Maheshbhai Naranbhai Davera vs State Of Gujarat
2023 Latest Caselaw 2403 Guj

     R/CR.MA/20354/2018                              ORDER DATED: 20/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 20354 of 2018

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                          MAHESHBHAI NARANBHAI DAVERA
                                     Versus
                           STATE OF GUJARAT & 1 other(s)
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Appearance:
MR.NANDISH H THACKAR(7008) for the Applicant(s) No. 1
MR AR PATEL(5838) for the Respondent(s) No. 2
MR LB DABHI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                  Date : 20/03/2023
                   ORAL ORDER

1. Rule. Respondents waive service.

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

Criminal Procedure, 1973, the applicant-original accused seeks

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

being I-C.R.No.01 of 2018 registered with Maliya-Miyana Police

Station, Morbi for the offences punishable under Section 306 of

the IPC and Sections 5, 33 and 34 of the Bombay Money Lenders

Act.

3. Facts and circumstances giving rise to file present

petition are that due to financial stress, the deceased was

under depression. The accused has lent financial aid in the

form of short term loan to the deceased for which he could

R/CR.MA/20354/2018 ORDER DATED: 20/03/2023

not return back it, as a result he was pressurized for high

rate of interest. In such circumstances, the deceased could

not bear the financial stress and has decided to commit

suicide by hanging himself and accordingly, he committed

suicide.

4. The original informant filed an affidavit, which is

taken on record. He 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, he does not wish to prosecute

the accused and has no objection if the proceedings are

quashed.

5. Learned counsel for the applicant and learned

counsel for the informant 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 possibility of the accused

being convicted for the alleged offence and it would

R/CR.MA/20354/2018 ORDER DATED: 20/03/2023

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) 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

R/CR.MA/20354/2018 ORDER DATED: 20/03/2023

money lending and had lent money to the deceased.

Thus, prima facie no offence is made out so far

provisions of Bombay Money Lenders Act 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

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

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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.

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

Section 306 provides that whoever abates the commission

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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 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 of justice. Thus, considering the

R/CR.MA/20354/2018 ORDER DATED: 20/03/2023

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.01 of 2018 registered with Maliya-Miyana Police

Station, Morbi and all other proceedings arising therefrom

are quashed. Rule is made absolute accordingly.

(ILESH J. VORA,J) Rakesh