Chiragkumar Mahendrabhai Patel vs State Of Gujarat
2024 Latest Caselaw 870 Guj

Gujarat High Court

Chiragkumar Mahendrabhai Patel vs State Of Gujarat on 1 February, 2024

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      R/CR.MA/935/2024                           ORDER DATED: 01/02/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 935
                           of 2024

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                     CHIRAGKUMAR MAHENDRABHAI PATEL
                                  Versus
                            STATE OF GUJARAT
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Appearance:
VISHAL K ANANDJIWALA(7798) for the Applicant(s) No. 1
MR KISHAN BRAHMBHATT for MR MOHMEDTAUKIRKHAN M
PATHAN(12797) for the Complainant
MR HK PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                             Date : 01/02/2024

                              ORAL ORDER

1. By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.11204045230665 registered with Nadiad Rural Police Station.

1.1 The short facts of the case as emerging from the FIR are that husband of the original informant was a practicing doctor at Marida Bhagol at his clinic namely Ruzu Clinic. It is further alleged that with a view to earn more money, the husband of the original informant was also doing work related to obtain Visa for people via Agent who were desirous to go at London and thereby he was sending people at London. It is further alleged that the husband of the original informant took Rs.57,00,000/- from 6

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clients and gave it to accused no.1 for obtaining Visa for those clients for London. It is further alleged that the husband of the original informant took Rs.53,00,000/- from 3 clients and gave it to accused no.2 for obtaining Visa for those clients for London. It is further alleged that though the accused nos. 1 and 2 took money, he did not obtain Visa and did not send clients to London and also did not repay the money to Kailashbhai Husband of the Original informant, and because of that the clients were demanding money from Kailashbhai. It is further alleged that accused no.3 gave Rs. 21,00,000/- to Kailashbhai and though, Kailashbhai has repaid Rs. 31,00,000/- to accused no.3, he was demanding more Rs. 9 ,00,000/- and was threatening and torturing Kailashbhai Husband of Original informant. It is further alleged that accused no.4 took Rs. 18,00,000/- from Kailashbhai and the same was not repaid by accused no.4 and was giving excuses and thereby was giving mental torture to Kailashbhai. It is further alleged that Kailashbhai has given Rs.22,00,000/- to accused no.5 and he has not repaid the same amount and thereby gave mental torture and tension to Kailashbhai. It is further alleged that accused nos. 6 and 7 took Rs. 14,00,000/- from Kailashbhai for the purpose of helping Mahadev Yogi to get government job, however, neither they fulfilled their promise nor they returned the said amount and thereby Kailashbhai lost financial assistance and due to such harassment and torture, the deceased Kailashbhai Husband of the orig. informant consumed poison on 21.11.2023 at around 19:30 hours, and thereafter, he was taken to Mahagujarat Hospital, Nadiad as well as to Shrikrushan Hospital for medical treatment and on 25.11.2023

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at 08:05 hours Kailashbhai was declared dead, thus, it is alleged that the orig. accused persons have committed the alleged offences. With the aforesaid and other allegations, the F.I.R. is registered against the present applicant. Hence, the present FIR came to be filed.

2. Learned advocate for the petitioner would further submit that the FIR is delayed by almost one year. He would further submit that as per case of prosecution, since the deceased was not in a position to repay the amount to the petitioner, which he has lent to him, the deceased has committed suicide and therefore, ingredients of offence u/s 306 of the IPC is not attracted. He would further submit that it is an admitted position that the deceased was a practicing doctor and he was doing this side work only for the purpose of earning money and by receiving money from the clients, he used to forward it to the original accused Nos.1 and 2 to obtain visa/work permit to send his clients abroad and as those people duped the deceased, he could not return back the amount lent to him by his clients and therefore, on their demand, out of pressure, he took this drastic step of committing suicide. Thus, there is no direct or indirect involvement of the petitioner or instigation, which lead committal of suicide by the deceased. He would further submit that the entire whatsapp conversation clearly suggest that it was the petitioner who was duped by the deceased. For that, the deceased has also apologized the petitioner for his willful act. The entire conversation clearly suggests that on the contrary, the petitioner became the scapegoat of the deceased. The petitioner is ready and wiling to cooperate the investigation. He is

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permanent residence of Anand. He holds/possesses movable and immovable property. Hence, there is no flight-risk. Thus, he submits that considering the nature of allegations, role attributed to the petitioner, the petitioner may be enlarged on anticipatory bail by imposing suitable conditions.

3. On the other hand, learned advocate for the first informant would submit that there was a suicide note in which the deceased has made allegation of threat being given by the petitioner to him and therefore, the deceased remained under pressure and tension. He would further submit that despite the fact that the deceased paid all the amount, the petitioner demanded more money from the deceased and therefore, on account of the pressure and threat, the deceased committed suicide. He would further submit that the police investigation is in progress and therefore, custodial interrogation of the petitioner is required. Upon such submission, he requests to dismiss the petition.

3.1 Adopting the submissions of learned advocate for the first informant, learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of anticipatory bail looking to the nature and gravity of the offence.

4. Heard the learned Advocates for the respective parties and perused the papers.

5. Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and

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strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon'ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. I have considered the following aspects.

(1) The incident took place on 21.11.2023 for which FIR is filed on 4.12.2023.

(2) The entire whatsapp conversation clearly suggest that it was the petitioner who was duped by the deceased. For that, the deceased has also apologized the petitioner for his willful act.

The entire conversation clearly suggests that on the contrary, the petitioner became the scapgoat of the deceased. (3) The entire conversation clearly suggests that there was not a single threat administered to the deceased by the petitioner herein.

(4) Except verbal allegations, nothing is mentioned against the petitioner in the FIR so as to implicate him in the commission of

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the offence.

(5) There is nothing on record to show that any continuous harassment was ever meted out to the deceased by the petitioner. Simple demand of hard earned money by the petitioner does not constitute an offence. (6) The petitioner had paid the amount to the deceased for obtaining work permit and visa to go UK. Once the petitioner realized that the deceased is not able to send him UK, he started demanding money and also got back around Rs.6 lakh from the deceased. Thus, it implies simple financial transaction between the deceased and the petitioner.

(6) In the judgment of the Hon'ble Apex Court reported in AIR 2011 SC 1238 in case of M. Mohan v. State Represented by the Deputy Superintendent of Police, the Hon'ble Apex Court having referred to the earlier judgment, has made the observations regarding the ingredients of Section 306 IPC, referring to the word 'suicide', which can be read as follow.

"If the provisions for the offence under Section 306 are considered, it is evident that the basic ingredient regarding the intentional instigation are required to be proved or established. The word 'suicide' has not been defined. The word 'suicide' would mean the intentional killing of oneself. As per Concise Oxford Dictionary, 9th Edition, p.686, "A finding of suicide must be on evidence of intention. Every act of self destruction is, in common language described by the word 'suicide' provided it is an intentional act of a party knowing the probable consequence of what he is about. Suicide is never to be presumed. Intention is the essential legal ingredient." [emphasis supplied]

Therefore, while considering this aspect, the provisions of Section 306 read with Section 107 regarding the

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abetment and the suicide has to be considered. In other words, there has to be necessary evidence by which it could be said that the respondent accused had instigated the deceased in such a manner or by creating the circumstances, which has led the deceased to commit suicide."

6. Having heard the learned counsel for the parties and perusing the record of the case and taking into consideration the facts of the case, nature of allegations, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to exercise discretion in favour of the petitioner.

7. This Court while exercising discretion in favour of the petitioner has taken into consideration law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. [2011] 1 SCC 694, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitutional Bench in the the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab (1980) 2 SCC 665. This Court has also taken into consideration law laid down in the case of Sushila Agarwal v/s. State (NCT of Delhi [(2020) 5 SCC 1].

8. In the result, the present petition is allowed by directing that in the event of applicant herein being arrested pursuant to FIR registered as C.R.No.11204045230665 registered with Nadiad Rural Police Station, the petitioner shall be released on bail on furnishing a personal bond of Rs. 10,000/- (Rupees Ten Thousand only) with one surety of like amount on the following conditions that the petitioner :

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(a) shall cooperate with the investigation and make himself available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 13.2.2024 and 14.2.2024 between 10.00 a.m. and 4.00 p.m.;

(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer;

(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change residence till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week;

9. If breach of any of the above conditions is committed by the petitioner, the concerned learned Judge will be free to take appropriate action in the matter. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the petitioner on bail.

Direct service is permitted.

(J. C. DOSHI,J) SHEKHAR P. BARVE