Gujarat High Court

Kirpalsinh Dilipsinh Jadeja vs State Of Gujarat on 9 February, 2022

Bench: B.N. Karia

     R/CR.A/406/2021                                    ORDER DATED: 09/02/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 406 of 2021

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                         KIRPALSINH DILIPSINH JADEJA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR NISHITH P THAKKAR(2836) for the Appellant(s) No. 1
KAUSHAL S JANI(7627) for the Opponent(s)/Respondent(s) No. 2
MR. HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                                  Date : 09/02/2022

                                   ORAL ORDER

1. The appellant preferred one Criminal Misc. Application No.

4036 of 2020 before the Court of learned Additional Sessions Judge,

City Civil & Sessions Court, Ahmedabad u/s. 439 of the Code of

Criminal Procedure, 1973 requesting to enlarge the appellant on

regular bail on account of offence being registered vide C.R.

No.11191066200170 of 2020 with Vasna Police Station,

Ahmedabad for the offence punishable u/s. 306, 384, 507 and 120-B

of the Indian Penal Code and u/s. 3(2)(5) of the Scheduled Caste and

Scheduled Tribe (Prevention of Atrocity) Act, 2015 (for short "the

Atrocities Act") as well as under Sections 67 and 67-A of the

Information Technology Act, 2000 wherein, the learned Additional

Sessions Judge, City Civil & Sessions Court, Ahmedabad rejected

R/CR.A/406/2021 ORDER DATED: 09/02/2022

the said application on 10.08.2020

2. Feeling aggrieved by the said order, the appellant preferred

present appeal u/s 14A of the Atrocities Act.

3. Heard learned advocate for the appellant, learned advocate

appearing for the respondent No.2 and learned APP for the

respondent-State.

4. Learned advocate for the appellant has submitted that from the

contents of FIR, no offence is made out against the present appellant.

That allegations are general and vague in nature and there is no

possibility of success in the trial. That story of the prosecution is

doubtful as the complainant has not produced evidence and details of

so called details of information but narrated superficial stereo type

and general version in the FIR. That story of the prosecution is

doubtful as the test identification parade is not conducted and

therefore, there is no live line connecting the accused with the

commission of crime. It is further submitted that entire investigation

is carried out in one sided manner and the same is directed by the

complainant in a particular direction. That charge-sheet is filed and

investigation is over. It is further submitted that co-accused person

of the offence namely Dharmendrasinh Jilubhai Jhala has been

R/CR.A/406/2021 ORDER DATED: 09/02/2022

released on bail by this Court (Coram: Hon'ble Mr. Justice S.H.

Vora) in Criminal Appeal No.892 of 2020 vide order dated

01.03.2021. Hence, it was requested by learned advocate for the

appellant to quash and set aside the impugned judgment and order

passed by learned Additional Sessions Judge, City Civil & Sessions

Court, Ahmedabad and release the appellant on bail.

5. Learned advocate appearing for the respondent No.2 and

learned APP for the respondent-State have strongly objected the

arguments advanced by learned advocate for the appellant and

submitted that there is a prima facie strong case against the appellant

as the appellant availed nude pictures of the victim alongwith

Dr.Hemang Doshi with whom victim has extra marital affair and

thereafter, said photograph and video clips were to be used by the

present appellant to blackmail the victim with a view to extort the

huge amount from her. That the said conduct and activity of the

appellant, ultimately laid to instigate the victim to commit the

suicide. It is further submitted that there was some conversation

between the appellant and victim which clearly reveals that to

recover the amount, pressure was created by the present appellant by

way of blackmailing and sending nude pictures of the victim, the

R/CR.A/406/2021 ORDER DATED: 09/02/2022

complainant came to know about illicit relation with the victim with

Dr. Hemang Doshi. Taking into consideration the manner in which

the appellant was blackmailing the victim and used of obscene

images as well as demanding huge amount from the victim, it is

submitted that victim has committed suicide by ending her life. That

prima facie involvement of the present appellant is clearly

established by the prosecution. Hence, it was requested by learned

APP for the respondent-State as well as complainant -respondent

No.2 to dismiss the present appeal.

6. Having considered the facts of the case, submissions made by

learned advocates for the respective parties as well as learned APP

for the respondent-State and papers produced on record, it appears

that impugned FIR was registered on 05.03.2020 wherein appellant

was arrested on 09.03.2020. It appears that Investigating Agency has

completed investigation and charge-sheet is filed against the accused

persons. As per the allegations made in the complaint, from mobile

no.8758838627, a person demanded huge amount with a threat to

viral the photographs in social media in connection with the relations

of the victim with Dr. Hemang Doshi. It further appears from the

statement of Ms. Umaba recorded on 22.04.2020, she was sim card

R/CR.A/406/2021 ORDER DATED: 09/02/2022

holder of mobile No. 8758838627. It also appears that complaint

was lodged by the complainant against Shripalsinh Jhala holder of

Mobile No. 8758838627. It also appears that co-accused person of

this offence namely Dharmendrasinh Jilubhai Jhala has been

released on bail by this Court (Coram: Hon'ble Mr. Justice S.H.

Vora) in Criminal Appeal No.892 of 2020 vide order dated

01.03.2021. This Court is in the aforesaid appeal has observed that

sim card used in the impugned offence belogns to one Ms. Umaba as

per her statement recorded on 22.04.2020. No any recovery or

discovery is affected either mobile or sim card from the present

appellant of Criminal Appeal No.892 of 2020. In the instant case

also no sim card of mobile No. 8758838627 was recovered in the

present offence from the custody of the present appellant.

7. In order to attract a person under Section 306 of I.P.C., there

has to be a clear mens rea to commit the offence. It also requires any

active act or direct act which laid the deceased to commit suicide

seeing no option and this act must have been intended to push the

deceased into such a position that she committed suicide.

8. From the record, prima facie, it appears that prosecution has

failed to attract ingredients of abetment, intention of the accused to

R/CR.A/406/2021 ORDER DATED: 09/02/2022

aid or instigate or abet the deceased to commit suicide. In absence of

the aforesaid ingredients to attract the provisions of Section 306 of

I.P.C. and considering the fact that co-accused namely

Dharmendrasinh Jilubhai Jhala has been released on bail by this

Court in Criminal Appeal No.892 of 2020, this Court is of the

considered opinion that this is a fit case to exercise the discretion in

favour of present appellant by enlarging him on regular bail and

hence, the prayer sought for by the present appellant requires

consideration. Hence, this Court is of the view that present appeal

deserves consideration.

9. In the result, present Criminal Appeal is allowed and the

impugned judgment and order dated 10.08.2020 passed by learned

Additional Sessions Judge, City Civil & Sessions Court, Ahmedabad

in Criminal Misc. Application No. 4036 of 2020 is hereby quashed

and set aside. The appellant is ordered to be enlarged on regular bail

on furnishing a bond of Rs. 10,000/- with one surety of like amount

to the satisfaction of the trial Court and subject to the conditions that

appellant shall;

[a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution;

R/CR.A/406/2021 ORDER DATED: 09/02/2022

[c] surrender passport, if any, to the lower court within a week;

[d] not leave India without prior permission of the concerned Trial Court;

[e] furnish the present 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 this Court;

10. The authorities will release the appellant 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 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.

11. At the trial, the Trial Court shall not be influenced by the

prima facie observations made by this Court in the present order.

Notice is discharged.

12. This order be communicated to the applicant through Jail