Gujarat High Court

Chetanbhai Maheshbhai ... vs State Of Gujarat on 11 October, 2023

Bench: Sandeep N. Bhatt

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     R/CR.MA/20531/2019                                ORDER DATED: 11/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 20531 of 2019
                              With
           R/CRIMINAL MISC.APPLICATION NO. 1567 of 2020
                              With
          R/CRIMINAL MISC.APPLICATION NO. 18184 of 2019

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                   CHETANBHAI MAHESHBHAI CHANDEGARA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
MR MAUNISH T PATHAK(5892) for the Respondent(s) No. 2
MS MONALI BHATT, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 11/10/2023

                                 ORAL ORDER

1. Since all these petitions are filed against one complaint

by different accused persons, they are taken up for hearing

together and are disposed of by this common judgment. All

these petitions are filed with a prayer to quash and set

aside the complaint being C.R.No.I-140 of 2019 registered

before "B" Division Police Station, Rajkot City, qua the

present petitioners.

2. As per the facts of the case an FIR came to be filed

by respondent No.2 (Ori. Complainant) being C.R.No.1-140 of

2019 on 30.7.2019 before "B" Division Police Station, Rajkot

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City for offences punishable under Sections 306, 114 of

Indian Penal code inter alia stating that he is residing along

with his family at the address mentioned in the complaint

and his younger sister Jagruti was working in Mahavir

Imitation, Bhavnagar Road, Rajkot and on 9.4.2019, she died

at that place and she has friendship with Anil Mochhi and

Jagruti has lent amount to Anil by selling her golden chain.

It is further alleged in the complaint that on 9.4.2019 in the

morning at 7.30 hours, sister of the complainant, Jagruti

went to Mahavir Imitation for job and complainant also went

for his job at around 3 to 4 O'clock, two persons came at

the place of his job and told him that your sister is serious

and she has been admitted in the government hospital and

thereafter complainant went at Emergency Ward of

government hospital and doctor informed him that your sister

is under influence of poison and during the treatment she

died. It is further alleged that one Chetan Padaliya informed

to the complainant that sister of the complainant sold golden

chain through him and gave money to Anil Mochhi. It is

further alleged in the complaint that mother of the

complainant also told him that Jagruti told that Anil along

with his parents will come at our home and even before two

days of the death of Jagruti, Anil informed her that he will

come at her house. However, he did not come. It is further

alleged in the complaint that Jagruti remained under tension

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to recover money from Anil and she told to the complainant

that now Anil refused to marry with me and also refused to

give back money given to him. It is further alleged in the

complaint that Narendrabhai, owner of Mahavir Imitation and

Manager of Mahavir Imitation both has not paid salary to

Jagruti and removed her from job and also both of them

harassing her and Anil Mochhi has tempted Jagruti for

marriage and refused to give back money borrowed from her

and due to this she has committed suicide. With such

allegations, the complaint came to be filed.

3. Mr.Dagli, learned advocate for the petitioner has

submitted that on bare reading of the complaint, no offence

is made out, more particularly, when it is a case of one

sided love of the deceased towards one of the accused person

viz. Anil Mochi. He has submitted that, therefore, due to

some misunderstanding that has arisen on the part of the

deceased, she has committed suicide. He has submitted that

on bare reading of complaint, no offence is made out and no

ingredients of Section 107 are satisfied. He submitted that

there is no proximity with alleged incident and no role is

attributed to present applicants and, at the best, it can be

said that the deceased was having one side love towards Anil

Mochi.

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3.1 He has submitted that considering the settled position

of law, unless and until ingredients of abatement to commit

suicide are made out under Section 107, charge under Section

306 of IPC cannot be levelled against the accused persons. In

view of the judgment in the case of Hansraj v. State of

Haryana reported in 2004 (2) SSC 257, wherein Honourable

Apex Court has defined and discussed abetment to commit

suicide and further held that even in frequent quarrels

between husband and the wife, some time involves physical

assault on wife on account of husband's addiction to Bhang,

no evidence directly to establish that the husband had either

aided or instigated the deceased to commit suicide or enter

into any conspiracy to aid her in committing suicide. He has

also relied upon another decision in the case of Netai Dutt

Vs. State of West Bengal reported in 2005 SCC page 659,

wherein it is observed that there is absolutely no averment

in the alleged suicide note that the present appellant had

caused any harm to him or was in any way responsible for

delay in paying salary to the deceased Pranavkumar. It

seems that deceased was very much dissatisfied with the

working condition at the working place but it may also be

noticed that the deceased after his transfer in 1999 never

joined the office at 160, B. L. Shah Road, Calcutta, and

absented himself for a period of 2 years and the suicide took

place on 16.2.2001, therefore, it cannot be said that present

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appellant had in any way instigated the deceased to commit

suicide or he was responsible for the suicide of Pranavkumar

Nag.

3.2 He has further submitted that it is held time and

again by the Hon'ble Court that an offence under Sec.306

cannot be prosecuted unless it satisfies the ingredients of

abetment to commit suicide as defined under Sec. 107. It is

submitted that this was also again considered by Hon'ble

Apex Court in a case of G.M. Reddy Vs.State of Andhra

Pradesh reported in 2010 SCW 337, wherein paragraph-7 the

Hon'ble Apex court has considered as under:

"7. The word suicide in itself is nowhere defined in Indian Penal code. However its meaning and importance is well-known and requires no explanation. To sue means as "self" and "cide" killing. Thus implied to an act of self killing. In short, person commit suicide must commit it by himself irrespective of the means employed by him in achieving his object or killing himself.

8. Suicide by itself is not an offence under either English or Indian Criminal Law though at one time it was in England is in England the former law was of

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the nature of being deterrent to believe as it provided penalties of two types;

(i) degradation of corpse of the deceased by burying it on the highway with a stake through its chest

(ii) forfeiture of the property of the deceased by State. The Hon'ble Apex Court has also considered the ingredient of offence under Sec.107 and thereafter has considered the various pronouncements of the apex court and held that human sensitivity of each individual differs from one to other and different people behaves differently in the same situation. The Hon'ble Apex court has also considered in paragraph-20.

...............

20. Abetment involves mentally frequent instigating a person or intentional aiding of a person in doing of thing. That a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.

21. The intention of the legislature and the ratio of the case decided by this Hon'ble Court is clear that in

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order to convict a person under Sec.306 of IPC there has to be effect mentally to commit offence. It also requires an active or direct act which lead the deceased to commit suicide seeing no option. No application of this act must have been intended to or the deceased into such a position that he committed suicide."

3.3 He has also relied upon the decisions reported in 2005

(3) GLH 444, M.Arjunan v. State reported in 2019 (3) SCC

315. He has lastly relied upon decision in the case of

Paramjeetsingh Chawala v. State of MP reported in 2007

Cri.L.J. 3343 and has submitted that considering the facts of

present case and in view of settled legal position, present

complaint may be quashed.

3.4 He has further submitted that the allegations made in

the complaint are is not sufficient to implicate the present

petitioners in the offences punishable under Section 306 and

114 of IPC. He therefore prays to allow these petitions, as

the complaint is filed for the purpose of seeking vengeance of

death of his sister by the complainant and continuation of

the complaint will amount to abuse of process of law.

4. On the other hand, Mr.Maunish Pathak, learned

advocate for the complainant has submitted that the

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complainant is present before this Court. On earlier occasion

also, the complainant was present before this Court. He has

strongly opposed the submissions made by Mr.Dagli by

submitting that prima facie material is found against the

present petitioners, which connects at least Anil Mochi with

the incident. He has also submitted that one Mr.Chetan

Padaliya has informed the complainant that his sister has

sold a golden chain to him and paid the amount to said Anil

Mochi. These factors are relevant for consideration. He has

further submitted that considering this fact, it can be said

that there was some instigation or harassment caused by the

accused-Anil Mochi and other persons who are named in the

FIR and they have taken active participation in the

commission of offence and, therefore, the contention raised by

the petitioners cannot be accepted at this stage. He has also

submitted that the petitioners can take these submissions as

their defence during trial and prima facie ingredients of

offence under Sections 306 and 114 of IPC are satisfied. He

has relied upon a decision in the case of Mahendra K.C. v.

State of Karnataka and Another reported in (2022) 2 SSC

129.

5. Considering the papers of investigation, prima facie, it

is found that there was no love affair between Anil Mochi

and deceased Jagruti. It is found that Jagruti was having

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one sided affection towards said Anil Mochi and as Anil

Mochi was to marry with another lady, the deceased decided

to leave that job. It is also found that the deceased Jagruti

was paid the salary regularly by Mahavir Imitation and,

therefore, there was no harassment from anywhere to the

deceased.

6. Learned APP, Ms. Monali Bhatt, has accepted the

submissions made by learned advocate for the complainant

and submitted that prima facie case is made out against the

present petitioners considering the allegations made in the

complaint. She has, therefore, prayed to dismiss present

petitions.

7. I have considered the rival submissions made by the

parties. I have also considered the judgments cited at bar. I

have also considered the provisions of sections 306, 107 and

114 of IPC which are as under:-

"107. Abetment of a thing.

A person abets the doing of a thing, who--

First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or

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illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing.

.................

114. Abettor present when offence is committed.

Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence. ...........

306. Abetment of suicide.

If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

8. Considering the nature of allegations and considering

the papers of investigation prima facie it reveals that though

Jagruti has committed suicide by consuming poison, it seems

that she was having some affection with Anil Mochi, which

was one sided, and accused-Anil Mochi was not responding to

her. He was to marry with another lady and, therefore, the

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deceased Jagruti got frustrated and committed suicide. Prima

facie there is no direct material which connects present petitioners with the offence and ingredients of Section 107

are not satisfied, therefore, it cannot be said that offence

under Section 306 is made out in the facts of the present

case against the accused persons.

9. There are allegations levelled against other two accused

persons, however, there is nothing to support such

allegations. It seems that considering the gravity of the

offence at the relevant point of time the complaint was

lodged under pressure from the relatives of the deceased.

Accordingly, the complaint is lodged and investigation is

carried out, however, it transpires from investigation that

there is no proximity of the accused with the unfortunate

incident of suicide. It is true that the deceased was serving

at Mahavir Imitation where Anil Mochi was also serving,

however, that itself is not sufficient to connect him with the

unfortunate incident.

10. In the case of Sanju v. State of Madhya Pradesh

reported in 2002 (5) SCC 371 in paragraphs 12 and 13, it is

observed as under:

"12. In Ramesh Kumar v. State of Chhattisgarh MANU/

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SC/0654/2001 : 2001 CriLJ 4724, this Court while considering the charge framed and the conviction for an offence under Section 306 I.P.C. on the basis of dying declaration recorded by an Executive Magistrate , in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said:

"A word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found

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guilty."

13. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25th July, 1998 wherein it is alleged that the appellant had used abusive language and had reportedly told the deceased 'to go and die'. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die'. Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of

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instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25th July, 1998 ensued by quarrel. The deceased was found hanging on 27th July, 1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1998 drived the deceased to commit suicide. Suicide by the deceased on 27 th July, 1998 is not proximate to the abusive language uttered by the appellant on 25th July, 1998. The fact that the deceased committed suicide on 27th July, 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25th July, 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below."

11. It is also relevant to refer to the judgment of a co-

ordinate Bench passed in Criminal Misc. Application No.

22198 of 2018, wherein it is observed as under:

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"9.2 I have also considered the fact that in respect of the very same FIR, while considering the merit of the matter, a co-ordinate Bench of this Court while considering the case of Nileshbhai Arvindbhai Gandhi in Criminal Misc. Application No.13010 of 2018. In paragraphs 11, 12, 13, 14 and 15 of the CAV judgment dated 17.2.2020, it is observed as under:

"11. To constitute an offence u/s 306 of the IPC, it has to be established that a person committed suicide and that such suicide was abetted by the accused. An offence u/s 306 would stand only if there is an "abetment" for the commission of the crime. The parameters of abetment have been stated in section 107 of the IPC. In order to prove that the accused abetted commission of suicide by a person, it has to be established that accused kept on irritating or annoying the deceased by words, deeds or willful omission or conduct which may even be a willful silence until the deceased reacted or pushed or forced the deceased by his deeds, words, or willful omission or conduct to make the deceased move forward in a direction and secondly that the accused had intention to

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provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above.

The definition of "abetment" as given in section 107 of the IPC not only includes instigation, but also intentional aiding by an illegal omission. 12 Bearing in mind the scope of provisions of sections 306 and 107 the IPC, if we analyzed the scrutinized the FIR and other material as it is, does not disclose with any qualified clarity to come to conclusive finding that the applicant's unassailable finding of culpability u/s 306 of the IPC. The material on record and facts of the case as asserted in the application do not indicate prima facie any act of cruelty or harassment mentally or physically so as to persistently/continuously provoke the deceased to take extreme steps with no other option. No such persistent or consistent applicant's conduct, which requires culpability, is found in the present case, more particularly, from the averments/allegations made in the FIR itself. The facts, as brought on record, clearly indicate that the contract between the applicant and the deceased came to be terminated on account of slowness of the work on 8.7.2013 and the deceased was paid the money

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under work contract and such payment was made as far back as in the year 2013 itself. Such fact reflects in the TDS form No.16A and also in the ledger account of the deceased contractor. So, in absence of any contractual relationship between the parties, more particularly, applicant - original accused No.6 and the deceased during the interregnum period from the date of termination of contract till the date he committed suicide and in absence of any steps taken by the deceased to ventilate any grievance on the order of termination of contract or nonpayment of any money under the contract and in absence of any legal proceedings being filed or initiated by the deceased, there cannot be any instigation by the applicant. Apart from it, there is no proximity or reasonable link between the commission of suicide and act attributed to the applicant - original accused No.6.

13. Thus, bare reading of complaint does not reveal any instigation by the applicant herein in a manner, which can be said to have pushed the deceased to take extreme steps of ending of his life. The complaint does not mention any specific instance of any instigation or doing of any act by

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the applicant, which can be said to cause any pressure upon the deceased so as to end his life. Thus, looking to the allegations made in the FIR vis-a-vis uncontroverted facts asserted and averred in the present petition u/s 482 of the Code of Criminal Procedure, 1973, there is no iota of evidence that the deceased ever visited the applicant's company for his alleged dues either immediately before the date of her husband committing suicide or even after termination of the work order till the date of suicide.

14. In light of this position and material on record, prima facie, no any case is made out to infer occurrence of any offence u/s 306 of the IPC, as alleged in the FIR and considering over all facts and circumstances of the case, present Criminal Misc. Application deserves to be accepted.

15. Resultantly, this application is allowed. Impugned F.I.R. being C.R.No.I-32 of 2018 registered with Vadodara Taluka Police Station for the offence u/s 306 and 114 of the IPC and other consequential proceedings arising out of the impugned FIR is hereby quashed and set aside

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qua present applicant only. Rule is made absolute to the aforesaid extent. Direct service is permitted."

9.3 Considering the fact that in respect of identically situated person, a coordinate Bench has quashed the FIR and further proceedings by making the aforesaid observations, and therefore, the case of the applicant of Criminal Misc. Application No.14677 of 2018 would be squarely covered by the aforesaid CAV Judgment dated 17.2.2020 in the case of Nileshbhai Arvindbhai Gandhi. As far as the case of Rameshbhai Babubhai Patel, applicant of Criminal Misc. Application No.22198 of 2018 is concerned, it is alleged in the FIR that he was the one who uttered those words and instigated the deceased to commit suicide. Therefore, the case of Rameshbhai Babubhai Patel, applicant of Criminal Misc. Application No.22198 of 2018, is required to be examined in light of the observations made in paragraphs 12 and 13 of judgment of the Hon'ble Apex Court in the case of Sanju (supra) and it would make it abundantly clear that the case of the applicant of Criminal Misc. Application No.22198 of 2018 would be squarely covered by the judgment of the Hon'ble Apex Court in the case of Sanju (supra)."

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12. Considering the above stated legal position and

considering the fact that there is no evidence which connects

present petitioners with the alleged offence under Section 107

and 306 of IPC, no prima facie case is made out against

them. In view of the material available on record and

considering the papers of investigation, I am of the opinion

that continuation of the proceedings pursuant to the

impugned complaint against the present petitioners will

amount to abuse of process of law.

13. At this stage, this Court may refer to the observations

of the Hon'ble Supreme Court in the case of State of

Haryana V/s Bhajan Lal reported in AIR 1992 SC 604,

wherein the Hon'ble Supreme Court has illustrated the cases

wherein inherent powers under Section 482 of the Criminal

Procedure Code could be exercised either to prevent abuse of

the process of any court or otherwise to secure the ends of

justice and observed as under:-

"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have

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extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec.156(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

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14. It is also relevant to refer to the judgment of the

Hon'ble Apex Court in the case of Inder Mohan Goswami and

Another versus State of Uttaranchal reported in (2007) 12

SCC 1, more particularly para : 23 & 24 thereof, which read

as under :

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:

[(i) to give effect to an order under the Code;] [(ii) to prevent abuse of the process of court, and] [(iii) to otherwise secure the ends of justice.]

24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."