Gujarat High Court
Sajid @ Jadiyo @ Iqbal Ahemadbhai @ ... vs State Of Gujarat on 3 November, 2023
Bench: J. C. Doshi
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R/CR.MA/19077/2023 ORDER DATED: 03/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 19077 of 2023
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SAJID @ JADIYO @ IQBAL AHEMADBHAI @ HIMMATSINH CHAUHAN
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK B BAROT(3711) for the Applicant(s) No. 1,10,11,2,3,4,5,6,7,8,9
for the Respondent(s) No. 2
MR K M ANTANI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 03/11/2023
ORAL ORDER
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.I-40 of 2014 with Gorva
Police Station for the offence punishable under Sections 306,
384, 365, 341, 354, 506(2), 120-B of the Indian Penal Code and
under Section 25(1) of the Arms Act and under further
proceedings arising thereof.
2. Heard learned Advocates appearing for the respective
parties.
3. Learned Advocate Mr.Piyush Trivedi is permitted to file his
Vakalatnama for org. complainant. He has placed on record the
affidavit of the org. complainant who is son of the deceased and
wife of the deceased and would submit that considering the
overall facts and circumstances of the case, complainant as well
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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. Learned Advocate for both the parties have jointly
submitted that the parties have amicably settled their dispute. It
is further submitted that on plain reading of the FIR, it does not
disclose the offence of abetment as defined in Section 107 and
500 of the IPC. It is further submitted 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 left with no option
to commit suicide. It is further submitted that mere allegations
in the FIR that certain amount has been lent to the deceased
and he could not repay the said amount would not constitute the
offence. It is further submitted that even if the FIR is seen, there
is no incident within the proximity of time of committing suicide
which would connect the accused with the crime and thus basic
ingredients of Section 306 of the IPC is lacking. It is also jointly
submitted that as the allegations are withdrawn by the
complainant and both the witnesses against the accused, there
is bleak chance of conviction or rather there is no chance of
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conviction. It is further submitted that allowing the FIR to role
on into a private dispute would not serve any useful purpose and
continuation of FIR and subsequent proceeding would be
unnecessary harassment and futile exercise.
4.1 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 involved 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
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 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
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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. Attention of this Court is also invited to an order dated
11/08/2017 passed in SCR.A No.2767 of 2017 annexed at
Annexure-B whereby in respect of co-accused - Kiritbhai Patel,
this Court has quashed the FIR with the consent of the parties.
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.
7. The principal contention in the FIR is regarding offence
under Section 306 of the IPC which would indicate that
pursuant to some money landing act took place between the
parties led the deceased to commit act of suicide. The suicide
note was also found from the deceased wherein it is written that
accused was passing threat for the dire consequences and to
break the residential house, as also to take the vehicle of the
deceased.
8. In order to prove prima facie the offence under Section 306
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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.
"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 neces sarily 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
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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.
10. In the present case, on bare reading of the FIR basik
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 306 of the IPC is lacking
which the prosecution is required to prove.
11. It is undoubted 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.
12. 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:
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"[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".
13. 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.
14. In the result, the application is allowed. The impugned
complaint being FIR registered as CR No.I-40 of 2014 with Gorva
Police Station 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
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concerned is directed to release the applicants forthwith, if not
required in connection with any other case.
(J. C. DOSHI,J)
sompura
