Bharatbhai Vashrambhai Mundhva vs State Of Gujarat
2023 Latest Caselaw 7596 Guj

                                                                              NEUTRAL CITATION




     R/SCR.A/11940/2023                          ORDER DATED: 13/10/2023

                                                                               undefined




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 11940 of 2023

==========================================================
                     BHARATBHAI VASHRAMBHAI MUNDHVA
                                  Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
MR UTPAL M PANCHAL(1075) for the Applicant(s) No. 1
MS SHAINI D GAJJAR(11219) for the Respondent(s) No. 2,3,4,5
MR DHAWAN JAISWAL APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                             Date : 13/10/2023

                              ORAL ORDER

Draft amendment is allowed. Registry to do the needful. 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.11191003230536 of 2023 with Khokhra Police Station for the offence punishable under Sections 306 of the Indian Penal Code and further proceedings arising thereof.

2. The short facts of the case are that deceased who was brother of the org. complainant had lodged the complaint inter alia stating that petitioner lent money to his brother to the tune of Rs.50,000/- on interest and it is alleged in the FIR that since the deceased could not repay the said amount, the petitioner was passing threat to the deceased of dire consequences and thereby harassing him and since the deceased could not bear such harassment, he committed suicide by throwing himself

NEUTRAL CITATION

R/SCR.A/11940/2023 ORDER DATED: 13/10/2023

undefined

before running train. Thus, the FIR came to be lodged as afore- stated.

3. Heard learned Advocates appearing for the respective parties.

4. Learned Advocate Ms.Shani D Gajjar appearing for org. complainant has placed on record the affidavit of the org. complainant-Mr.Gaurangbhai Gajjar alongwith relatives of the deceased viz., Kailashben, Rohitbhai and Dixitaben who are mother, father and wife respectively of the deceased 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.

5. 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

NEUTRAL CITATION

R/SCR.A/11940/2023 ORDER DATED: 13/10/2023

undefined

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 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.

5.1 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

NEUTRAL CITATION

R/SCR.A/11940/2023 ORDER DATED: 13/10/2023

undefined

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.

6. 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.

7. 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.

NEUTRAL CITATION

R/SCR.A/11940/2023 ORDER DATED: 13/10/2023

undefined

8. 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.

9. 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

NEUTRAL CITATION

R/SCR.A/11940/2023 ORDER DATED: 13/10/2023

undefined

fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation."

10. 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.

11. 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.

12. 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

NEUTRAL CITATION

R/SCR.A/11940/2023 ORDER DATED: 13/10/2023

undefined

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?

13. 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. It further exposes situation whereby in light of observations made in Daxaben (supra) this Court has decided the case on its own merits.

14. 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

NEUTRAL CITATION

R/SCR.A/11940/2023 ORDER DATED: 13/10/2023

undefined

approach to the matter based on ground of realities and benefit of the technicalities of the law".

15. 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.

16. In the result, the application is allowed. The impugned complaint being FIR registered as CR No.11191003230536 of 2023 with Khokhra 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 applicant is in jail, the jail authority concerned is directed to release the applicant forthwith, if not required in connection with any other case.

(J. C. DOSHI,J) sompura