Ashik Govindbhai Patel vs State Of Gujarat
2023 Latest Caselaw 1901 Guj

   R/CR.MA/4056/2023                              ORDER DATED: 24/02/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 4056 of 2023

==========================================================
                       ASHIK GOVINDBHAI PATEL
                               Versus
                         STATE OF GUJARAT
==========================================================
Appearance:
MR DEVDIP BRAHMBHATT(3490) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR RONAK RAVAL, APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                           Date : 24/02/2023

                            ORAL ORDER

1. Ms.Nidhi Barot, learned advocate states that she has received

instructions to appear for and on behalf of respondent no.2 and

shall file her Vakalatnama before the Registry. Registry is directed

to accept the same.

2. By way of this application under Section 482 of the Code of

Criminal Procedure, 1973, the applicants-original accused seek to

invoke inherent powers of this Court, for quashing of the FIR being

I-C.R.No.11206020230124 of 2023 registered with Kadi Police

Station, Mehsana for the offences punishable under Sections 306,

384, 504, 506(2) and 114 of the Indian Penal Code and Sections 5,

39, 40, 42(a) and 42(d) of the Money Lending Act.

R/CR.MA/4056/2023 ORDER DATED: 24/02/2023

3. Facts and circumstances giving rise to file present petition are that

the applicant had obtained financial aid from the complainant's

husband for purchasing the house and deceased was great stress

and depression. It is alleged in the FIR that the money was

advanced by the accused on high interest and due to pressure and

harassment to return back the advance money, deceased ended his

life by consuming poison.

4. The original informant filed an affidavit, which is taken on record.

She has categorically stated that the dispute with the applicant has

been amicably settled with the intervention of the friends and well-

wishers and pursuant to the settlement, she does not wish to

prosecute the accused and has no objection if the proceedings are

quashed.

5. Learned counsel for the respective parties have jointly submitted

that:-

(1) The dispute is a private in nature and in view of the

compromise between the parties and when same has not

been secured through coercion, threat or inducement, no

prima facie case is made out against the applicant for the

alleged offence and therefore, no useful purpose would be

served by continuing the proceedings as there is no

R/CR.MA/4056/2023 ORDER DATED: 24/02/2023

possibility of the accused being convicted for the alleged

offence and it would be unnecessary harassment and futile

attempt, if the prosecution is allowed to continue.

(2) On merits, it is submitted that the allegations leveled in the

FIR are accepted on its face value, it does not make out the

case for commission of the alleged offence of suicide.

Relying on the case of Chitresh Kumar Chopra Vs. State

of NCT of Delhi (2009 (16) SCC 605), to submit that in

order to convict a person under Section 306 of IPC, there has

to be a clear mens rea to commit an offence and it also

requires an active, 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. Merely on allegations of

harassment without their being any positive action,

proximate to the time of occurrence, on the part of the

accused, which led or compel the deceased to commit

suicide, the charge in term of Section 306 of the IPC is not

sustainable.

(3) There is an absolute no averments in the suicide note, except

referring the name of the applicant, there is no reference of

R/CR.MA/4056/2023 ORDER DATED: 24/02/2023

any act or incidents, whereby the applicant herein are alleged

to have committed any willful act or omission or

intentionally aided or instigated the deceased to commit an

act of suicide.

(4) The complainant - respondent no.2, at the time of lodging

the FIR, did not have produced any record or document to

show that the applicant is in business of money lending and

had lent money to the deceased. Thus, prima facie no

offence is made out so far provisions of Gujarat Money

Lenders Act, 2011 is concerned.

6. On the other hand, learned APP has relied upon the judgment of the

Apex Court in case of Daxaben Vs. State of Gujarat, AIR 2022

SC 3530, to contend that even settlement has taken place, the court

lacked the jurisdiction to quash the FIR registered under Section

306 of the IPC, as the offence under Section 306 falls in the

category of heinous and serious offence and are to be treated as

crime against the society and not against individual one. On merits

of the case, it is submitted that this is not a stage where minute and

meticulous exercise with regard to the appreciation of evidence

may be done and fruitfulness of the allegations could only be tested

in a trial and therefore, when prima facie case is made out, the

R/CR.MA/4056/2023 ORDER DATED: 24/02/2023

application is liable to be dismissed.

7. Having considered the contentions raised by learned counsel for

the respective parties, the issue arise is whether the FIR and

consequential proceedings are liable to be quashed in exercise of

extraordinary and inherent jurisdiction?

8. It is no doubt to true that pursuant to the compromise arrived at

between the parties, the original informant - respondent no.2 has

no objection if the proceedings are quashed. On perusal of the

settlement affidavit, it appears that the settlement is voluntary,

without monetary benefit to be given to the complainant. In the

case of Daxaben (supra), in Para-50 of the judgment, the Apex

Court clearly laid down that offence under Section 306 of the IPC

would be fall in the category of heinous and serious offences and

are to be treated as crime against the society and FIR under Section

306 cannot be quashed on the basis of financial settlement with the

informant, surviving spouse, parents, children, guardians or anyone

else. It needs to be noted that the Apex Court has not examined the

question whether the FIR discloses offence under Section 306 of

the IPC.

9. In light of the observations made by the Apex Court in the case of

Daxaben (supra), this Court decides the case on its own merits.

R/CR.MA/4056/2023 ORDER DATED: 24/02/2023

10.The applicant is charged with Section 306 of the IPC. Section 306

provides that whoever abates the commission of suicide, shall be

punished with the imprisonment and shall be also liable to be fine.

The essential ingredients of offence under Section 306 of the IPC

are (i) abatement, (ii) intention of the accused to aid or instigate or

abate the deceased to commit suicide. Mere harassment by itself

would not constitute the abatement of suicide. There should be

evidence capable of suggesting that the accused intended by such

act to instigate the deceased to commit suicide. In other words,

there must be a prove of direct or indirect act(s) of incitement to

the commission of the suicide and therefore, whether a person has

abated to commit a suicide or not could only be gathered from the

facts and circumstances of each case.

11.In the facts of the present case, more particularly, considering the

fact of settlement and chargesheet case papers, prima facie no case

is made out against the accused for the alleged offence under

Section 306 and under the provisions of Gujarat Money Lenders

Act, 2011.

12.It is no more res-intergra that inherent powers could be exercised

by the High Court to give effect to an order under Cr.P.C.; to

prevent of abuse of process of Court; and to otherwise secure ends

R/CR.MA/4056/2023 ORDER DATED: 24/02/2023

of justice. Thus, considering the peculiar facts and circumstances

of present case, this Court is of the considered opinion that there is

minimal chances of witnesses coming forward in support of the

prosecution and chances of conviction appears to be remote and/or

bleak. In such circumstances, it would be unnecessary harassment

and futile attempt if the prosecution is allowed to continue.

13.For the foregoing reasons, this Court is of the considered view that

the application deserves to be allowed. Accordingly, following the

guidelines in State of Haryana & others Vs. Bhajanlal & others

(1992 Suppl. 1 SCC 335), the application is allowed. The FIR

being I-C.R.No.11206020230124 of 2023 registered with Kadi

Police Station, Mehsana and all other proceedings arising

therefrom are quashed. Rule is made absolute accordingly. Direct

Service is permitted.

(ILESH J. VORA,J) Rakesh