Gujarat High Court
Devendra @ Devubhai Maganbhai ... vs State Of Gujarat on 9 August, 2023
Bench: Sandeep N. Bhatt
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 25062 of 2017
With
R/CRIMINAL MISC.APPLICATION NO. 25758 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
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 ?
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DEVENDRA @ DEVUBHAI MAGANBHAI VAVIYA & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR PRAVIN GONDALIYA(1974) for the Applicant(s) No. 1,2
MR. DHRUVIN U MEHTA(9993) for the Respondent(s) No. 2
MR. SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 09/08/2023
COMMON ORAL JUDGMENT
1. Since the issues involved in the present applications
are identical in nature, Criminal Misc. Application
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No.25062 of 2017 is considered as leading matter.
2. The present application is filed for seeking following
main reliefs:-
"(A) admit this Criminal Misc. Application;
(B) allow this Criminal Misc. Application by quashing
and setting aside the impugned FIR being I CR No.
123/2017 registered with Palsana Police Station, Surat
and further be pleased to quash all the further
proceedings arising out the same in the interest of
justice;
(C) pending admission and till final disposal of this
application, grant stay of further
investigation/proceeding of 1 CR No.123/2017 registered
with Palsana Police Station, Surat in the interest of
justice;
(D) grant such other and further relief/s as may be
deemed fit, just and proper, in the facts and
circumstances of the case."
3. Brief facts as per the case of the applicant in this
application, i.e., Criminal Misc. Application No.25062 of
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2017 are as such that the on 17.8.2017, the husband of
complainant - Kamleshbhai Bhesaniya consumed poison
at his construction site and was admitted in the
hospital. The husband of the complainant passed away
on 3.9.2017 in the hospital. It is further the case of the
applicants in this application that the complainant filed
an FIR before Palsana Police Station for the offence
punishable under Sections 306 and 114 of IPC against
the applicants and others alleging that her husband
committed suicide due to pressure of the accused as he
borrowed the amount on interest from the accused
persons and there was pressure upon him. The same is
registered as C.R. No. I 123 of 2017. Hence the present
applications are preferred.
4. Heard learned senior advocate Mr. I.H. Syed
assisted by Mr. Pravin Gondaliya, learned advocate for
the applicants in Criminal Misc. Application No.25062 of
2017 and Mr. Chirag Parikh, learned advocate for the
applicants in Criminal Misc. Application No.25758 of
2017, Mr. Dhruvin U. Mehta, learned advocate for the
respondent No.2 - complainant as well as Mr. Soaham
Joshi, learned Additional Public Prosecutor (APP) for the
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respondent No.1 - State of Gujarat.
5.1 Learned senior advocate Mr. I.H. Syed, assisted by
Mr. Pravin Gondaliya, learned advocate for the applicants
in Criminal Misc. Application No.25062 of 2017, has
emphasized the averments made in the impugned F.I.R.,
which has been filed under Sections 306 and 114 of the
Indian Penal Code, Mr. Syed highlighted that the F.I.R.
was lodged on 4.10.2017, indicating a delay of one and a
half months from the occurrence of the offense, which
took place prior to 17.8.2017.
5.2 He pointed out that the F.I.R. lacks necessary
averments concerning instigation or abetment, which are
essential under Sections 107 and 306 of the Indian Penal
Code. Additionally, he underscored the absence of any
indication in the F.I.R. that establishes a direct link
between the acts of the present applicants and the
alleged suicide, which would meet the requirements of
such charges. Therefore, there is no proximity with the
incident occurred and the allegations made against the
present applicants regarding such duress or harassment.
5.3 Mr. Syed further contended that the dispute at
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hand is essentially of a civil nature, whereby at the best
from the bare reading of F.I.R., it can be construed that
some amount is borrowed by the husband of the
complainant and he could not repay the stated amount.
Therefore, on making demand for return of such money,
the husband of the complainant has committed suicide
that is sum and substance of the allegation made in the
F.I.R.
5.4 Moreover, he has asserted that even considering the
above, incident was occurred much prior to 17.8.2017 and
as per the say of the complainant, her husband was
remained under the stress since long due to such
demands made by the applicants and other individuals
regarding the amount. Furthermore, he has submitted
that merely finding any suicide note and video clip are
prima facie not sufficient to establish that the offence as
alleged in the F.I.R. is made out against the applicants.
5.6 Furthermore, he has submitted that Hon'ble Apex
Court has time and again taken note of the mental
status of such person, who commits suicide, and has also
considered the case of the individuals against whom the
accused person were made regarding the recovery of
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money, which is lent to the deceased person leading to
suicide due to insistence of recovery of such amount.
5.7 Furthermore, he has submitted that in view of the
judgment of the Hon'ble Apex Court in the cases of (i)
Jitul Jentilal Kotecha vs State of Gujarat and Others
reported in 2021 SCC Online SC 1045, (ii) State of
Kerala and Ors vs S. Unnikrishnan Nair and Ors.
reported in (2015) 9 SCC 639, more specifically,
paragraphs 18 is relevant. By relying on the observations
made by the Hon'ble Apex Court that suicide reflects
"species of fear", (iii) Gangula Mohan Reddy vs State Of
A.P reported in (2010) 1 SCC 750, more specifically,
paragraph 10 is relevant, and (iv) Madan Mohan Singh
vs State Of Gujarat & Anr. reported in 2010 3 GLH
270, more specifically, paragraphs 8, 10 and 11 are
relevant.
5.8 He has also relied on the judgment of Co-ordinate
Bench of this Court in the case of Vallabhbjhai
Vaghjibhai Vaghasiya versus State of Gujarat & Others
rendered in Criminal Misc. Application No.11957 of 2015
dated 5.5.2017, more specifically, paragraphs 8 and 11
are relevant.
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5.9 Additionally, he stressed that there was no existing
debt of the deceased towards the present applicants at
the time of the incident, as the applicants were merely
making demands regarding an already available amount.
Thus, he contended that the applicants have been falsely
implicated in the incident, leading to a belated filing of
the F.I.R. Therefore, he prays to exercise its inherent
jurisdiction under Section 482 of the Criminal Procedure
Code in view of the judgment of the Hon'ble Supreme
Court in the case of State of Haryana V/s Bhajan Lal
reported in AIR 1992 SC 604, and the impugned F.I.R.
is required to be quashed, which would amount to abuse
of process of law.
6. Mr. Chirag Parikh, learned advocate for the
applicants in Criminal Misc. Application No.25758 of
2017 has also adopted the contentions raised by the
learned senior advocate for the applicants and has
further submitted that in view of the subsequent
development as actually the complainant has no
grievance against the present applicants, and his case
cannot be considered differently by considering the fact
that there is no grievance survives qua the present
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applicants. Therefore, he prays to allow the Criminal
Misc. Application No.25758 of 2017.
7.1 On the contrary, Mr. Dhruvin U. Mehta, learned
advocate for the respondent No.2 - complainant and Mr.
Soaham Joshi, learned Additional Public Prosecutor (APP)
have raised almost identical contentions by opposing the
contentions of the applicants and prayers made in the
present applications. They have submitted that on bare
reading of the F.I.R., prima facie, the offence is made
out against the applicants. Further, they have submitted
the if we peruse the contends of the F.I.R., it is clear
that the complainant has given specific explanation that
why she has filed complaint after a delay of one and a
half months, and more specifically, when there is suicide
note of the deceased and also, some call recording by
way of video recording available on the record. The
recording has been submitted for verification to the
Forensic Science Laboratory (F.S.L.), that the suicide note
was executed by the deceased. Additionally, the video
recording has been affirmed as valid, and the evidence
appears to be genuine based on the prima facie opinion
of the F.S.L.
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7.2 Therefore, considering the averment made in the
complaint, the ingredients under Section 306 of the
Indian Penal Code are clearly established as there is
continuous harassment to the deceased by the applicants
and other alleged individuals. They have also submitted
that considering the fact that they are asking for
amount of huge interest, though the deceased has paid
entire amount received from various persons, this is
nothing but highhandedness of the accused persons,
which led to committing suicide of the deceased. They
have also pointed out that the judgments cited at the
bar by the learned advocate for the applicants are not
helpful to the case of the present applicants.
7.3 Moreover, they have submitted that in view of
recent judgment of the Hon'ble Apex Court in the cases
of (i) Mahendra K.C. versus State of Karnataka and Anr.
reported in (2022) 2 SCC 129, and (ii) Praveen Pradhan
versus State Of Uttranchal & Anr. reported in (2012) 9
SCC 734, let the applicants face the trial before the
concerned trial court by dismissing this application as no
case is made out to exercise the powers under Section
482 of the Criminal Procedure Code as there is sufficient
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material, which connects the accused in the offence and
merely dispute is settled with some of the accused
between the complainant, itself is not a good ground for
exercising the powers under Section 482, more
specifically, when the case is made out on bare reading
of the F.I.R. in view of the judgment of the Hon'ble
Apex Court in the case of Neeharika Infrastructure Pvt.
Ltd. versus State of Maharashtra and Others reported in
2021 SCC OnLine SC 315, and more particularly para
80 is relevant.
8.1 I have heard the learned advocates representing the
respective parties. I have considered the submissions
made at the bar by the respective parties. It is an
unfortunate incident that the husband of the complainant
has lost his life by committing the suicide by ingesting
poison due to pressure of the accused individuals as he
has borrowed the money from them on interest-based
arrangement.
8.2 The complaint reveals that the complainant's
husband consumed poison on 17.8.2017 at his
construction site and passed away on 3.9.2017. The
existence of a suicide note in the form of a chit, written
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by the complainant's husband, has also come to light. In
this note, he listed the names of individuals whose
harassment compelled him to commit suicide. The records
also indicate that the complainant reached a compromise
with some of the accused while the applicant's case was
pending. Through this compromise, the complaints against
some other accused have been quashed.
8.3 However, considering the facts of the present case,
it is established that there exists a suicide note, which
was composed by the deceased. This fact is evident from
the documents submitted on record, along with the
attached applications. As per the statement provided by
the complainant on 4.10.2017, it is disclosed that the
deceased--complainant's husband was involved in both
construction and land dealings. Furthermore, it is also
revealed that deceased was also doing business in the
name Radhika Builders with the partnership of one
Bhavesh Pkirdhar, Ramesh Gordhanbhai Kathiriya, Ashok
Narsinhbhai Bhangadiya. Starting from July 2017, the
complainant observed that whenever her husband
returned home, he exhibited signs of mental distress.
Upon inquiring, she discovered that individuals including
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Devubhai Maganbhai Vaviya, Maganbhai Vaviya,
Nimeshbhai Sakariya, Bipinbhai Karamdia, Tarangbhai
Kathiriya, and his father Devshibhai Kathiriya had
provided financial assistance to her husband--
Kamleshbhai. While the deceased had already repaid the
entire principal amount along with accumulated interest
to the concerned individuals, these individuals were
persistently demanding money. Notably, they employed
threats and even requested additional funds along with
additional interest. Subsequently, on 17.8.2017, she
became aware that her husband had consumed poison.
Consequently, during the course of his treatment, her
husband--Kampleshbhai passed away on 3.9.2017.
Following the unfortunate demise of her husband, while
searching through his personal belongings, she discovered
a suicide note in the deceased's wallet. The note, dated
17.8.2017, outlined the reasons behind his decision to
commit suicide. He mentioned that the individuals named
in the suicide note had been subjecting him to
harassment through threats and continued demands for
additional money, despite him having already repaid the
owed amount along with accrued interest. Furthermore,
she found a video clip on the deceased's mobile phone.
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The CD containing this video clip has also been
submitted to the concerned Police Authority for necessary
verification.
8.4 Taking into account the aforementioned details and
considering the fact that the allegations are very specific
that include the names of the present applicants in
Cr.M.A. No. 25062 of 2017--specifically, Devendra alias
Devubhai Maganbhai Vaviya, and Maganbhai Nanjibhai
Vaviya as well as in Cr.M.A. 25758 of 2017, wherein the
names of the accused are Tarangbhai Devshibhai
Kathiriya and Devshibhai Bhavanbhai Kathiriya, these
names are also explicitly mentioned within the
aforementioned suicide note.
8.5 The Investigating Officer was directed to produce
the current status of investigation. Today, when the
matter is taken for hearing, learned APP has drawn
attention of this Court towards the factum that the draft
charge-sheet is ready and investigation has been
concluded. it is evident that all the individuals accused
in the complaint, including the applicants of this
application, have been listed as accused in the mentioned
said draft charge-sheet.
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8.6 In this background, now considering the submissions
made at the bar, more particularly, learned advocate for
the applicants that prima facie there is no proximity of
the incident occurred on 17.8.2017 and as per the
statement given by complainant - Amitaben, the
deceased was feeling stressed from July 2017 onwards,
hence, it cannot be said that there is some proximity.
Even if we assume, for the sake of argument, that
certain threats were issued, the proximity between the
unfortunate occurrence on 17.8.2017 and the alleged
threats made by the accused is lacking.
8.7 This factor itself is required to be considered as
continuous harassment for the simple reason that first
time the complainant came to know about such
harassment. That itself is not sufficient to say that the
giving threats were not continued. Whatever were
disclosed in the F.I.R. is disclosed by way of whatever
information complainant was having at the time of the
lodging of F.I.R. During the course of investigation, the
concerned Investigating Officer has also recorded the
statement of various witnesses and has also recovered
necessary documents and Muddamals. Based on the
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report obtained from the Forensic Science Laboratory
(F.S.L.), it is prima facie evident that the suicide note
was composed by the deceased himself, as indicated by
his handwriting. Furthermore, the F.S.L. examination of
the video clip, which also underwent scrutiny, confirmed
its authenticity and confirmed that it had not been
altered in any way.
8.8 Therefore, prima facie, on the basis of suicide note
itself, the names, given by the deceased due to which he
was compelled to commit suicide, was present applicants
and other accused individuals. There is no dispute
regarding the judgment cited at the bar by the learned
senior advocate Mr. Syed in support of his submission
and this Court is of the opinion that the same is
binding to this Court also but while considering the facts
of the present case, it become apparent that the
judgments, which are cited by the respondents are
squarely applicable to the facts of the present case.
From bare reading of the complaint and material
available with the complaint viz., suicide note and video
clip, prima facie, the ingredients of instigation and
abetment as required under Sections 306 and 107 are
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made out in the present case.
8.8.1 It is fruitful to refer the provisions of Sections
306, and 107 of the Indian Penal Code, as under:
"Section 306 in The Indian Penal Code:-
306. Abetment of suicide.--If any person commits
suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either
description for a term which may extend to ten years,
and shall also be liable to fine.
Section 107 in The Indian Penal Code:-
107. Abetment of a thing.--A person abets the doing of
a thing, who--
(First) -- Instigates any person to do that thing; or
(Secondly) --Engages with one or more other person or
persons in any conspiracy for the doing of that thing,
if an act or illegal omission takes place in pursuance
of that conspiracy, and in order to the doing of that
thing; or
(Thirdly) -- Intentionally aids, by any act or illegal
omission, the doing of that thing. Explanation 1.--A
person who, by wilful misrepresentation, or by wilful
concealment of a material fact which he is bound to
disclose, voluntarily causes or procures, or attempts to
cause or procure, a thing to be done, is said to
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instigate the doing of that thing. Illustration A, a
public officer, is authorized by a warrant from a Court
of Justice to apprehend Z. B, knowing that fact and
also that C is not Z, wilfully represents to A that C is
Z, and thereby intentionally causes A to apprehend C.
Here B abets by instigation the apprehension of C.
Explanation 2.--Whoever, either prior to or at the time
of the commission of an act, does anything in order to
facilitate the commission of that act, and thereby
facilitate the commission thereof, is said to aid the
doing of that act."
8.8.2 It is fruitful to refer the judgment of the
Hon'ble Apex Court cited by the learned senior advocate
Mr. Syed, in the case of Mahendra K.C. (supra), more
specifically, paragraphs 22, 23, 27 to 29, 32, and 33 as
under:
"22 Based on the above precedent, the High Court
while exercising its power under Section 482 of the
CrPC to quash the FIR instituted against the second
respondent-accused should have applied the following
two tests: i) whether the allegations made in the
complaint, prima facie constitute an offence; and ii)
whether the allegations are so improbable that a
prudent man would not arrive at the conclusion that
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there is sufficient ground to proceed with the
complaint. Before proceeding further, it is imperative to
briefly discuss the law on the abetment of suicide to
determine if a prima facie case under Section 306 of
the IPC has been made against the respondent-accused.
23. Section 306 of the IPC provides for punishment of
the abetment of suicide:
"306. Abetment of suicide--If any person commits
suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either
description for a term which may extend to ten years,
and shall also be liable to fine." Section 107 of the
IPC defines the expression "abetment":
"107. Abetment of a thing- A person abets the doing of
a thing, who-- First.--Instigates any person to do that
thing; or (2019) 19 SCC 87 Secondly.--Engages with
one or more other person or persons in any conspiracy
for the doing of that thing, if an act or illegal
omission lakes place in pursuance of that conspiracy,
and in order to the doing of that thing; or Thirdly.--
Intentionally aids, by any act or illegal omission, the
doing of that thing.
27. While adjudicating on an application under
Section 482 CrPC, the High Court in the present case
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travelled far away from the parameters for the exercise
of the jurisdiction. Essentially, the task before the High
Court was to determine whether the allegations made
in the first information report or the complaint, even if
they are taken at their face value and accepted in
their entirety did or did not prima facie constitute an
offence or make out a case against the accused.
28. Instead of applying this settled principle, the
High Court has proceeded to analyze from its own
perspective the veracity of the allegations. It must be
emphasized that this is not a case where the High
Court has arrived at a conclusion that the allegations
in the FIR or the complaint are so absurd and
inherently improbable on the basis of which no prudent
person could ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
Nor is this a case where the criminal proceeding is
manifestly mala fide or has been instituted with an
ulterior motive of taking vengeance on the accused. On
the contrary, the specific allegations in the FIR and in
the complaint find due reflection in the suicide note
and establish a prima facie case for abetment of
suicide within the meaning of Sections 306 and 107 of
the IPC. The entire judgment of the High Court
consists of a litany of surmises and conjectures and
such an exercise is beyond the domain of proceeding
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under section 482 of the CrPC. The High Court has
proceeded to scrutinize what has been disclosed during
the investigation, ignoring that the investigation had
been stayed by an interim order of the High Court,
during the pendency of the proceedings under section
482.
29. The High Court observed that a prima facie case
for the commission of offence under Section 306 of the
IPC is not made out since: i) the suicide note does not
describe the specific threats; ii) details of the alleged
demand of Rs. 8 lacs from the deceased by the
respondent-accused are not set out in the suicide note;
and iii) no material to corroborate the allegations
detailed in the suicide note has been unearthed by the
investigating agency. The High Court observed that
since the deceased took considerable time to write a
twelve page suicide note, "it would have been but
natural for the author to set out the details". The
High Court has evidently travelled far beyond the
limits of its inherent power under Section 482 CrPC
since instead of determining whether on a perusal of
the complaint, a prima facie case is made out, it has
analysed the sufficiency of the evidence with reference
to the suicide note and has commented upon and made
strong observations on the suicide note itself."
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8.8.3 It is fruitful to refer the judgment of the
Hon'ble Apex Court in the case of Praveen Pradhan
(supra), more specifically, paragraphs 16 to 19 are
relevant, as under:
"16. This Court in Ramesh Kumar v. State of
Chhattisgarh, AIR 2001 SC 3837, while dealing with a
similar situation observed that what constitutes
'instigation' must necessarily and specifically be
suggestive of the consequences. A reasonable certainty
to incite the consequences must be capable of being
spelt out. More so, a continued course of conduct is to
create such circumstances that the deceased was left
with no other option but to commit suicide.
17. The offence of abetment by instigation depends
upon the intention of the person who abets and not
upon the act which is done by the person who has
abetted. The abetment may be by instigation, conspiracy
or intentional aid as provided under Section 107 IPC.
However, the words uttered in a fit of anger or
omission without any intention cannot be termed as
instigation. (Vide: State of Punjab v. Iqbal Singh, AIR
1991 SC 1532; Surender v. State of Hayana, (2006) 12
SCC 375; Kishori Lal v. State of M.P., AIR 2007 SC
2457; and Sonti Rama Krishna v. Sonti Shanti Sree,
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AIR 2009 SC 923.)
18. In fact, from the above discussion it is apparent
that instigation has to be gathered from the
circumstances of a particular case. No straight-jacket
formula can be laid down to find out as to whether in
a particular case there has been instigation which force
the person to commit suicide. In a particular case,
there may not be direct evidence in regard to
instigation which may have direct nexus to suicide.
Therefore, in such a case, an inference has to be
drawn from the circumstances and it is to be
determined whether circumstances had been such which
in fact had created the situation that a person felt
totally frustrated and committed suicide. More so, while
dealing with an application for quashing of the
proceedings, a court cannot form a firm opinion, rather
a tentative view that would evoke the presumption
referred to under Section 228 Cr.P.C.
19. Thus, the case is required to be considered in the
light of aforesaid settled legal propositions. In the
instant case, alleged harassment had not been a casual
feature, rather remained a matter of persistent
harassment. It is not a case of a driver; or a man
having an illicit relationship with a married woman,
knowing that she also had another paramour; and
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therefore, cannot be compared to the situation of the
deceased in the instant case, who was a qualified
graduate engineer and still suffered persistent
harassment and humiliation and additionally, also had
to endure continuous illegal demands made by the
appellant, upon non-fulfillment of which, he would be
mercilessly harassed by the appellant for a prolonged
period of time. He had also been forced to work
continuously for a long durations in the factory, vis-à-
vis other employees which often even entered to 16-17
hours at a stretch. Such harassment, coupled with the
utterance of words to the effect, that, "had there been
any other person in his place, he would have certainly
committed suicide" is what makes the present case
distinct from the aforementioned cases considering the
facts and circumstances of the present case, we do not
think it is a case which requires any interference by
this court as regards the impugned judgment and order
of the High Court. The appeal is, therefore, dismissed
accordingly."
8.8.4 Further, in the judgment of the Hon'ble Apex
Court in the case of Neeharika Infrastructure Pvt. Ltd.
versus State of Maharashtra and Others reported in
2021 SCC OnLine SC 315, and more particularly para
80 is relevant, which is as under:
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"80. In view of the above and for the reasons stated
above, our final conclusions on the principal/core issue,
whether the High Court would be justified in passing
an interim order of stay of investigation and/or "no
coercive steps to be adopted", during the pendency of
the quashing petition under Section 482 Cr.P.C and/or
under Article 226 of the Constitution of India and in
what circumstances and whether the High Court
would be justified in passing the order of not to
arrest the accused or "no coercive steps to be
adopted" during the investigation or till the final
report/chargesheet is filed under Section 173 Cr.P.C.,
while dismissing/disposing of/not entertaining/not
quashing the criminal proceedings/complaint/FIR in
exercise of powers under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of India, our
final conclusions are as under:
i) Police has the statutory right and duty under the
relevant provisions of the Code of Criminal Procedure
contained in Chapter XIV of the Code to investigate
into a cognizable offence;
ii) Courts would not thwart any investigation into the
cognizable offences;
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iii) It is only in cases where no cognizable offence or
offence of any kind is disclosed in the first
information report that the Court will not permit an
investigation to go on;
iv) The power of quashing should be exercised
sparingly with circumspection, as it has been
observed, in the 'rarest of rare cases (not to be
confused with the formation in the context of death
penalty).
v) While examining an FIR/complaint, quashing of
which is sought, the court cannot embark upon an
enquiry as to the reliability or genuineness or
otherwise of the allegations made in the
FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at
the initial stage;
vii) Quashing of a complaint/FIR should be an
exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping
the jurisdiction of the police, since the two organs of
the State operate in two specific spheres of activities
and one ought not to tread over the other sphere;
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ix) The functions of the judiciary and the police are
complementary, not overlapping;
x) Save in exceptional cases where non-interference
would result in miscarriage of justice, the Court and
the judicial process should not interfere at the stage
of investigation of offences;
xi) Extraordinary and inherent powers of the Court do
not confer an arbitrary jurisdiction on the Court to
act according to its whims or caprice;
xii) The first information report is not an
encyclopaedia which must disclose all facts and details
relating to the offence reported. Therefore, when the
investigation by the police is in progress, the court
should not go into the merits of the allegations in the
FIR. Police must be permitted to complete the
investigation. It would be premature to pronounce the
conclusion based on hazy facts that the complaint/FIR
does not deserve to be investigated or that it amounts
to abuse of process of law. After investigation, if the
investigating officer finds that there is no substance
in the application made by the complainant, the
investigating officer may file an appropriate
report/summary before the learned Magistrate which
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may be considered by the learned Magistrate in
accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very
wide, but conferment of wide power requires the court
to be more cautious. It casts an onerous and more
diligent duty on the court;
xiv) However, at the same time, the court, if it
thinks fit, regard being had to the parameters of
quashing and the self-restraint imposed by law, more
particularly the parameters laid down by this Court
in the cases of R.P. Kapur (supra) and Bhajan Lal
(supra), has the jurisdiction to quash the
FIR/complaint;
xv) When a prayer for quashing the FIR is made by
the alleged accused and the court when it exercises
the power under Section 482 Cr.P.C., only has to
consider whether the allegations in the FIR disclose
commission of a cognizable offence or not. The court
is not required to consider on merits whether or not
the merits of the allegations make out a cognizable
offence and the court has to permit the investigating
agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable
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and/or the aforesaid aspects are required to be
considered by the High Court while passing an
interim order in a quashing petition in exercise of
powers under Section 482 Cr.P.C. and/or under Article
226 of the Constitution of India. However, an interim
order of stay of investigation during the pendency of
the quashing petition can be passed with
circumspection. Such an interim order should not
require to be passed routinely, casually and/or
mechanically. Normally, when the investigation is in
progress and the facts are hazy and the entire
evidence/material is not before the High Court, the
High Court should restrain itself from passing the
interim order of not to arrest or "no coercive steps to
be adopted" and the accused should be relegated to
apply for anticipatory bail under Section 438 Cr.P.C.
before the competent court. The High Court shall not
and as such is not justified in passing the order of
not to arrest and/or "no coercive steps" either during
the investigation or till the investigation is completed
and/or till the final report/chargesheet is filed under
Section 173 Cr.P.C., while dismissing/disposing of the
quashing petition under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of India. xvii)
Even in a case where the High Court is prima facie
of the opinion that an exceptional case is made out
for grant of interim stay of further investigation, after
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considering the broad parameters while exercising the
powers under Section 482 Cr.P.C. and/or under Article
226 of the Constitution of India referred to
hereinabove, the High Court has to give brief reasons
why such an interim order is warranted and/or is
required to be passed so that it can demonstrate the
application of mind by the Court and the higher
forum can consider what was weighed with the High
Court while passing such an interim order.
xviii) Whenever an interim order is passed by the
High Court of "no coercive steps to be adopted"
within the aforesaid parameters, the High Court must
clarify what does it mean by "no coercive steps to be
adopted" as the term "no coercive steps to be
adopted" can be said to be too vague and/or broad
which can be misunderstood and/or misapplied."
8.8.5 It is also fruitful to refer the judgment of the
Hon'ble Apex Court in the case of Gangula Mohan Reddy
(supra), more specifically, paragraphs 10, 15 and 17 are
relevant as under:
"10. `Abetment' has been defined under section 107 of
the Code. We deem it appropriate to reproduce section
107, which reads as under:
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"107. Abetment of a thing - A person abets the doing
of a thing, who -
First - Instigates any person to do that thing; or
Secondly - Engages with one or more other person or
persons in any conspiracy for the doing of that thing,
if an act or illegal omission takes places in pursuance
of that conspiracy, and in order to the doing of that
thing; or Thirdly - Intentionally aides, by any act or
illegal omission, the doing of that thing."
12. Explanation 2 which has been inserted along with
section 107 reads as under:
"Explanation 2 - Whoever, either prior to or at the
time of the commission of an act, does anything in
order to facilitate the commission of that act, and
thereby facilitate the commission thereof, is said to aid
the doing of that act."
15. In the instant case, the deceased was
undoubtedly hyper sensitive to ordinary petulance,
discord and differences which happen in our day-to-day
life. Human sensitivity of each individual differs from
the other. Different people behave differently in the
same situation.
17. Abetment involves a mental process of instigating
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a person or intentionally aiding a person in doing of a
thing. Without a positive act on the part of the
accused to instigate or aid in committing suicide,
conviction cannot be sustained. The intention of the
Legislature and the ratio of the cases decided by this
court is clear that in order to convict a person under
section 306 IPC there has to be a clear mens rea to
commit the offence. It also requires an active act or
direct act which 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
committed suicide."
8.8.6 It is also fruitful to refer the judgment of the
Hon'ble Apex Court in the case of State of Kerala and
Ors. (supra), more specifically, paragraph 18 is relevant
as under:
"18. Before parting with the case, we are impelled to
say something. Mr. Bhushan, learned counsel appearing
for the respondent No. 1 & 2 has drawn our attention
to a facet of earlier judgment of the High Court
wherein it has been mentioned that at one time the
deceased was pressurised by some superior officers. We
have independently considered the material brought on
record and arrived at our conclusion. But, regard being
had to the suicide note and other concomitant facts
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that have been unfurled, we are compelled to
recapitulate the saying that suicide reflects a "species of
fear". It is a sense of defeat that corrodes the inner
soul and destroys the will power and forces one to
abandon one's own responsibility. To think of self-
annihilation because of something which is disagreeable
or intolerable or unbearable, especially in a situation
where one is required to perform public duty, has to be
regarded as a non-valiant attitude that is scared of the
immediate calamity or self-perceived consequence. We
may hasten to add that our submission has nothing to
do when a case under Section 306 IPC is registered in
aid of Section 113A of the Evidence Act, 1872."
8.8.7 It is also fruitful to refer the judgment of this
Court in the case of Vallabhbhai Vaghasiya versus State
of Gujarat and Others rendered in Criminal Misc.
Application No.11957 of 2015 dated 5.5.2017, more
specifically, paragraphs 8 and 11 are relevant, as under:
"8. The Supreme Court, in the case of M. Mohan vs.
State Represented by the Deputy Superintendent of
Police, AIR 2011 SC 1238, observed in paras-45 and
46, as under;
"45. Abetment involved a mental process of
instigating a person or intentionally aiding a
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person in doing of a thing. Without a positive
act on the part of the accused to instigate or
aid in committing suicide, conviction cannot be
sustained.
46.The intention of the Legislature and the
ratio of the cases decided by this court are
clear that in order to convict a person under
section 306, IPC there has to be a clear mens
rea to commit the offence. It also requires an
active act or direct act which 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/she
committed suicide"
11. In the aforesaid context, I may refer to and rely
on the observations of the Supreme Court in the case
of M. Mohan Vs. Velmurugan and another, reported in
A.I.R. 2011 Supreme Court 1238, in paras 43, 44, 45,
46, 47 and 50, which read as under:
"43. In State of West Bengal v. Orilal Jaiswal
& Another (1994) 1 SCC 73 (AIR 1994 SC
1418), this Court has cautioned that the
Court should be extremely careful in assessing
the facts and circumstances of each case and
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the evidence adduced in the trial for the
purpose of finding whether the cruelty meted
out to the victim had in fact induced her to
end the life by committing suicide. If it
appears to the Court that a victim committing
suicide was hypersensitive to ordinary
petulance, discord and difference in domestic
life, quite common to the society, to which
the victim belonged and such petulance,
discord and difference were not expected to
induce a similarly circumstanced individual in
a given society to commit suicide, the
conscience of the Court should not be satisfied
for basing a finding that the accused charged
of abetting the offence of suicide should be
found guilty.
44. This court in Chitresh Kumar Chopra v.
State (Govt. of NCT of Delhi) 2009 (16) SCC
605, had an occasion to deal with this aspect
of abetment. The court dealt with the
dictionary meaning of the word "instigation"
and "goading". The court opined that there
should be intention to provoke, incite or
encourage the doing of an act by the latter.
Each person's suicidability pattern is different
from the others. Each person has his own
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idea of selfesteem and self-respect. Therefore,it
is impossible to lay down any straight-jacket
formula in dealing with such cases. Each case
has to be decided on the basis of its own
facts and circumstances.
45. Abetment involves a mental process of
instigating a person or intentionally aiding a
person in doing of a thing. Without a positive
act on the part of the accused to instigate or
aid in committing suicide, conviction cannot be
sustained.
46. The intention of the Legislature and the
ratio of the cases decided by this court are
clear that in order to convict a person under
section 306 IPC there has to be a clear mens
rea to commit the offence. It also requires an
active act or direct act which 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/she
committed suicide.
47. In V.P. Shrivastava v. Indian Explosives
Limited and Others (2010) 10 SCC 361, this
court has held that when prima facie no case
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is made out against the accused, then the
High Court ought to have exercised the
jurisdiction under section 482 of the Cr.PC
and quashed the complaint.
50. Undoubtedly, the deceased had died
because of hanging. The deceased was
undoubtedly hyper-sensitive to ordinary
petulance, discord and differences which
happen in our day-to-day life. In a joint
family, instances of this kind are not very
uncommon. Human sensitivity of each
individual differs from person to person. Each
individual has his own idea of self-esteem and
self-respect. Different people behave differently
in the same situation. It is unfortunate that
such an episode of suicide had taken place in
the family. But the question remains to be
answered is whether the appellants can be
connected with that unfortunate incident in
any manner?"
8.9 Hence, considering the above referred judgments and
settled position of law and considering the facts of the
present case, whereby in the suicide note and video clip
available on the record, there is specific allegation
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regarding some monetary transaction with the accused
persons by the deceased, which are also coming on the
record of the matter, prima facie, ingredients of the
Sections 306 and 107 is satisfied. Now the investigation
is almost over and charge-sheet is about to be filed as it
could not be filed due to pendency of this proceeding.
The Hon'ble Apex Court in the case of (i) Praveen
Pradhan (supra), (ii) Mahendra K.C. (supra), has consider
various judgments including the leading judgment in the
case of Sanju @ Sanjay Singh Sengar v. State of M.P.,
reported in AIR 2002 SC 1998, whereby the Hon'ble
Apex Court has taken view that "when the accused
asked the deceased to go and die" in that case also, the
Hon'ble Apex Court has quashed the proceeding, after
considering the judgment in the cases of Praveen
Pradhan (supra) and Mahendra K.C. (supra) and
subsequent judgments, the Hon'ble Apex Court has come
to the conclusion that learned Single Judge of the High
Court while exercising its power under Section 482 of
the Criminal Procedure Code to quash the F.I.R.
constituted against the accused person should have
applied to test in the facts and circumstances of the
present case (i) whether the allegation made in the
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complaint prima facie constitute an offence, and (ii)
whether the allegations are so improbable that a prudent
man could not arrive at the conclusion that there is
sufficient ground to proceed with the complaint.
8.10 Therefore, keeping in mind the abovementioned
observations in the abovementioned judgments, more
particularly, in the case of Mahendra K.C. (supra), I am
of the opinion that in the present case, allegations made
against the applicants are probable one and there is
sufficient material to proceed pursuant to the allegations
against the applicants. This Court should also keep in
mind that there is distinction between applications for
quashing under Section 482 and a criminal trial or an
appeal against the conviction on a charge under Section
306. This Court cannot transgress the limits of
jurisdiction under Section 482 of the Criminal Procedure
Code in such glaring facts and circumstances of the
present case. This Court cannot decide the matter on the
basis of hypothesis and surmises by reaching to the
conclusion that the no offence is made out on the basis
of bundle of facts available with this Court. This Court
cannot test the veracity of the allegation in criminal
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complaint/F.I.R. and in the suicide note left behind by
the deceased without having the benefit of an evidentiary
record, which would be collected during the trial.
8.11 This Court, while considering the present
applications under Section 482 of the Criminal Procedure
Code, has come to the conclusion that the test is
required to be applied whether the allegations in the
complaint as they stand, without adding or detracting
from the complaint, prima establish the ingredients of
the offences alleged and at this stage this Court cannot
test the veracity of the allegations nor the matter can be
proceeded that the Judge conducting trial in the trial
court on the basis of evidence collected during the course
of trial. Therefore, after considering the fact that the
complainant has given dispute about the transaction with
the accused by the deceased and on that basis the F.I.R.
is registered and therefore, it is impossible for this Court
for a judicial review of the contents of complaint as well
as suicide note, at this stage while exercising the powers
under Section 482.
8.12 Furthermore, looking to the material available
on record, this Court cannot say in any manner that
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allegations in F.I.R. are so absurd and are inherently
improbable on the basis which no prudent could even
reach at just conclusion that there is sufficient ground
for proceeding against accused persons. Neither it
transpires from the material available on the record that
this is a case where the criminal proceeding is initiated
is manifestly mala fide and has been instituted with
ulterior motive or taking vengeance of the accused
persons. On the contrary, the specific allegations in the
F.I.R. and in the complaint due reflection in the suicide
note establish a prima facie case for abetment of suicide
within the meaning of Sections 306 and 107 of the I.P.C.
8.13 Therefore, I am of the opinion that there is no
case made out to interfere with the proceeding initiated
pursuant to the complaint filed by the complainant by
way of impugned FIR being CR No.I-123/2017 registered
with Palsana Police Station, Surat by exercising my
power under Section 482. Therefore, the present
applications are required to be dismissed.
8.14 Before parting with the judgment, the
contention raised by the learned senior advocate Mr.
Syed regarding the submission about the mental status
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of the persons who has committed suicide. In this
context, it is not appropriate for this Court to accept
such contention and make any observation by diminishing
the importance of mental health. The mental health of a
person cannot be compressed into "one-size-fits-whole"
approach.
8.15 It is also contented by the learned advocate for
the applicants that that the persons who is depressed
and suffering from mental health, the observation made
in the judgment of the Hon'ble Apex Court in the cases
of Mahendra K.C. (supra), and more specifically para 32
is more relevant, some of the observation are as under:
"32. ...Behavioural scientists have initiated the discourse
on the heterogeneity of every individual and have
challenged the traditional notion of 'all humans behave
alike'. Individual personality differences manifest as a
variation in the behavior of people. Therefore, how an
individual copes up with a threat- both physical and
emotional, expressing (or refraining to express) love, loss,
sorrow and happiness, varies greatly in view of the
multi-faceted nature of the human mind and emotions.
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Thus, the submission regarding the manner in which a
depressed person ought to have behaved deeply
diminishes the gravity of mental health issues"
8.16 Therefore, considering the ratio of the judgment
of the Hon'ble Apex Court in the abovementioned
judgment as per above discussion, I am of the opinion
that the present applications filed by the respective
applicants are not required to be considered as the same
is found meritless to exercise the powers under Section
482 of the Criminal Procedure Code.
9. Accordingly, the present application is dismissed,
with no order as to costs. Rule is discharged. Interim
relief, if any, granted earlier stands discharged.
10. At this stage, learned senior advocate Mr. Syed
prays for continuing the stay, which is already granted
in the present case. Since the matters are pending since
the year 2017, no fruitful purpose will be served if
further interim protection is granted to the present
applicants as the matters are heard almost after a
period of six years before this Court, let the proceedings
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of trial be proceeded further in the interest of justice.
Hence, the request (for extension of stay) is denied.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
