Gujarat High Court
Vipulbhai Nanjibhai Moradiya vs State Of Gujarat on 17 January, 2024
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/SCR.A/8221/2022 ORDER DATED: 17/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 8221 of 2022
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2023
In R/SPECIAL CRIMINAL APPLICATION NO. 8221 of 2022
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VIPULBHAI NANJIBHAI MORADIYA
Versus
STATE OF GUJARAT
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Appearance:
MR MONIL R SHAH(10704) for the Applicant(s) No. 1
MR SHYAM M SHAH(11348) for the Applicant(s) No. 1
MR JIMIT P SHAH(9917) for the Respondent(s) No. 2
MS CM SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 17/01/2024
ORAL ORDER
1. By way of this application under Section 482 of the Code of
Criminal Procedure, 1973, the applicants-original accused seek to
invoke inherent powers of this Court, for quashing of the FIR being
C.R.No.11210063220289 of 2022 registered with Siganpor -
Dabholi Police Station, Surat City for the offences punishable
under Sections 306, 330, 323 and 114 of the Indian Penal Code.
2. Facts and circumstances giving rise to file present petition are that
on 26.05.2022, the complainant got a phone call from his deceased
brother's (Mukeshbhai) wife, informing that Mukeshbhai had
consumed poison and was being taken to one Prannath Hospital,
whereby he took responsibility for his brother's treatment and
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while being admitted into ICU, the complainant's brother was
conscious and he informed the complainant that he was working as
a Manager at the diamond workshop of the applicant. Some theft in
diamond stock took place at the workshop of the applicant and the
applicant gave a written complaint before Mahidharpura Police
Station for the said theft. On 23.05.2022, or 24.05.2022, the police
took the deceased person to Mahidharpura Police Station for taking
his statement and he came back at 02:30 a.m. Thereafter, on
25.05.2022, the deceased was called to Mahidharpura Police
Station where he was beaten up and was told to give Rs.3,50,000/-
in exchange of stolen diamonds. The deceased had conveyed the
said incident to one Shantibhai on phone. Thereafter, he consumed
poison and committed suicide.
3. The original informant filed an affidavit, which is 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 the settlement,she does not wish to
prosecute the accused and has no objection if the proceedings are
quashed.
4. Learned counsel for the respective parties have jointly submitted
that:-
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(1) The dispute is a private in nature and 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
harassment without their being any positive action,
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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.
(3) There is an absolute no averments in the suicide note, except
referring the name of the applicant, there is no reference of
any act or incidents, whereby the applicant herein are alleged
to have committed any willful act or omission or
intentionally aided or instigated the deceased to commit an
act of suicide.
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
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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 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.
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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.
10.In the facts of the present case, more particularly, considering the
fact of settlement and chargesheet case papers, prima facie no case
is made out against the accused for the alleged offence.
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
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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 C.R.No.11210063220289 of 2022 registered with Siganpor -
Dabholi Police Station, Surat City and all other proceedings arising
therefrom are quashed. Rule is made absolute accordingly. Direct
Service is permitted.
13.In view of the disposal of the main matter, Criminal Misc.
Application No.1 of 2023 does not survive and accordingly, the
same stands disposed of as not survived.
(ILESH J. VORA,J)
Rakesh
