under section 306 of IPC by the applicant. It is his submission that one of the important ingredients to

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constitute offence of abetment is mens rea which is absent in this case. He submits that there was no goading or provoking by the applicant to drive the deceased to commit suicide. He submits that accused No.1 PI Laxmansinh Bodana and other co-accused persons are released on regular bail or are protected in the proceedings under section 482 of the Code, the applicant also deserves to be enlarged on bail on the ground of parity.

4.2 In support of his submissions, he has relied on the following decisions:-

1. S.S. Chheena v. Vijaykumar Mahajan & Anr. reported in (2010) 12 SCC 190

2. Sanju alias Sanjaysingh Sengar v. State of M.P. reported in (2002) 5 SCC 371

3. A.K. Chaudhary v. State of Gujarat reported in (2005) 3 GLH 444.

5. Mr. Bhadrish Raju, learned advocate for the defacto complainant has vehemently opposed this bail application. He submits that the applicant has suppressed the fact that co-accused Raju Lakha Bharwad (A-2) has preferred Criminal Misc. Application No.2029 of 2021 for being enlarged on bail after filing of the chargesheet, which is withdrawn by him. It is his submission that the cases of co-accused Vijay Shinde (A-

7) and Mukesh Kulkarni (A-8), stand on different footing as they are not named in the suicide note and, therefore, the applicant cannot claim parity with them. It is his submission that the present applicant and the other co- accused persons had created such an environment that there was no room for the deceased not to commit suicide. He, therefore, submits that the applicant may not be enlarged on bail.

6. Mr. Ronak Raval, learned APP has in addition to adopting the submissions of Mr. Raju, submitted that the case of the applicant stands

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on the same footing as the case of Raju Lakha Bharwad (A-2) whose bail application is withdrawn after extensive arguments. Moreover, he submits that the applicant cannot claim parity with PI Laxmansinh Bodana (A-1) as it can be said that he had exceeded his duty. He, therefore submits that the present application may be rejected.

7. The undisputed facts which can be culled out from the FIR and connected material are that the deceased and Kishorebhai Bhurabhai Koshiya (A-6) had entered into an agreement to sell dated 17.3.2014. The area of the land was 10218 sq. meters and it was agreed to be sold at a consideration of Rs.24,03,88,687/-. The present applicant is referred to as the partner of Kishorebhai Bhurabhai Koshiya (A-6) and the applicant and Kanaiyalal Narola (A-5) had paid a sum of Rs.18,00,00,000/- in cash to the deceased and Rs.3,09,30,584/- by cheques drawn on different banks.

8. There was an income-tax inquiry on the premises of Kishorebhai Bhurabhai Koshiya (A-6) on 17.8.2016. There was in income-tax inquiry in respect of agreement to sell between the deceased and Kishorebhai Bhurabhai Koshiya (A-6) at the place of the deceased. Upon the information provided by the deceased to the income-tax officials in respect of the agreement to sell between him and Kishorebhai Bhurabhai Koshiya (A-6) a total income-tax liability of Rs.13,00,00,000/- was fastened on the deceased. The deceased had approached Kishorebhai Bhurabhai Koshiya (A-6) in connection with the said income-tax liability and he was assured by Kishorebhai Bhurabhai Koshiya (A-6) that he would make good the liability.

9. As per the allegations in the FIR, Kishorebhai Bhurabhai Koshiya (A-6) did not honour his promise of making good the income-tax liability of Rs.13,00,00,000/- fastened on the deceased which ensued the

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subsequent events between the deceased and the accused persons. There was police complaint in respect of the agreement to sell entered into between the deceased and the Kishorebhai Bhurabhai Koshiya (A-6). The defacto complainant and the deceased were summoned to the police station in connection with the police complaint.

10. In the backdrop of the aforesaid undisputed facts, it prima facie appears that the deceased was summoned to the police station and lastly at the farmhouse on 30.7.2020 by PI Laxmansinh Bodana (A-1). At the farmhouse, the applicant amongst others were present and it is alleged that the pressure was exerted on the deceased and the defacto complainant in respect of the dispute relating to the land sold to Kishorebhai Bhurabhai Koshiya (A-6). As a consequence of the unbearable pressure, the deceased committed suicide on 6.9.2020.

11. The moot question that is involved in this application is whether the applicant can be said to have intentionally meted out alleged harassment to the deceased as a result the deceased had no option but to end his life.

12. It is trite that abetment is a mental process of instigating a person or intentionally aiding a person in doing of a thing. To constitute an offence of abetment, mens rea is a condition precedent. To put it in other words, there has to be a prima facie evidence to indicate that the accused person had intentionally with full knowledge of consequence of his act aided or induced a person to do or not to do a particular thing. Hence, without a positive act on the part of the accused to instigate or aid in committing suicide, the necessary requirement of section 107 cannot be said to have been fulfilled. As a consequence, a person cannot be held responsible for offence under section 306 of IPC. Moreover, there has to be nexus between the act of instigation and the ensuing suicide

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committed by the victim.

13. In the present case, undisputedly the last meeting had taken place on 30.7.2020 at a farmhouse between the applicant, the deceased and the original complainant amongst others and thereafter, the deceased had committed suicide after 38 days on 6.9.2020. Even in the suicide note, it is stated that there is a monetary dispute in respect of the land which was sold by the deceased.

14. It also prima facie appears from the FIR and connected material that neither any meeting took place between the deceased and the applicant and other accused persons nor the deceased was summoned by the police after 30.6.2020 till the deceased committed suicide. It thus prima facie appears that there was no proximate cause for the deceased to commit suicide after 38 days of the last meeting on 30.7.2020.

15. The coordinate Benches of this court in Criminal Misc. Application No.270 of 2021, Criminal Misc. Application No.802 of 2021 and Criminal Misc. Application No.3469 of 2021 have considered the aspect of abetment in detail and have prima facie found that there was no proximate cause between the alleged threats held out to the deceased and the act of committing suicide. It is also found prima facie that the dispute is pertaining to the land transaction and income-tax liability.

16. I do not deem it expedient to burden this judgment with the discussion of the authorities relied upon by Mr. Mangukiya, learned advocate for the applicant and Mr. Bhadrish Raju, learned advocate for the defacto complainant as the ratio expounded in these authorities is well-known.

17. In view of the above, having perused the FIR and connected

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material and having taken into consideration the facts of the case, nature of allegations and the evidence against the applicant, without discussing evidence in detail, at this stage, I am of the view that the present one is a fit case to exercise discretion vested in this court under section 439 of the Code in favour of the applicant.

18. 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.I-11214032201643 of 2020 registered with 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 every Monday of each English calendar month for initial six months and thereafter, on alternate Monday 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;

19. 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

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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 executed before the trial Court having jurisdiction to try the case.

20. 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.

21. 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.

22. 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.

(A.G.URAIZEE, J) Z.G. SHAIKH