Bhikhaji @ Bhikhubha Khodaji Vaghela vs State Of Gujarat
2024 Latest Caselaw 943 Guj

Gujarat High Court

Bhikhaji @ Bhikhubha Khodaji Vaghela vs State Of Gujarat on 5 February, 2024

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     R/CR.MA/1293/2024                                  ORDER DATED: 05/02/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL - AFTER
                 CHARGESHEET) NO. 1293 of 2024

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                 BHIKHAJI @ BHIKHUBHA KHODAJI VAGHELA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
MS POOJA D RAVAL(11867) for the Respondent(s) No. 1
MR. DHAWAN JAYSWAL, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                                 Date : 05/02/2024

                                  ORAL ORDER

1. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent-State.

2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No.11993004230579 of 2023 registered with the Bhachau Police Station, Kachchh- East-Gandhidham of the offence punishable under Sections 306 and 114 of the IPC.

3. Learned advocate appearing for the applicant has submitted that the applicant-accused was arrested on 07.11.2023 and since then he is in jail. Learned advocate for the applicant has also submitted that the investigation has already been completed and charge-sheet has also been filed. Learned advocate for the applicant has submitted that the present applicant-accused happens to be the father-in-law of

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the accused No.1-Parakramsinh Hathubha. The deceased was serving as the watchman at H.R. Complex owned by the father of Parakramsinh Hathubha, namely, Hathubha Revubha Jadeja. The said Parakramsinh Hathubha has one brother, namely, Ashoksinh Hathubha and there was an inter-se dispute in the kin as regards the ancestral property and the deceased stated to have been signed in one of the documents favouring the brother of the accused No.1. It is alleged that therefore the deceased was scolded and threatened by the applicant- accused to file an affidavit to the effect that he has not signed on any document and the said signature is forged one. It is moreso submitted that the present applicant-accused happens to be the father-in-law of the accused No.1. He has nothing to do with the family dispute going on between the two brothers. It is submitted that in the entire charge-sheet papers, there is not a whisper about any threat being given by the applicant- accused to the deceased. The applicant-accused is a resident of Harij, Patan whereas the deceased was residing at Kutch. The only allegation against the applicant-accused is of giving threats to the deceased on mobile phone. Except that, no specific role is attributed to the applicant-accused. Learned advocate for the applicant has submitted that the applicant- accused is a senior citizen aged about 63 years who is languishing in jail since 07.11.2023.

4. Learned advocate for the applicant has further submitted that the averments in the FIR does not disclose any instigation which would fall within the definition of "abetment" of Section 107 of the IPC and does not satisfy the ingredients of Section 306 of the IPC. Relying on the judgment rendered in the case

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of Unnnuni George v. State of Gujarat in Criminal Misc. Application No.10870 of 2006, it is submitted that in the said case on the similar facts the Court had observed that demand for re-payment of loan amount would not constitute any intention of the accused to instigate the deceased to commit suicide. Learned advocate for the applicant further relied on the judgment rendered in the case of Sanju Alias Sanjay Singh Sengar v. State of M.P., reported in 2002 (5) SCC 371 to submit that the ingredients of abetment are totally absent in the case for offence under Section 306 of the IPC. Under the circumstances, learned advocate for the applicant prays that the applicant may be enlarged on bail on any suitable terms and conditions.

5. The learned APP appearing on behalf of the respondent- State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned APP has submitted that considering the role attributed to the applicant-accused, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused.

6. Learned advocate appearing for the original complainant has also opposed the present bail application and submitted that the deceased was continuously pressurized by the accused persons to act as per their say. Not only that he was also beaten by the accused persons. It is submitted that due to such abundant pressure and constant torturous acts on the part of the accused persons, the deceased had committed suicide. It is moreso submitted that the present applicant- accused was directly involved in the said offence and,

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therefore, if the applicant-accused is set at liberty, there is all possible chances that he may try to deter the prosecution witnesses or the complainant either by threat or by promise. Learned advocate for the complainant has further submitted that deceased had left behind one suicide note wherein the name of the applicant-accused is very clearly mentioned. The report of the FSL is also awaited and, therefore, it is prayed not to exercise discretion in favour of the applicant-accused.

7. The learned advocates appearing on behalf of the respective parties do not press for further reasoned order.

8. Heard the learned advocates for the parties and perused the material on record. Section 107 of the IPC takes into consideration the instigation by any person to do an act, instigate - means to goad or urge forward to provoke, incite, urge or encourage to do an act. Merely the accused made a call to the deceased to do a particular thing, would not in any manner be considered as an act to instigate, incite or provoking the deceased to commit suicide. The deceased could have lodged a report against the accused, who had allegedly tortured him and threatened him. The FIR speaks that the accused alleged to have goaded the deceased to make an affidavit denying his signature in a particular document, but had never intended or instigated the deceased to commit suicide. In the present case, the investigation has already been completed and charge-sheet has also been filed. The applicant-accused is a senior citizen languishing in jail since 07.11.2023. Taking into consideration the fact that the FIR does not show any prima facie case against the present

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applicant-accused, this Court is inclined to grant bail to the applicant-accused.

9. In the case of M. Mohan v. State Represented by the Deputy Superintendent of Police reported in AIR 2011 SC 1238, the Apex Court has made the following observations regarding the ingredients of Section 306 IPC, referring to the word 'suicide', which reads thus:

"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."

10. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012]1 SCC 40.

11. In the facts and circumstances of the case and considering the nature of the allegations made against the applicant in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

12. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in

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connection with the FIR being C.R. No.11993004230579 of 2023 registered with the Bhachau Police Station, Kachchh- East-Gandhidham, on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injuries to the interest of the prosecution;

        [c]      surrender passport, if any, to the lower court within
                 a    week;

        [d]      not leave the State of Gujarat without prior

permission of the Sessions Judge concerned;

[e] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;

[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;

13. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.

14. Bail bond to be executed before the lower Court having

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jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.

15. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(DIVYESH A. JOSHI,J)

VAHID