Gujarat High Court
Alpesh Bhupatsinh Bihola vs State Of Gujarat on 19 October, 2023
Bench: J. C. Doshi
NEUTRAL CITATION
R/CR.MA/7972/2022 ORDER DATED: 19/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 7972 of 2022
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ALPESH BHUPATSINH BIHOLA
Versus
STATE OF GUJARAT
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Appearance:
MR SANJAY PRAJAPATI(3227) for the Applicant(s) No. 1
ANKIT M MODI(7418) for the Respondent(s) No. 2
MR KISHAN R CHAKWAWALA(9846) for the Respondent(s) No. 2
MR TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 19/10/2023
ORAL ORDER
1. Learned advocate Mr.Viraj Hargovindbhai Desai submits
that he has instructions to appear for the original complainant,
wife of deceased, mother of deceased and father of deceased and
he will file Vakalatnama. Registry to accept the same.
2. By this application under Section 482 of the Code of
Criminal Procedure (for short "the Code"), the applicant seeks
quashing of the FIR registered as I-C.R.No.11216005220146 of
2022 with Dahegam Police Station, Gandhinagar for the offence
punishable under Sections 306, 114 of the Indian Penal Code,
section 33(a)(b) of Gujarat Money Lenders Act and further
proceedings arising thereof.
3. Heard learned Advocates appearing for the respective
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parties.
4. Learned Advocate Mr.Viraj Desai appearing for org.
complainant has placed on record the affidavit of the org.
complainant-Mr.Sagarsinh Siddhrajsinh Rathod, alongwith
relatives of the deceased viz., Mayaben, Sitaben and
Siddhrajisinh who are having blood relation with 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 in view of the compromise between the parties
and when same has not been secured through coercion, threat
or inducement, no prima facie case is made out against the
applicants for the alleged offence and therefore, no useful
purpose would be served by continuing the proceedings as
possibility of the accused being convicted for the alleged offence.
Continuation of FIR and subsequent proceeding would be
unnecessary harassment and futile exercise.
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6. It is further submitted on merits that even if the allegations
leveled in the FIR are accepted on its face value, it does not make
out the case for commission of the alleged offence of suicide.
Relying on the case of Chitresh Kumar Chopra Vs. State of NCT
of Delhi (2009 (16) SCC 605) , it is 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
seeing no option and this act must have been intended to push
the deceased into such a position that he/she committed
suicide. Merely on allegations of harassment without their being
any positive action, proximate to the time of occurrence, on the
part of the accused, which led or compel the deceased to commit
suicide, the charge in term of Section 306 of the IPC is not
sustainable.
7. It is also jointly stated that the allegations against the
applicant, so far act of harassment and cruelty is concerned, are
extremely general in nature and no specific role being assigned
to them and therefore, the allegations are not sufficient to attract
the provisions of IPC and Gujarat Money Lenders Act.
8. It is also jointly submitted that as the allegations are
withdrawn by the complainant and the witnesses against the
accused, there is a bleak chance of conviction or rather there is
no chance of conviction and therefore in view of decision of
Hon'ble Apex Court in case of B S Joshi & Ors. Vs. State of
Haryana [(2003) 4 SCC 675], it would be improper to decline to
exercise the power of quashing on the ground that it would be
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permitting the parties to compound the non-compoundable
offence. Learned Advocate for both the sides jointly pressed into
service the decision in case of Nikhil Merchant vs. Central
Bureau of Investigation and Anr., [2008 9 SCC 677] to contend
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.
9. Upon above submissions made by learned Advocates for
the accused and complainant, it is requested to quash the FIR
and subsequent proceedings.
10. 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 to contend that even if the
settlement has taken place, the court is lacking the jurisdiction
to quash the FIR registered under Section 306 of the IPC, as 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 therefore submit to
dismiss the petition.
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11. 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.
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
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.
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14. Principal contention in the FIR is regarding the alleged
offence under Section 306 of the IPC whereby it is alleged that
the deceased was subjected to physical and mental cruelty at the
hands of the accused and has ignited the deceased to commit
suicide. Essential ingredients of offence under Section 306 of
the IPC are physical and mental cruelty to which the deceased
was subjected and abetement by which the deceased was
instigated to commit suicide. General wear and tear of the life
cannot be considered as physical or mental cruelty or
harassment. The abetment involves a mental process of
instigating a person or intentionally aiding a person in doing of a
thing. Without a positive act on the part of the accused to
instigate or aid in committing suicide conviction cannot be
sustained. The abetment is defined in Section 107 of the IPC. To
prove the offence under Section 306 of the IPC, the prosecution
is required to prove that deceased was instigated to commit
suicide as the instigation is essential to complete abetment of a
crime. Instigation means to goad, urge forward, provoke, incite
or encourage to do an act.
15. Reading of the FIR and perusing the averments made
therein prima facie indicates that necessity of establishing the
offence under Section 306 of the IPC are lacking. To be noted
that, the deceased has not filed any complaint on previous
occasion against the accused alleging that he was subjected to
mental and physical harassment. The allegation made in the FIR
at the face of it does not constitute the basic ingredients of
Section 306 of the IPC.
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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. 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] , this Court is
inclined to quash the FIR.
18. It is to be noted that Co-ordinate Bench has released other
co-accused vide Criminal Misc. Application No.11894 of 2023,
Criminal Misc. Application No.12653 of 2023 and Special
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Criminal Application No.9372 of 2023.
19. In the result, the application is allowed. The impugned
complaint being I-C.R.No.11216005220146 of 2022 with
Dahegam Police Station, Gandhinagar as well as all
consequential proceedings initiated in pursuance thereof are
hereby quashed and set aside qua the applicant 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)
SATISH
