Gujarat High Court
State Of Gujarat vs Alok Nag on 3 January, 2024
NEUTRAL CITATION
R/CR.MA/15876/2023 ORDER DATED: 03/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
15876 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 15823 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 12593 of 2023
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STATE OF GUJARAT
Versus
ALOK NAG
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Appearance:
MR HK PATEL APP for the Applicant(s) No. 1
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 03/01/2024
COMMON ORAL ORDER
By way of the present petitions under Section 439(2) of the
Code of Criminal Procedure, 1973, the petitioner State has
prayed to quash and set aside the order dated 14/06/2023 and
03/07/2023 passed by the learned Additional Sessions Judge,
Ahmedabad (Rural) in Criminal Misc. Application No.2126, 2212
and 2235 of 2023, whereby the learned Session Judge has
granted anticipatory bail granted to the respondents - original
accused.
2. Since the issue involved in the petition is common, they are
heard and decided together by this common oral order.
3. It is the case of the complainant that the nephew of the
complainant is running a company namely Vriks Telecom Private
Limited in Ahmedabad and the deceased who is the brother of
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the complainant used to assist his son in running the said
company. It is also alleged in the complaint that the accused
conspired together and with an intention to defraud the nephew
of the complainant, the accused persons offered an unsecured
loan to the nephew of the complainant and accordingly,
transferred a total sum of Rs. 25,39,45,319/- in the account of
the company. It is also alleged in the complaint that the nephew
of the complainant paid Rs.38,20,97,000/- to the accused
persons as a repayment of the principal loan amount alongwith
interest and over and above and the accused persons used to
threaten the nephew of the complainant and the deceased and
his family members. Thereafter, the accused persons threatened
the nephew of the complainant that he is supposed to pay
Rs.3,37,50,000/- as the remaining repayment of loan and for
that as well, the accused persons started threatening the
nephew of the complainant through telephone as well as
physically and subsequently, the deceased told the complainant
that he was not able to bear the stress of the threats from the
accused persons, and hence, on 21.05.2023, the deceased was
in Dhandhuka when he went to a farm on the border of
Chharodiya village and the deceased had committed suicide by
hanging himself and upon investigation, the complainant found
that there was a video of the deceased in the phone of the
deceased where in the deceased had stated that he is taking this
step due to the harassment by the accused persons. It is also
alleged that the complainant found three papers from the car of
the deceased wherein two letters were hand written and the third
was typed wherein the deceased had mentioned that he was
tired of the harassment by the accused and that is why he took
this step. Later on the deceased took to the hospital wherein he
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was declared dead and then the impugned FIR came to be filed.
4. Upon filing of the FIR, the application seeking pre-arrest
bail is filed by the respondents-accused and learned Court below
granted the said applications which has been challenged in these
petitions.
5. Heard learned APP for the applicant - State of Gujarat.
6. In Bhagwan Singh v Dilip Kumar @ Deepu @ Depak
reported in 2023 INSC 7613, the Hon'ble Apex Court after
considering judgment in case of Dolat Ram v State of Haryana,
(1995) 1 SCC 349; Kashmira Singh v Duman Singh, (1996) 4
SCC 693 and X v State of Telangana, (2018) 16 SCC 511, held as
follows:
"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."
7. Learned APP would submit that the learned Court below
has granted anticipatory bail in a serious offence on irrelevant
consideration and on untenable grounds. He would further
submit that in spite of believing that there was harassment,
cruelty and torture to the deceased at the instance of the
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respondents-accused, the learned Court below did not believe it
to be abetment for committing suicide and granted anticipatory
bail. He would further submit that the amount of unsecured
loan was already paid and in addition thereto Rs.12.00 Crore
was paid to the respondents-accused and yet they were
continuously harassing for more amount of Rs.3.00 Crore. He
would further submit that it is to be evident that because of
such harassment and demand of extra amount, son of the
deceased- Mr.Khanjan left the India and went to USA. While
drawing the attention of this Court to the suicide note, learned
APP would submit that since the deceased was fed up with the
continuous demand, he committed suicide. He would further
submit that in spite of the amount has been paid to the
respondents-accused towards the repayment of the secured loan
which is transpired from the bank statement produced with the
petition, they continued to harass the org. complainant and thus
prima facie case is made out to reject the bail application;
however the learned Court below has committed serious error in
granting such applications. By making above submissions, he
would urge this Court to allow these applications.
8. Having heard the learned APP and perusing the impugned
order, let refer to observations made by the learned Court below
in paragraph 8 while granting anticipatory bail to the
respondents-accused which reads thus:
"(8) Now, keeping in mind the above guidelines of the Hon'ble
Supreme Court, various order of Hon'ble Gujarat High Court
and other High Courts and also of Hon'ble Supreme Court on
Anticipatory bails as well as on quashing order, here in this
case, it appears that the name of the applicant-accused is at
serial No.5 on the surface of the F.I.R. From the bail application
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as well as police papers, it appears that, there is allegation
leveled against the accused that, the present applicant-accused
had threatened the deceased and his son and hence, the
deceased committed suicide. Here from the arguments of Id.
advocate for the applicant-accused that if the complaint is
accepted on its face value, it does not make out a case for
commission of the alleged offences namely; abetment for suicide
and the alleged offence under the Money Lenders Act. It is also
a submission that the loan was given and in repayment of that
loan, the borrower didn't support and when demanded the
amount of loan and then the original borrower was not
supporting the demand of payment then this conduct of
demand of money which was given in a form of loan doesn't
mean that the applicant-accused has abeted the him to suicide
though the deceased was not at all involved in the loan
transaction as the loan was taken by his son. Even from the
arguments, it appears that the present applicant- accused is
broker/agent and an employee of accused No.2 and the present
applicant had not lent any sum of money to the deceased or any
of his family members. From the arguments, it also appears
that the allegations made against the present applicant-
accused, at the most it said as harassment or mental torture or
at best, cruelty which even otherwise cannot be said as
abetment of incitement to commit suicide. From the records, it
appears that the loan amount was due and that was demanded
to repay and the borrower failed to repay amount with interest
which was demanded and subsequently, the father of the
borrower committed suicide. As the applicant-accused as well
as other co-accused demanded to refund/repay the loan
amount advance by them to the son of the deceased, would not
in any manner be considered as an act to instigate, incite or
provoking the deceased to commit suicide. Such act of
demanding the repayment of money would not bring case within
the meaning of Section 306 of the Indian Penal Code. There
would not be any mens rea of the applicant-accused as he
would not benefited from the act of suicide of the deceased.
Even from the contentions of the FIR do 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. Even from the records, it doesn't see
that any report qua the threat from the present applicant have
been filed either by borrower or by the deceased prior to this
FIR. The FIR blames the accused, that he is alleged to have
goaded him to refund/repay the amount, but never would have
intended that the deceased should commit suicide. Even the
FIR is having unexplain 2 days delay. There is no direct
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instigation or abetment by the applicant-accused. Moreover,
there is no any antecedent qua the present applicant-accused.
He is a reputed person in the society and he has also deep roots
in the society as argued by the Ld. advocate for the applicant;
he is a permanent residence of above stated address and he will
be easily available during the course of investigation and trial as
there is no likelihood of the applicant-accused being
absconding.
So, in this circumstances applicant - accused should be
released on anticipatory. So, looking to the gravity of offence
with the observations made by the Hon'ble Supreme Court in
the case of Siddharam Satlingappa Mhetre, (supra) and
considering the various orders relied by the applicant, this
Court is of the opinion that, it is a fit case to exercise discretion
conferred under Section- 438 of Cr.P.C. to enlarge the
applicant-accused on anticipatory bail. Hence, I pass the
following order in the interest of justice."
9. At this juncture, I am refer to decision in case of Mohit
Singhal & Anr. vs. The State of Uttarakhand & Ors., rendered in
Criminal Appeal No.3578 of 2023 by the Hon'ble Apex Court in
regards to allegation 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. Paragraph 7 to 10
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
8. According to the complaint of the third respondent, the
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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 wilful misrepresentation, or by wilful
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 said to instigate
the doing of that thing." (underline supplied)
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
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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."
10. From the above observations and finding of the Hon'ble
Apex Court, it clearly appears that it is impossible to conclude
that because of demanding money, the deceased was instigated
to commit suicide. It is to be noted that in present case the
money was borrowed by Mr.Khanjan which he had to pay;
however he left the India and now residing at USA as per case of
the prosecution. It was not the deceased who was required to
repay borrowed amount even if it is demanded. Insofar as the
suicide note is concerned, even if it is taken on its face value, it
only indicates that the respondents were demanding money back
which was borrowed by Mr.Khanjan-son of the deceased.
Furthermore, on going through the prosecution case and suicide
note, there is no allegation of any act said to have been done by
the respondent/s in the proximity of the date of suicide which
instigated or goaded the deceased to commit suicide.
11. To be noted further that this Court and the co-ordinate
Bench of this Court in respect of other accused persons arising
out of the same FIR has dismissed the applications seeking
cancellation of anticipatory bail filed by the first informant being
CR.MA No.12581 of 2023 as per order dated 26/07/2023 and
the application filed by the State being CR.MA No.15787 of 2023
as per order dated 01/01/2024.
12. Before parting with the order, I may also refer the
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observations made in the recent decision by the Hon'ble Apex
Court in case of Kekhriesatuo Tep and others Vs.National
Investigating Agency reported in (2023) 6 SCC 58. The relevant
observation made in para 20 reads as under:-
"20. An interference by an Appellate Court and particularly in a
matter when liberty granted to a citizen 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."
13. The learned Court below in its well reasoned order has
discerned all the factors and ground to exercise the judicial
discretion. No case is made out to impress that learned trial
Court has exercised discretion to grant anticipatory bail on
untenable ground or impugned order is whimsical, erroneous
and against settled principle of law.
14. Resultantly, present petitions fail and stand dismissed.
(J. C. DOSHI,J)
sompura
