Sahana Parvin @ Muskan Farukbhai Saiyed vs State Of Gujarat
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Gujarat High Court

Sahana Parvin @ Muskan Farukbhai Saiyed vs State Of Gujarat on 10 January, 2024

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     R/CR.MA/15967/2023                           ORDER DATED: 10/01/2024

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        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
 R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
                        15967 of 2023
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              SAHANA PARVIN @ MUSKAN FARUKBHAI SAIYED
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR ABID R PATHAN(11217) for the Applicant(s) No. 1
MS. RESHMA G RAUMA (10143) for the Respondent(s) No. 2
MR HK PATEL, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:                    HONOURABLE MR. JUSTICE J. C. DOSHI
                               Date : 10/01/2024
                                ORAL ORDER

1. By way of the present petition filed under Section 439(2) of the Code of Criminal Procedure, 1973 (in brief, 'the Code'), the petitioner has prayed to quash and set aside the order dated 24.08.2023, passed by the learned Additional Sessions Judge, City Sessions Court, Ahmedabad City, in Criminal Misc. Application No. 6681 of 2023, whereby the learned Sessions Judge has granted bail to the respondent No.2-original accused No.3.

2. Heard learned APP for the petitioner State.

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

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"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. Learned Advocate, Mr. Pathan, appearing for the petitioner as well as learned APP, Mr. Patel, appearing for Respondent No.1-State, though, strongly argued to cancel the bail on submission that the learned Sessions Court while granting bail did not consider the factors to be considered for granting or rejecting the bail, they have failed to point out any supervening circumstances, which may affect conducting of a fair trial. Thus, it is urged to allow this petition and to cancel the bail granted to the accused.

5. The learned Sessions Court, while granting bail to the accused, has observed in Paragraph-7 that the deceased Mohammed Faruk Abdulhaq Saiyed committed suicide by drowning himself in the river and the suicide note recovered from his body, indicated that one Hazar Pathan and Paresh Markiwana had been torturing the deceased for interest and they are the persons, who lead the deceased to commit

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suicide. It is, further, observed that the name of one the persons, responsible for the death of the deceased, is mentioned to be Hazar Pathan in the suicide note, whereas, the name of Respondent No.2, herein, and the petitioner, therein, is Rihanraza Pathan, i.e. both the names are totally different. The Sessions Court also observed that, though, the suicide note names only two persons, the FIR is filed against three persons. Taking into consideration the above vital aspects, the learned Sessions Judge passed the impugned order, which does not appear to be unjust, illegal or perverse in any manner.

6. Thus, this Court finds no circumstances to adjudge the impugned order as unjust and contrary to the settled principles of law. As held earlier, the petitioner has failed to point out supervening circumstances, which may interfere with the fair trial. Further, merely because the deceased had not paid the amount to the accused it would not bring the act as case for instigation for commission of suicide.

7. Before parting with the order, I may also refer to the observations made in the recent decision by the Hon'ble Apex Court in the case of 'Kekhriesatuo Tep and others Vs. National Investigating Agency', reported in (2023) 6 SCC

58. The relevant observation made in Paragraph-20 thereof reads as under:-

"20. An interference by an Appellate Court and particularly in a matter when liberty granted to a citizen

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was being taken away would be warranted only in the event the view taken by the Trial Court was either perverse or impossible. On this limited ground, we find that the appeals deserve to be allowed."

8. At this juncture, I may also refer to the decision of the Hon'ble Apex Court in the case of 'Mohit Singhal & Anr. vs. The State of Uttarakhand & Ors.', rendered in Criminal Appeal No.3578 of 2023, wherein, with regard to the allegations 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. Paragraphs-7 to 10 thereof 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.

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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 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 willful misrepresentation, or by willful 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

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said to instigate the doing of that thing."

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. 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."

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8. Resultantly, present petition fails and stands dismissed. Rule is discharged.

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