Ankit Babulal Parikh vs State Of Gujarat
2023 Latest Caselaw 8170 Guj

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     R/CR.MA/20189/2023                              ORDER DATED: 09/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 20189 of 2023
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                          ANKIT BABULAL PARIKH
                                  Versus
                           STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1,2,3,4,5,6
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 : 09/11/2023

                              ORAL ORDER

Learned advocate Mr. Pravin Bhachkan states that he has instructions to appear on behalf of the original complainant and thereby, seeks permission to file his Vakalatnama, which is granted. The original complainant is present in the Court and is identified by his learned advocate. The wife of the deceased appears through hybrid mode and she has consented for quashing of the FIR. Learned advocate Mr. Bhachkan states at bar that by tomorrow, he would see that affidavit of the wife of the deceased is filed.

1. Heard learned advocates for the respective parties.

2. Rule. Learned advocates waive service of rule on behalf of the respective respondents.

3. Considering the facts and circumstances of the case and

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since it is jointly stated at the bar by learned advocates on both the sides that the dispute between the parties has been resolved amicably, this matter is taken up for final disposal forthwith.

4. By way of this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants have prayed to quash and set aside the complaint being C.R. No.11190004231432 of 2023 registered with Gadhada Police Station for the offences under Sections 306 and 114 of Indian Penal Code and all the consequential proceedings arising therefrom.

5. Learned advocates for the respective parties submitted that during the pendency of proceedings, the parties have settled the dispute amicably and pursuant to such mutual settlement, the original complainant as well as brother of the complainant have also filed Affidavits, which are taken on record. In the Affidavit, the original complainant has categorically stated that the dispute with the applicants has been resolved amicably and that he has no objection, if the present proceedings are quashed and set aside since there is no surviving grievance between them.

6. 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

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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 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.

7. 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

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as continuation of the same would be a futile exercise.

8. 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 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.

9. 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.

10. 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

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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.

11. 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.

"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."

12. 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

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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.

13. 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 306 of the IPC is lacking which the prosecution is required to prove.

14. This Court cannot be oblivious to the fact that offence u/s 306 of the IPC has ramification upon the society at large. But, at the same time, the Court cannot blink its eyes from the consideration that merely stating section 306 of the IPC by itself would not create offence of abetment. The material on record must be indicative of instigation, goad or urge forward, which has provoked the deceased to commit suicide and such provocation was to the extent that no alternative is left for the deceased except to commit suicide. The Court has to examine this angle while quashing the FIR.

15. It is undoubted that pursuant to the compromise arrived at

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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.

16. 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".

17. In case of Gian Singh Vs. State of Punjab & Anr., reported in (2012) 10 SCC 303, the Hon'ble Apex Court has held as under:-

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"Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 CrPC is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 CrPC and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint under Section 482 CrPC is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.

The power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 CrPC. Inherent power is of wide plenitude with no statutory limitation but it hasto be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made

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compoundable in law, with or without the Court."

18. 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.

19. In the result, the application is allowed. The impugned complaint being C.R. No.11190004231432 of 2023 registered with Gadhada Police Station as well as all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside qua the applicants herein.

20. Rule is made absolute. Direct service is permitted.

21. 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) SHEKHAR P. BARVE