Gujarat High Court
Sajid Nazimuddin Shaikh vs State Of Gujarat on 27 October, 2023
Bench: J. C. Doshi
NEUTRAL CITATION
R/SCR.A/13944/2023 ORDER DATED: 27/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 13944 of 2023
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SAJID NAZIMUDDIN SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
MR ALTAFHUSEN I DUDHWALA(12126) for the Applicant(s) No. 1
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 : 27/10/2023
ORAL ORDER
1. Learned advocate Mr. Suresh Chauhan states that he has
instructions to appear on behalf of the original complainant
and thereby, seeks permission to file his Vakalatnama, which is
granted. Heard learned advocates for the respective parties.
2. Rule. Learned advocates waive service of note of rule on
behalf of the respective respondents.
3. By this application under Section 482 of the Code of
Criminal Procedure (for short "the Code"), the applicant seek
quashing of the FIR registered as CR No.11196035230539 of
2023 with Vadi Police Station, Vadodara for the offence
punishable under Sections 306, 506(2) and 114 of the Indian
Penal Code, sections 40 and 42 of Gujarat Money Lenders Act
and further proceedings arising thereof.
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3. Heard learned Advocates appearing for the respective
parties.
4. Learned Advocate appearing for org. complainant has
placed on record the affidavit of the org. complainant-
Mr.Saiyed Mohmadsiddik and mother of deceased - Nasimbau
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 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 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
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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.
8. Upon above submissions made by learned Advocates for
the accused and complainant, it is requested to quash the FIR
and subsequent proceedings.
9. 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.
10. 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
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read with Section 482 of the Code.
11. 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?
12. 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.
13. 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
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R/SCR.A/13944/2023 ORDER DATED: 27/10/2023
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commit suicide. Essential ingredients of offence under Section
306 of the IPC are subjected to 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.
14. 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 is 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. What appears from the FIR is that
allegation is made against the petitioner of abatement to
commit suicide. It reveals that name of petitioner is unfurled in
the statement of co-accused. Since there is wroth word of
abatement to commit suicide against present petitioner, case
deserves consideration on merits.
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15. 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".
16. 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.
17. In the result, the application is allowed. The impugned
complaint being CR No.11196035230539 of 2023 with Vadi
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Police Station, Vadodara 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
