Jankiben Rajeshkumar Popatlal Patel vs State Of Gujarat
2024 Latest Caselaw 1536 Guj

Gujarat High Court

Jankiben Rajeshkumar Popatlal Patel vs State Of Gujarat on 20 February, 2024

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     R/CR.MA/3360/2024                                  ORDER DATED: 20/02/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
                         3360 of 2024

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                 JANKIBEN RAJESHKUMAR POPATLAL PATEL
                                 Versus
                        STATE OF GUJARAT & ANR.
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Appearance:
MR NV GANDHI(1693) for the Applicant(s) No. 1
for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:                   HONOURABLE MR. JUSTICE J. C. DOSHI
                              Date : 20/02/2024
                               ORAL ORDER

Rule. Learned APP waives service of rule for Respondent No.1- State.

1. By way of this application, filed under 439(2) of the Code of Criminal Procedure, 1973 (in brief, 'the Code'), the applicant-first informant seeks to assail the order dated 29.01.2004, passed in CR.M.A. (Anticipatory Bail) No. 235 of 2024, by the learned 2 nd Additional District & Sessions Judge, Ahmedabad Rural, granting anticipatory bail to the respondent-accused in connection with the offence registered with the Changodar Police Station, District: Ahmedabad, being C.R. No. I-11192015240078 of 2024 for the offences punishable under Sections 206, 506(2) and 114 of the Indian Penal Code, 1860.

2. Learned Advocate, Mr. Gandhi, for the applicant would submit that the learned trial Court has not taken into

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consideration the seriousness of the offence, punishable under Section 306 of the IPC, while granting bail to the respondent- accused, which is one of the main basic elements to grant bail. He would further submit that in the present case, on account of the issuance of constant threats by the accused persons, including Respondent No.2, the deceased consumed pesticide on 20.12.2023 and he breathed his last, while undergoing treatment at hospital, on 13.01.2024. It was, further, submitted that, though, the deceased had already repaid Rs.1.35/- crore to the accused persons, they were demanding more amount and for which, they allegedly issued threats to the deceased, which led him to take the extreme step. It was submitted that the concerned Court granted bail, just within a few days from the date of the registration of the FIR. It was submitted that what appears to have weighed with the concerned Court is that Respondent No.2 does not have any criminal antecedents and thereby, granted bail to him. It was submitted that considering the fact that the investigation was at initial stage, the concerned Court ought not to have granted bail to Respondent No.2. He would further submit that the impugned order is an unreasoned order and concerned Court has failed to notice and observe the well settled principles for grant and refusal of bail. Hence, it was prayed to allow this petition.

3. On the other hand, learned APP adopted the arguments advanced by the learned Advocate for the applicant and prayed that the appropriate orders may be passed in the facts and circumstances of this case.

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4. Having heard the learned Advocates appearing for the respective parties and having perused the impugned order, at the outset, it would be relevant to refer to the observations made by the concerned Court at Paragraph-7 of its order dated 29.01.2024, where, it is observed that the alleged offence took place on 16.12.2023, whereas, the FIR came to be filed only on 19.01.2024. The concerned Court also found that Respondent No.2 does not have any criminal antecedents and he being a permanent resident of the State of Gujarat, there is no risk of his either tampering with the evidence or hampering the trial. The concerned Court also observed that, since, there is nothing to be recovered or discovered from Respondent No.2, his custodial interrogation would not be necessary and granted bail to him.

4.1 At this stage, learned Advocate, Mr. Gandhi, submitted that the relatives of the deceased since were engaged in the treatment of the deceased, they did not file FIR at the relevant point of time, however, they had given an application to the concerned Superintendent of Police.

4.1.1 Be that as it may, from the FIR, it is further revealed that the petitioner remained in the hospital as indoor patient from 16.12.2023 to 01.01.2024, i.e. the day when he breathed his last. During the aforesaid period, prima facie, it appears that no criminal prosecution was launched against the accused persons. Even if, we take that the offence took place on 01.01.2024, i.e. on the day when the deceased breathed his

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last, then also, the FIR came to be lodged on 19.01.2024, i.e. after a delay of about 18 days.

4.2 A perusal of the material on record, more particularly, the FIR, it appears that the accused, including Respondent No.2, were demanding back the amount lent by them to the deceased and mere demanding of outstanding dues cannot be treated as an instigation, which could have led the deceased to commit suicide. It also transpires from the record that out of the total outstanding amount, the deceased had already repaid Rs.1.35/- crore to the accused persons and, as per the allegations in the FIR, the accused were still demanding some more amount. Under the circumstance, the essential ingredients of Section 107, read with Section 306, of the IPC are not made out. In fact, what appears is that the cancellation of bail is sought on the ground that the concerned Court granted bail on untenable grounds. It is to be noted that, offence alleged to have been committed by the accused persons is in regard to Sections 306, read with Section 114, of the IPC. In the present case, as discussed herein above, the learned advocate for the petitioner failed to point out that the accused has misused the liberty, granted by the Court concerned or any other supervening circumstances, so as to prompt this Court to cancel the bail granted to Respondent No.2.

4.3 At this juncture, I may refer to decision in case of Mohit Singhal & Anr. vs. The State of Uttarakhand & Ors., rendered in Criminal Appeal No.3578 of 2023 by the Hon'ble

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Apex Court in regards to allegation of committal of suicide for demanding money and for the offence under Section 306 of the IPC following view is taken by the Hon'ble Apex Court. Paragraph 7 to 10 reads thus:

"7. The suicide note records that the third respondent had borrowed a sum of Rs.60,000/-. According to the deceased, he had paid more than half of the amount to Sandeep. The suicide note records that as he could not pay the rest of the money, the first appellant came to his house and started abusing him. He stated that the first appellant had assaulted him, and therefore, he complained to the police. He further noted that the business of giving money on interest was prospering. He stated that the third respondent is not a prudent woman, and due to her habit of intoxication and due to her conduct, she got trapped in this. In the suicide note, it is further stated that the first appellant has made his life a hell

8. According to the complaint of the third respondent, the incident in her shop of the first appellant threatening and assaulting her and her husband was on 15th June 2017. After that, notice under Section 138 of the Negotiable Instruments Act, 1881, was issued by Sandeep to the deceased on 27th June 2017. The suicide note was written three days after that, on 30th June 2017. The deceased committed suicide three days thereafter. Neither in the complaint of the third respondent nor in the suicide note, it is alleged that after 15th June 2017, the appellants or Sandeep either met or spoke to the third respondent and her deceased husband. Section 306 of the IPC makes abetment to commit suicide as an offence. Section 107 of the IPC, which defines the abetment of a thing, reads thus:

"Section 107 -- Abetment of a thing.- A

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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 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. Explanation 1.-- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing." (underline supplied)

9. In the facts of the case, secondly and thirdly in Section 107, will have no application. Hence, the question is whether the appellants instigated the deceased to commit suicide. To attract the first clause, there must be instigation in some form on the part of the accused to cause the deceased to commit suicide. Hence, the accused must have mens rea to instigate the deceased to commit suicide. The act of instigation must be of such intensity that it is intended to push the deceased to such a position under which he or she has no choice but to commit suicide. Such instigation must be in close proximity to the act of committing suicide.

10. In the present case, taking the complaint of the third respondent and the contents of the suicide note as correct, it is impossible to conclude that the appellants instigated the deceased to commit suicide by demanding the payment of the amount borrowed by the third respondent from her husband by using abusive language and by assaulting him by a belt for that purpose. The said incident allegedly happened more than two weeks before the date of suicide.

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There is no allegation that any act was done by the appellants in the close proximity to the date of suicide. By no stretch of the imagination, the alleged acts of the appellants can amount to instigation to commit suicide. The deceased has blamed the third respondent for landing in trouble due to her bad habits."

4.4 In 'Bhagwan Singh v Dilip Kumar @ Deepu @ Depak', reported in 2023 INSC 7613, the Hon'ble Apex Court after considering judgments in case of 'Dolat Ram v State of Haryana', (1995) 1 SCC 349; 'Kashmira Singh v Duman Singh', (1996) 4 SCC 693 and 'X v State of Telangana', (2018) 16 SCC 511, held as follows:

"13. It is also required to be borne in mind that when a prayer is made for the cancellation of grant of bail cogent and overwhelming circumstances must be present and bail once granted cannot be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it in conducing to allow fair trial. This proposition draws support from the Judgment of this Court in Daulat Ram and others v. State of Haryana reported in (1995) 1 SCC 349, Kashmira Singh v. Duman Singh (1996) 4 SCC 693 and xxx v. State of Telangana (2018) 16 SCC 511.'

4.5 With profit, I may also refer the observations made in the recent decision by the Hon'ble Apex Court in case of

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'Kekhriesatuo Tep and others Vs.National Investigating Agency' reported in (2023) 6 SCC 58. The relevant observation made in Paragraph-19 reads as under:-

"The Special Judge has himself distinguished cases of the persons who have indulged into extortion for furthering the activities of the organisation and red the persons like the present appellants, who were government servants, and er, compelled to contribute the amount. Hence, it cannot be said that the prima ell facie opinion, as expressed by the Special Judge, could be said to be perverse or impossible."

4.6 Thus, the petitioner has failed to make out a case, which permits this Court to interfere with the impugned order granting bail to the accused. No reasons or supervening circumstances or grounds are made out warranting interference with the order of granting bail.

5. In the result, present petitions fail and stands dismissed. It is needless to say that the observations made herein above are prima facie in nature and, at the time of trial, the concerned Court shall not be influenced by the same. Rule is discharged.

(J. C. DOSHI,J) UMESH/-