Gujarat High Court
Nirav Bhulabhai Patel vs State Of Gujarat on 31 January, 2024
NEUTRAL CITATION
R/CR.MA/22946/2023 CAV ORDER DATED: 31/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 22946
of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NIRAV BHULABHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1
MR HK PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 31/01/2024
CAV ORDER
1. By way of the present petition under Section 438 of the
Code of Criminal Procedure, 1973, the petitioner has prayed to
release him on anticipatory bail in case of his arrest in
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connection with the FIR registered as C.R.No.11822004230689
of 2023 registered with Khergam Police Station.
2. An FIR is lodged by the complainant - respondent no.2 on
October 11, 2023 for the incident which is alleged to have
occurred on October 10, 2023. It is alleged by the first informant
that the on October 10, 2023, when he was present at his home
at 07.15 p.m. and was proceeding for his service, the nephew
son of his elder brother named Mr. Dhanesh approached the
first informant, who was frightened. He informed that his elder
brother Mr.Kanti was being assaulted by Mr.Mangu, Mr. Mehul
and Mr. Bharat, near Shop of Mr.Mehul Chaudhary and,
therefore, he, alongwith his father and mother, Mr.Dhanesh, his
sister in law Ms. Savita and Madhu, wife of Mr.Kanti and
nephew Mr. Ajay and Mr.Dishan, reached to the shop of Mr.
Mehul Chaudhary, where they saw that Mr. Mangu was
assaulting Mr. Kanti by catching his T shirt, whereas Mr.
Mahesh was taking Mr.Kanti and Mr.Bharat was assaulting with
the stick and, therefore, they intervened and they took Mr. Kanti
at home. When they reached at home, it is further alleged that
the petitioner is dragging Mr.Kanti and is unnecessarily
disrupting him in the society and, therefore, informed that he
would not like to survive. After cautioned his brother, he left for
the job. He further alleged that his wife has informed that the
petitioner is collecting the people near Panikhadak Circle and
blocked the road and that is how he disrupted his brother. It is
further alleged that his brother thereafter left home and they
were searching. On October 11, 2023, the first informant was
informed that his brother was sitting on the road vomiting and,
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therefore, 108 Ambulance was called and when the respondent
no.2 reached nearby his brother, he came to know that on
account of the harassment by the petitioner and Mr. Mangu, the
brother of the first informant consumed poisonous substance
and thereafter, he succumbed to the poison. Therefore,
impugned FIR is filed against the petitioner. Hence, present
petition is filed by the petitioner to enlarge him anticipatory bail.
3. Learned advocate Mr. Mangukiya for the petitioner would
submit that the petitioner is innocent and there is no prima facie
case against the petitioner so as to implicate him in the alleged
commission of the offence. He would further submit that there
are no ingredients as contemplated u/s 107 of the IPC and
therefore, lodging of the FIR against the petitioner u/s 306 of the
IPC is nothing, but abuse of process of law.
4. Referring to judgment of the Hon'ble Apex Court in case of
SS Chheena Vs. Vijay Kumar Mahajan reported in 2010(12) SCC
190, learned advocate Mr. Mangukiya would submit that
abetment involves mental process of instigating a person or
intentionally aiding a person in doing of a thing. When positive
act on the part of the accused to instigate or aid in committing
suicide, the conviction cannot be sustained. He has also pressed
into service judgment of the Hon'ble Apex Court in case of
Madanmohansing Vs. State of Gujarat reported in 2011(1) G.L.R.
99 to submit that the intention of an accused to abet or instigate
decease to commit suicide is must. He would further submit
that on bare reading of the FIR, it is crystal clear that there is
no abetment alleged to have been committed by the petitioner.
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He would further submit that on plain reading of the FIR, it is
alleged that the accused has made the deceased belittle in the
society and community. He was behind the deceased and
because of his act, the deceased has committed suicide.
However, ingredients of section 107 of the IPC is not satisfied.
He would further submit that the accused has never made any
talk with the deceased. So, question of abetment of suicide does
not arise and does not survive. He would further submit that
though it is stated in the FIR that the petitioner and other
accused Mangubhai has lowered down the dignity of the
deceased and ruined the life, yet, no serious allegations are
prima facie attracting offence u/s 306 of the IPC. The vague
allegations have been made that the petitioner collected the
people on the road and jammed the road. Said allegation would
not satisfy requirement of abetment as contemplated under
Section 107 of the Indian Penal Code, 1860 and, therefore,
lodging of the FIR against the petitioner is abuse of process of
law and Court.
5. Upon such submission, learned advocate Mr. Mangukiya
for the petitioner prays that this Hon'ble Court may exercise
discretion and order to enlarge the petitioner on anticipatory bail
in the event of his arrest.
6. On the other hand, learned APP while opposing the bail
application, would submit that present petitioner is not
cooperating with the investigation and therefore, non-bailable
warrant u/s 70 of the Code of Criminal Procedure, 1973 has
been issued against the petitioner. He would further submit that
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three antecedents are registered against the petitioner and
therefore, it appears that the petitioner is a habitual offender.
He would further submit that in the oral dying declaration given
by the deceased, he has specifically stated that because of
continuous mental and social harassment being meted out to
her at the hands of the petitioner, he has taken this extreme step
of committing suicide. He would further submit that considering
the oral dying declaration, prima facie offence u/s 306 of the IPC
is made out against the petitioner. Upon such submission,
learned APP requests to dismiss the petition.
7. Having heard learned advocates for the respective parties,
what appears that the petitioner is absconding from 5.12.2023
and for that, non-bailable warrant u/s 70 of the Code has been
issued against the petitioner. That prima facie indicates that the
petitioner has not joined the investigation and avoided the
investigation. Since the petitioner has not cooperated in the
investigation and was on run since 5.12.2023, even prior to filing
of this petition, it appears that the petitioner is running away
from the investigation. At the same time, learned APP referring
to the report of the investigating officer, would submit that there
are as many as three antecedents registered against the
petitioner. The details of which are as under:-
(1) C.R. No.11822004220560 of 2022 registered
with Khergam Police Station
(2) C.R. No.11822004220561 of 2022 registered
with Khergam Police Station
(3) C.R. No.11822004220566 of 2022 registered
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with Khergam Police Station
8. Moreover, it appears on reading the FIR that before the
deceased died, he has made oral dying declaration saying that he
is committing suicide because of the constant mental and social
harassment received from the petitioner and one accused
Mangubhai.
9. What further appears that in the oral dying declaration
given by the deceased, he has specifically stated that because of
continuous mental and social harassment being meted out to
her at the hands of the petitioner, he has taken this extreme step
of committing suicide. Considering this aspect, prima facie
offence u/s 306 of the IPC is made out against the petitioner.
10. In case of SIDHHARAM SATLINGAPPA MEHTRE V/s.
STATE OF MAHARASHTRA reported in - 2011(1) GLH 11, the
Hon'ble Apex Court held that to exercise discretion under
Section-438 of the Cr.P.C., a competent court has to keep in
mind the position of law emerged from the discussion in various
judgments by Hon'ble High Courts and Supreme Court. The
Court has further held that the following factors and parameters
can be taken into consideration while dealing with the
anticipatory bail.
i. The nature and gravity of the accusation and the exact
role of the accused must be properly comprehended before
arrest is made;
ii. The antecedents of the petitioner including the fact as to
whether the accused has previously undergone
imprisonment on conviction by a Court in respect of any
cognizable offence;
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iii. The possibility of the petitioner to flee from justice;
iv. The possibility of the accused's likelihood to repeat
similar or the other offences.
v. Where the accusations have been made only with the
object of injuring or humiliating the petitioner by arresting
him or her.
vi. Impact of grant of anticipatory bail particularly in cases
of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material
against the accused very carefully. The court must also
clearly comprehend the exact role of the accused in the case.
The cases in which accused is implicated with the help of
sections 34 and 149 of the Indian Penal Code, the court
should consider with even greater care and caution because
over-implication in the cases is a matter of common
knowledge and concern;
viii. While considering the prayer for grant of bail, a balance
has to be struck between bathely, no prejudice should be
caused to the free, fair and full investigation and there
should be prevention of Andassment, humiliation and
unjustified detention of the accused; anticipatory
ix. The court to consider reasonable apprehension of
tampering of the witness or apprehension of threat to the
complainant;
x. Frivolity in prosecution should always be considered and
it is only the element of genuineness that shall have to be
considered in the matter of grant of bail and in the event of
there being some doubt as to the genuineness of the
prosecution, in the normal course of events, the accused is
entitled to an order of bail."
11. Apt to refer observations made by Hon'ble Supreme Court
in another case of JAI PRAKASH SINGH V. STATE OF BIHAR
AND ANOTHER, reported in, 2012 Cri.LJ 2101, wherein the
Hon'ble Apex Court held as under:
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"The court may not exercise its discretion in derogation of
established principles of law, rather it has to be in strict
adherence to them. Discretion has to be guided by law, duly
governed by rule and cannot be arbitrary, fanciful or vague. The
court must not yield to spasmodic sentiment to unregulated
benevolence."
12. Above all the things make it clear that discretion means
sound discretion guided by law. It must be governed by rule, it
must not be arbitrary, vague and fanciful, but legal and regular
and in the case of granting bail the judicial discretion of Judge
must be exercised not in opposition to, but in accordance with
the established principle of law.
13. In view of law laid down by the Hon'ble Apex Court in case
of State of Haryana vs. Dharamraj reported in 2023 INSC 784,
Lavesh vs. (NCT of Delhi) reported in (2012) 8 SCC 730,
Abhishek vs. State of Maharastra reported in 2022 (8) SCC 282
and Prem Shankar Prasad vs. State of Bihar reported in 2021
SCC OnLine SC 955, it is observed that as accused remained
absconder and considering the aforesaid fact, this is not a fit
case to exercise the jurisdiction in favour of the petitioner. Even
the antecedents registered against the petitioner also runs
against him to deny bail.
14. Under the circumstances, present petition fails and stands
dismissed.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
