Gujarat High Court
Gelabhai Govindbhai Metaliya vs State Of Gujarat on 2 November, 2023
Bench: J. C. Doshi
NEUTRAL CITATION
R/SCR.A/2526/2023 ORDER DATED: 02/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2526 of 2023
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GELABHAI GOVINDBHAI METALIYA
Versus
STATE OF GUJARAT
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Appearance:
MR VICKY B MEHTA(5422) for the Applicant(s) No. 1,2,3,4,5,6,7
for the Respondent(s) No. 2
MR KM ANTANI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 02/11/2023
ORAL ORDER
Learned advocate Ms. Bhavika Premal states that she has
instructions to appear on behalf of the original complainant, and
thereby, seeks permission to file her Vakalatnama, which is
granted. The original complainant is present in the Court and is
identified by her learned advocate.
1. By this application under Section 482 of the Code of
Criminal Procedure (for short "the Code"), the applicants seek
quashing of the FIR registered as CR No.11211040230022 of
2023 with Panshina Police Station, Surendranagar for the
offence punishable under Sections 498A, 306, 420 and 114 of
the Indian Penal Code, sections 3(2)(v), 3(1)(r) and 3(1)(s) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act and further proceedings arising thereof.
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R/SCR.A/2526/2023 ORDER DATED: 02/11/2023
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2. Heard learned Advocates appearing for the respective
parties.
3. Learned Advocate Ms.Bhavika Premal appearing for org.
complainant has placed on record the affidavit of the org.
complainant alongwith relatives of the deceased having blood
relation and would submit that considering the overall facts and
circumstances of the case, complainant as well as relatives have
amicably settled the dispute with the accused with the
intervention of the well-wishers of head of the society as well as
overall interest of the family. It is further stated that pursuant to
such settlement placed on record, the complainant and the blood
relatives of the deceased are not intended to proceed further in
the offence alleged against the accused and they have no
objection of the proceedings in question are to be quashed and
set aside. It is submitted that such settlement is voluntarily,
freely and without threat or pressure; but from one's own will.
4. Reliance is placed upon the case of Chitresh Kumar
Chopra Vs. State of NCT of Delhi (2009 (16) SCC 605) and B S
Joshi & Ors. Vs. State of Haryana [(2003) 4 SCC 675] to contend
that when the compromise has been arrived at between the
parties in a private dispute whereby the element of public
interest is not at higher stake and parties have withdrawn the
allegations and counter allegations against each other, it would
be improper to decline to exercise the power of quashing on the
ground that it would be permitting the parties to compound the
non-compoundable offence. It is further submitted that in case
where the compromise had been arrived at between the parties
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by which the parties have withdrawn all the claims and
allegations against the accused, technicality it should not be
allowed to stand in the way of quashing the criminal proceedings
as continuation of the same would be a futile exercise.
5. On the other hand, learned APP objected to quash the
proceeding in view of decision in case of Daxaben Vs. State of
Gujarat, AIR 2022 SC 3530 and contended that even if the
settlement has been arrived at between the parties, the case
under Section 306 falls in the category of heinous and serious
crime and to be treated as against the society and not against
the individual. He would further submit that this is not the stage
where the Court should minutely and meticulously examine the
evidence on record to find out that it would be fruitless to allow
the criminal proceedings and contentions raised in this petition
can be decided at the stage of trial and not in the present
proceedings. He would further contend that in the present case
reading the FIR at face value would indicate that deceased
recorded the suicide note and committed suicide and therefore
proceeding of the case is required to be carried on at its logical
conclusion. By making above submissions, he would urge to
dismiss this petition.
6. In background of the above arguments, the staple question
arises for consideration as to whether the FIR and consequential
proceedings are liable to be quashed and set aside in exercise of
extraordinary and inherent jurisdiction vested under Article 226
and 227 of the Constitution of India read with Section 482 of the
Code.
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7. On face reading of FIR what appears that deceased Gitaben
consumed poison and committed suicide. However, that incident
has not been presented as root cause for commission of offence
but that cause and incident has been taken as tool to
compromise and to obtain one house from accused and when
some cheating was found, FIR came to be lodged. FIR if taken on
face, it indicates that allegations of criminal breach of trust and
forgery are levelled instead of allegations of meting of ill-
treatment, cruelty or harassment to the deceased which led her
to commit suicide. As such no averments of offence punishable
under section 498A and section 306 are found. FIR seems to be
clear abuse of process of law. FIR is filed to settle personal score
and not for reason that deceased was subjected to cruelty or for
any reason which instigate her to commit suicide. FIR indicates
that no injury was found on the body of deceased when father
and mother of deceased had seen her. Much could be taken from
the FIR to dislodge vigor of FIR, but the parties have settled their
dispute. Affidavits of all concerned i.e. parents of deceased are
taken on record and since they have settled the dispute, the
petition requires to be allowed.
8. In order to prove prima facie the offence under Section 306
of the IPC, the prosecution is required to show that there is some
instigation on the part of the accused which led the deceased to
commit suicide as no alternative is left with him except to
commit suicide. The word 'instigation' is defined in IPC. In
Ramesh Kumar v State of Chhattisgarh (2001)9 SCC 618
following words as defined the instigation.
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"Instigation is to goad, urge, forward, provoke, incite or
encourage to do an act" To satisfy the requirement of
"instigation", though it is not necessary that actual words must
be used to that effect or what constitutes "instigation" must
necessarily and specifically be suggestive of the consequence. Yet
a reasonable certainty to incite the consequence must be capable
of being spelt out. Where the accused had, by his acts or
omission or by a continued course of conduct. created such
circumstances that the deceased was left with no other option
except to commit suicide, in which case, an "instigation" may
have to be in- ferred. A word uttered in a fit of anger or emotion
without intending the consequences to actually follow, cannot be
said to be instigation."
9. Thus, to constitute "instigation", a person who instigates
another has to provoke, incite, urge or encourage the doing of an
act by the other by "goading" or urging forward. The dictionary
meaning of the word "goad" is "a thing that stimulates someone
into action; provoke to action or reaction" (see Concise Oxford
English Dictionary); "to keep irritating or annoying somebody
until he reacts" (see Oxford Advanced Learner's Dictionary, 7th
Edn.). Similarly, "urge" means to advise or try hard to persuade
somebody to do something or to make a person to move more
quickly and or in a particular direction, especially by pushing or
forcing such person. Therefore, a person who instigates another
has to "goad" or "urge forward" the latter with intention to
provoke, incite or encourage the doing of an act by the latter.
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10. In the present case, on bare reading of the FIR basic
ingredients is found lacking which indicates that there was some
instigation; that there was urge forward or there was a goading
or provoking which led the deceased to commit suicide. Thus,
the essential ingredients of Section 498(A) and section 306 of the
IPC is lacking which the prosecution is required to prove.
11. In Daxaben (supra) in paragraph 50 the Hon'ble Apex
Court laid down that the offence under Section 306 of the IPC
would fall in category of heinous and serious crime and are to be
treated as a crime against the society. It is further observed that
offence under Section 306 of the IPC cannot be quashed on the
basis of the financial settlement, with the informant, surviving
spouse, parents, children, guardians, care-givers or anyone else.
However, in the said decision, the Hon'ble Apex Court has not
examined the question whether on plain reading of the FIR
discloses offence under Section 306 of the IPC.
12. Apt to be noted that pursuant to the compromise arrived at
between the parties; org. complainant and relatives of the
deceased have stated that they have withdrawn allegations
against the accused and stated that they have no objection if the
proceedings are quashed. The said affidavits of the org.
complainant and other relatives of the deceased exposes that the
settlement is voluntary; without force or coerce and without
monetary benefit. It further exposes situation whereby in light of
observations made in Daxaben (supra) this Court has decided
the case on its own merits.
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R/SCR.A/2526/2023 ORDER DATED: 02/11/2023
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13. What more appears that the complainant and relatives of
the deceased has taken back the allegations against the accused.
In that circumstances, criminal case against the accused become
non-effective. At this juncture, I may refer to the judgment of
Madan Mohan Abbot vs. State of Punjab [2008] 4 SCC 582 6].
Observations in paragraph 6 is relevant which reads thus:
"[6] We need to emphasis that it is perhaps advisable that
in disputes where the question involved is of a purely
personal nature, the court should ordinarily accept the
terms of the compromise even in criminal proceedings as
keeping the matter alive with no possibility of a result in
favour of the prosecution is a luxury which the courts,
grossly overburdened as they are, cannot afford and that
the time so saved can be utilized in deciding more effective
and meaningful litigation. This is a common sense
approach to the matter based on ground of realities and
benefit of the technicalities of the law".
14. Issue is no more res integra that inherent power could be
exercised by the High Court to set aside the FIR to prevent the
abuse of process of law and to otherwise secure the ends of
justice. Thus, in peculiar facts and circumstances of the case,
this Court is of the opinion that there is a minimal chance that
witnesses would come forward to support the case of prosecution
to secure the conviction of the accused. In fact, there is a remote
or no chance or desolate chance for the conviction and therefore
while referring the ratio laid down in State of Haryana & Ors. Vs.
Bhajanlal & Ors., [1992 Suppl. 1 SCC 2020] and Prabhatbhai
Aahir alias Prabhatbhai Bhimsinhbhai Karmur & Ors. vs. State
of Gujarat & Ant., [(2017) 9 SCC 641] this Court is inclined to
quash the FIR.
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R/SCR.A/2526/2023 ORDER DATED: 02/11/2023
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15. It is required to be noted that Co-ordinate Bench (Coram :
Samir J. Dave, J) has quashed the FIR against main accused
Sureshbhai Metaliya vide order dated 27.09.2023 in Special
Criminal Application No.10883 of 2023.
16. This Court is quite conscious that offence of allegation of
committing suicide is crime but considering peculiar facts of the
case and bare reading of FIR indicates that it is well designed
FIR to settle personal score.
17. In the result, the application is allowed. The impugned
complaint being FIR registered as CR No.11211040230022 of
2023 with Panshina Police Station, Surendranagar as well as all
consequential proceedings initiated in pursuance thereof are
hereby quashed and set aside qua the applicants herein. Rule is
made absolute. Direct service is permitted. If the applicants are
in jail, the jail authority concerned is directed to release the
applicants forthwith, if not required in connection with any other
case.
(J. C. DOSHI,J)
SATISH
