Gujarat High Court
Kiritbhai Baldevbhai Patel vs State Of Gujarat on 8 January, 2024
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.MA/7051/2022 ORDER DATED: 08/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 7051 of 2022
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KIRITBHAI BALDEVBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR. MANOJ T DANAK(6264) for the Applicant(s) No. 1
MR M.O. BARAD, ADVOCATE for the Respondent(s) No. 2
MS CHETNA SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 08/01/2024
ORAL ORDER
1. By way of this application under Section 482 of the Code of
Criminal Procedure, 1973, the applicant-original accused seeks
to invoke inherent powers of this Court, for quashing of the FIR
being I-C.R.No.47 of 2017 registered with Bavlu Police Station,
Mahesana for the offences punishable under Sections 306 and
406 of the Indian Penal Code.
2. Rule. Learned advocates appearing for the respective
respondents waive service of Rule on behalf of the respective
respondents.
3. The original informant namely Rajendrakumar
Parsottambhai Patel filed an affidavit, which is ordered to be
taken on record. He has categorically stated that the dispute
with the applicant has been amicably settled with the
intervention of the friends and well-wishers and pursuant to
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the settlement, he does not wish to prosecute the accused and
has no objection if the proceedings are quashed.
4. Learned counsel Mr. Manoj Danak for the applicant and
learned counsel for the informant Mr. M.O. Barad have jointly
submitted that:-
(1) 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 applicant for the alleged offence
and therefore, no useful purpose would be served
by continuing the proceedings as there is no
possibility of the accused being convicted for the
alleged offence and it would be unnecessary
harassment and futile attempt, if the prosecution is
allowed to continue.
(2) On merits, it is submitted that 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), to submit 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
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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.
5. On the other hand, learned APP has relied upon the
judgment of the Apex Court in case of Daxaben Vs. State of
Gujarat, AIR 2022 SC 3530, to contend that even settlement
has taken place, the court lacked the jurisdiction to quash the
FIR registered under Section 306 of the IPC, as the offence
under Section 306 falls in the category of heinous and serious
offence and are to be treated as crime against the society and
not against individual one. On merits of the case, it is
submitted that this is not a stage where minute and meticulous
exercise with regard to the appreciation of evidence may be
done and fruitfulness of the allegations could only be tested in
a trial and therefore, when prima facie case is made out, the
application is liable to be dismissed.
6. Having considered the contentions raised by learned
counsel for the respective parties, the issue arise is whether
the FIR and consequential proceedings are liable to be
quashed in exercise of extraordinary and inherent jurisdiction?
7. It is no doubt to true that pursuant to the compromise
arrived at between the parties, the original informant-
respondent no.2 has no objection if the proceedings are
quashed. On perusal of the settlement affidavit, it appears that
the settlement is voluntary, without monetary benefit to be
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given to the complainant. In the case of Daxaben (supra), in
Para-50 of the judgment, the Apex Court clearly laid down that
offence under Section 306 of the IPC would be fall in the
category of heinous and serious offences and are to be treated
as crime against the society and FIR under Section 306 cannot
be quashed on the basis of financial settlement with the
informant, surviving spouse, parents, children, guardians or
anyone else. It needs to be noted that the Apex Court has not
examined the question whether the FIR discloses offence
under Section 306 of the IPC.
8. In light of the observations made by the Apex Court in
the case of Daxaben (supra), this Court decides the case on
its own merits.
9. The applicant is charged with Section 306 of the IPC.
Section 306 provides that whoever abates the commission of
suicide, shall be punished with the imprisonment and shall be
also liable to be fine. The essential ingredients of offence under
Section 306 of the IPC are (i) abatement, (ii) intention of the
accused to aid or instigate or abate the deceased to commit
suicide. Mere harassment by itself would not constitute the
abatement of suicide. There should be evidence capable of
suggesting that the accused intended by such act to instigate
the deceased to commit suicide. In other words, there must be
a prove of direct or indirect act(s) of incitement to the
commission of the suicide and therefore, whether a person has
abated to commit a suicide or not could only be gathered from
the facts and circumstances of each case.
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10. In the facts of the present case, more particularly,
considering the fact of settlement, prima facie, no case is
made out against the accused for the alleged offence under
Section 306 of the IPC.
11. It is no more res-intergra that inherent powers could be
exercised by the High Court to give effect to an order under
Cr.P.C.; to prevent of abuse of process of Court; and to
otherwise secure ends of justice. Thus, considering the peculiar
facts and circumstances of present case, this Court is of the
considered opinion that there is minimal chances of witnesses
coming forward in support of the prosecution and chances of
conviction appears to be remote and/or bleak. In such
circumstances, it would be unnecessary harassment and futile
attempt if the prosecution is allowed to continue.
12. For the foregoing reasons, this Court is of the considered
view that the application deserves to be allowed. Accordingly,
following the guidelines in State of Haryana & others Vs.
Bhajanlal & others (1992 Suppl. 1 SCC 335), the
application is allowed. The FIR being I-C.R.No.47 of 2017
registered with Bavlu Police Station, Mahesana and all other
proceedings arising therefrom are quashed qua the applicant.
Rule is made absolute accordingly. Direct service is permitted.
(ILESH J. VORA,J)
TAUSIF SAIYED
