Gujarat High Court
Pravinbhai Khengarbhai Rabari vs State Of Gujarat on 3 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 2288 of 2025
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PRAVINBHAI KHENGARBHAI RABARI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR TEJAS BAROT, SENIOR ADVOCATE with
MS RHEA CHOKSHI(10808) for the Applicant
MS SHRUTI PATHAK, APP for the Respondent No. 1 - State
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 03/02/2025
ORAL ORDER
1. The present petition, under Section 528 of the
Bharatiya Nagrik Suraksha Sanhita, 2023, is preferred by the
petitioner - original accused for quashment of the proceedings
being Criminal Case No.5724 of 2024 pending before the
Additional Civil Judge and Judicial Magistrate, Dholka,
arising from the FIR being C.R. No.11192064240447 of 2024
registered with the Dholka Rural Police Station for the
offences punishable under Sections 308, 351(2), 54 and 108 of
the Bharatiya Nyay Sanhita, 2023 ('the BNS' for short) and
Sections 40, 42(a) and 42(d) of the Gujarat Money Lenders
Act, 2011.
2. Heard learned advocates.
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3.1 Learned senior advocate Mr.Barot for the applicant
has submitted that a false and concocted complaint has been
filed in order to harass and pressurize the petitioner; and
that without there being any material against the petitioner,
the allegations are absolutely baseless; and that the alleged
suicide note was dated 20.08.2024 and the deceased
committed suicide about two months later i.e. on 16.10.2024;
and that there was no proximity of any alleged act of the
accused and the suicide committed by the deceased; and that
his family only found out about the alleged harassment via
video made by the deceased prior to him succumbing to the
ingestion of a poisonous substance; and that no proximate
link exists to any act that may have allegedly been
committed by the petitioner and the deceased committing
suicide; and that the statement given by all the witnesses is
purely hearsay and circumstantial in nature.
3.2 In support of his submissions, he has relied upon
the following decisions of the Hon'ble Apex Court as well as
of this Court.
(i) Shabbir Hussain versus State of Madhya
Pradesh reported in 2021 CC OnLine 743 wherein
the decision in the case of Amalendu Pal versus
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State of West Bengal - (2010) 1 SCC 707 has
been considered.
(ii) Mariano Anto Bruno versus Inspector of Police
- 2022 SCC OnLine SC 1387.
(iii) Jorubhai Amrubhai Varu versus State of
Gujarat - 2020 SCC OnLine Guj. 1189.
(iv) Ude Singh versus State of Haryana - (2019)
17 SCC 301 (v) Ramessh Kumar versus State of
Chhattisgah - (2001) 9 SCC 618.
(vi) Geo Varghese versus State of Rajasthan -
2021 SCC OnLine SC 873.
(vii) Manik Taneja versus State of Karnataka -
(2015) 7 SCC 423.
(viii) Mohit Singhal versus State of Uttarakhand -
(2024) 1 SCC 417.
(ix) Smt. Mangala Gowri versus State of
Karnataka - Criminal Appeal No.276 of 2023,
dated 07.09.2023
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3.3 He has submitted that this application may be
allowed.
4.1 Learned APP Ms.Pathak for the State has
vehemently opposed the submissions made by the learned
advocate for the petitioner. She submits that charge-sheet is
filed and criminal case is pending before the learned trial
Court concerned. She further submits that the petitioner has
no license to lend money to the public; and that the accused
charged high rate of interest i.e. 10% per month; and that
the deceased has repaid the principal amount as well as
interest as charged by the accused. She emphasizes on the
nature of the offence, where the deceased took drastic action
by ending his life due to continuous harassment caused by
the petitioner. She further submits that the deceased has
made a video in his mobile before committing suicide,
wherein he has taken the name of the accused for
harassment. She further submits that another accused viz.,
Arunbhai Manubhai Agrawal is absconding. She also submits
that prima facie offence is made out against the petitioner by
the suicide note as well as by the video made by the
deceased before committing suicide and therefore, this Court
may not exercise the powers in favour of the petitioner which
should be exercised sparingly, as observed by the Hon'ble
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Apex Court time and again. She submits that since the trial
is commenced, this petition may not be entertained.
4.2 In support of her submissions, she has relied upon
the decision of the Hon'ble Apex Court in the case of
Gurcharan Singh versus State of Punjab reported in (2020)
10 SCC 200, more particularly Para : 15 thereof.
5.1 I have considered the rival submissions made by
the learned advocates for the respective parties. I have also
considered the documents available on record. From the
record, the following undisputed facts are found.
The deceased has borrowed money from the
accused.
The accused has no license to lend the
money to the public.
The rate of interest is very high i.e. 10% per
month.
The deceased has returned double the
amount, including principal amount and interest
amount.
The accused has threatened the deceased and
asked more amount.
The deceased has written a suicide note
regarding the said threats given by the accused.
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The deceased has made a video in his mobile
phone before committing suicide and thereby taken
the names of the accused for their harassment.
5.2.1 At this stage, it would be fruitful to refer to the
provisions of the Bharatiya Nyay Sanhita, 2023, which read
as under :
"308. Extortion.-- (1) Whoever intentionally
puts any person in fear of any injury to that
person, or to any other, and thereby
dishonestly induces the person so put in fear
to deliver to any person any property, or
valuable security or anything signed or sealed
which may be converted into a valuable
security, commits extortion.
(2) Whoever commits extortion shall be
punished with imprisonment of either
description for a term which may extend to
seven years, or with fine, or with both.
(3) Whoever, in order to the committing of
extortion, puts any person in fear, or attempts
to put any person in fear, of any injury, shall
be punished with imprisonment of either
description for a term which may extend to
two years, or with fine, or with both.
(4) Whoever, in order to the committing of
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extortion, puts or attempts to put any person
in fear of death or of grievous hurt to that
person or to any other, shall be punished with
imprisonment of either description for a term
which may extend to seven years, and shall
also be liable to fine.
(5) Whoever commits extortion by putting any
person in fear of death or of grievous hurt to
that person or to any other, shall be punished
with imprisonment of either description for a
term which may extend to ten years, and shall
also be liable to fine. 89
(6) Whoever, in order to the committing of
extortion, puts or attempts to put any person
in fear of an accusation, against that person or
any other, of having committed, or attempted
to commit, an offence punishable with death or
with imprisonment for life, or with
imprisonment for a term which may extend to
ten years, shall be punished with imprisonment
of either description for a term which may
extend to ten years, and shall also be liable to
fine.
(7) Whoever commits extortion by putting any
person in fear of an accusation against that
person or any other, of having committed or
attempted to commit any offence punishable
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with death, or with imprisonment for life, or
with imprisonment for a term which may
extend to ten years, or of having attempted to
induce any other person to commit such
offence, shall be punished with imprisonment of
either description for a term which may extend
to ten years, and shall also be liable to fine.
351. Criminal intimidation. --
(1) xxx
(2) Whoever commits the offence of criminal
intimidation shall be punished with
imprisonment of either description for a term
which may extend to two years, or with fine,
or with both.
54. Abettor present when offence is
committed.--Whenever any person, who is
absent would be liable to be punished as an
abettor, is present when the act or offence for
which he would be punishable in consequence
of the abetment is committed, he shall be
deemed to have committed such act or offence.
108. Abetment of suicide.-- If any person
commits suicide, whoever abets the commission
of such suicide, shall be punished with
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imprisonment of either description for a term
which may extend to ten years, and shall also
be liable to fine."
5.2.2 At this stage, it would be fruitful to refer to the
provisions of the Gujarat Money Lenders Act, 2011, which
read as under :
"40. Whoever molests or abets the
molestation of a debtor for the recovery of a
loan due by him to a money-lender shall, on
conviction, be punished with imprisonment for a
term which may extend to two years and with
fine which may extend to twenty-five thousand
rupees :
Provided that in absence of the special
and adequate reasons to the contrary to be
mentioned in the judgments of the Court -
(i) for the first offence, such imprisonment
shall not be less than six months and such
fine shall not be less than ten thousand
rupees;
(ii) for the second and subsequent ofnces,
such imprisonment shall not be less than one
year and such fine shall not be less than
twenty-five thousand rupees.
Explanation - For the purposes of this section,
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a person who, with intent to cause another
person to abstain from doing any act which he
has a right to do or to do any act which he
has a right to abstain from doing -
(a) obstructs or uses violence to or
intimidates such other person, or
(b) persistently follows such other person
from place to place or interferes with any
properly owned or used by him or deprives him
of, or hinders him in the use thereof, or
(c) loiters near a house or other place
where such other person resides or works, or
carries on business, or happens to be, or does
any act calculated to annoy or intimidate such
other person shall be deemed to molest such
other person :
Provided that a person who goes to
such house or place in order merely to obtain
or communicate information shall not be
deemed to molest.
42. Whoever -
(a) carries on the business of money-lending
in any area without registration in
contravention of section 5; or
(b) xxx
(c) xxx
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(d) demands, charges or receives from a
debtor the interest at higher rate in
contravention of sub-section (3) of section 33;
shall on conviction, be punished with
imprisonment for a term which may extend to
two years and with fine which may extend to
twenty-five thousand rupees:
Provided that in absence of the special
and adequate reason to the contrary to be
mentioned in the judgments of the Court -
(i) for the first offence, such imprisonment
shall not be less than three months and such
fine shall not be less than five thousand
rupees,
(ii) for the second and subsequent offences,
such imprisonment shall not be less than six
months and such fine shall not be less than
ten thousand rupees. "
5.3 Further, considering the material available on the
record, particularly the suicide note, it is clear that the
deceased named accused specifically and provided details of
the harassment he experienced from the accused. These
details are available on the record of the Investigating
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Officer. The existence of the suicide note, authored by the
deceased, supports the allegations made by the complainant.
Prima facie, an offense under Section 108 of the BNS is
made out, considering the provisions of Section 45 of the
BNS, as under:
"45. Abetment of a thing.--A person abets the
doing of a thing, who --
(a) instigates any person to do that thing; or
(b) 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
(c) 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 said to instigate
the doing of that thing.
Explanation 2.--Whoever, either prior to or at the
time of the commission of an act, does anything in
order to facilitate the commission of that act, and
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thereby facilitates the commission thereof, is said
to aid the doing of that act."
5.4 Prima facie, there is evidence of instigation and
proximity to the incident in which the deceased consumed
poison. The constant torture and demands for money made by
the accused persons on the deceased support the allegations.
It cannot be proper to accept the arguments of petitioner
that the ingredients of Section 108 of the BNS are not
prima facie satisfied in this case.
5.5.1 Furthermore, the judgments cited at the bar by
the learned advocate for the petitioner, there is no dispute
about the ratio of those judgments, which are binding also to
this Court. However, it is relevant to note that the judgment
of the Hon'ble Apex Court in the case of Mahendra K.C.
versus State of Karnataka reported in (2022) 2 SCC 129,
more particularly paragraphs 27 to 29, 32, and 33 thereof,
which are more relevant in the facts and circumstances of
the present case, which read as under:
"27. While adjudicating on an application under
Section 482 CrPC, the High Court in the present case
travelled far away from the parameters for the
exercise of the jurisdiction. Essentially, the task before
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the High Court was to determine whether the
allegations made in the first information report or the
complaint, even if they are taken at their face value
and accepted in their entirety did or did not prima
facie constitute an offence or make out a case against
the accused.
28 Instead of applying this settled principle, the
High Court has proceeded to analyze from its own
perspective the veracity of the allegations. It must be
emphasized that this is not a case where the High
Court has arrived at a conclusion that the allegations
in the FIR or the complaint are so absurd and
inherently improbable on the basis of which no
prudent person could ever reach a just conclusion that
there is sufficient ground for proceeding against the
accused. Nor is this a case where the criminal
proceeding is manifestly mala fide or has been
instituted with an ulterior motive of taking vengeance
on the accused. On the contrary, the specific
allegations in the FIR and in the complaint find due
reflection in the suicide note and establish a prima
facie case for abetment of suicide within the meaning
of Sections 306 and 107 of the IPC. The entire
judgment of the High Court consists of a litany of
surmises and conjectures and such an exercise is
beyond the domain of proceeding under section 482 of
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the CrPC. The High Court has proceeded to scrutinize
what has been disclosed during the investigation,
ignoring that the investigation had been stayed by an
interim order of the High Court, during the pendency
of the proceedings under section 482.
29. The High Court observed that a prima facie case
for the commission of offence under Section 306 of the
IPC is not made out since: i) the suicide note does not
describe the specific threats; ii) details of the alleged
demand of Rs. 8 lacs from the deceased by the
respondent-accused are not set out in the suicide note;
and iii) no material to corroborate the allegations
detailed in the suicide note has been unearthed by the
investigating agency. The High Court observed that
since the deceased took considerable time to write a
twelve page suicide note, "it would have been but
natural for the author to set out the details". The
High Court has evidently travelled far beyond the
limits of its inherent power under Section 482 CrPC
since instead of determining whether on a perusal of
the complaint, a prima facie case is made out, it has
analysed the sufficiency of the evidence with reference
to the suicide note and has commented upon and
made strong observations on the suicide note itself.
32. The Single Judge has termed a person who
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decided to commit suicide a 'weakling' and has also
made observations on how the behavior of the deceased
before he committed suicide was not that of a person
who is depressed and suffering from mental health
issues. Behavioural scientists have initiated the
discourse on the heterogeneity of every individual and
have challenged the traditional notion of 'all humans
behave alike'. Individual personality differences
manifest as a variation in the behavior of people.
Therefore, how an individual copes up with a threat-
both physical and emotional, expressing (or refraining
to express) love, loss, sorrow and happiness, varies
greatly in view of the multi-faceted nature of the
human mind and emotions. Thus, the observations
describing the manner in which a depressed person
ought to have behaved deeply diminishes the gravity of
mental health issues.
33. The High Court by its order has prevented the
completion of the investigation in the complaint
registered as Crime No.565/2016 pending on the file of
the IInd Additional Civil Judge (Junior Division) and
JMFC Court, Maddur, Mandya District. The alleged
suicide is of a person who was working as a driver of
a Special Land Acquisition Officer, who is a public
servant and against whom serious and grave
allegations of amassing wealth disproportionate to the
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known sources of income were made by the deceased.
The suicide note contains a detailed account of the
role of the accused in the events which led to the
deceased committing suicide. These are matters of
investigation and possibly trial. The High Court stalled
the investigation by granting an interim order of stay.
If the investigation had been allowed to proceed, there
would have been a revelation of material facts which
would aid in the trial, for the alleged offence against
the second respondent."
5.5.2 It is also fruitful to refer the judgment of the
Hon'ble Apex Court in the case of Rajeev Kourav versus
Baisahab reported in (2020) 3 SCC 317, more particularly
paragraphs 8 to 11 thereof, which are relevant, which read
as under :
"8. It is no more res integra that exercise of power
under Section 482 CrPC to quash a criminal
proceeding is only when an allegation made in the FIR
or the charge sheet constitutes the ingredients of the
offence/offences alleged. Interference by the High Court
under Section 482 CrPC is to prevent the abuse of
process of any Court or otherwise to secure the ends
of justice. It is settled law that the evidence produced
by the accused in his defence cannot be looked into by
the Court, except in very exceptional circumstances, at
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the initial stage of the criminal proceedings. It is trite
law that the High Court cannot embark upon the
appreciation of evidence while considering the petition
filed under Section 482 CrPC for quashing criminal
proceedings. It is clear from the law laid down by this
Court that if a prima facie case is made out disclosing
the ingredients of the offence alleged against the
accused, the Court cannot quash a criminal proceeding.
9. Mr.Shoeb Alam, learned counsel appearing for
Respondent Nos.1 to 3 relied upon several judgments
of this Court to submit that allegations only disclose a
case of harassment meted out to the deceased. The
ingredients of Section 306 and 107 IPC have not been
made out. It is submitted that there is nothing on
record to show that the Respondents have abetted the
commission of suicide by the deceased. He further
argued that abetment as defined under Section 107
IPC is instigation which is missing in the complaint
made by the Appellant. He further argued that if the
allegations against Respondent Nos.1 to 3 are not
prima facie made out, there is no reason why they
should face a criminal trial.
10. We do not agree with the submissions made on
behalf of Respondent Nos.1 to 3. The conclusion of the
High Court to quash the criminal proceedings is on
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the basis of its assessment of the statements recorded
under Section 161 CrPC. Statements of witnesses
recorded under Section 161 CrPC being wholly
inadmissible in evidence cannot be taken into
consideration by the Court, while adjudicating a
petition filed under Section 482 CrPC1.
11. Moreover, the High Court was aware that one of
the witnesses mentioned that the deceased informed
him about the harassment meted out by Respondent
Nos.1 to 3 which she was not able to bear and hence
wanted to commit suicide. The High Court committed
an error in quashing criminal proceedings by assessing
the statements under Section 161 Cr. P.C."
5.5.3 It is also fruitful to refer the judgment of the
Hon'ble Apex Court in the case of Narayan Malhari Thorat
versus Vinayak Deorao Bhagat reported in (2019) 3 SCC 598,
more particularly paragraphs 8 to 13 thereof, which are
relevant, which read as under :
"8. It was submitted on behalf of the appellant that
the High Court was not justified in entering into
questions whether the record prima facie established
that the respondent had requisite intention in order to
bring the matter within the confines of Section 306
IPC and in quashing the FIR in exercise of jurisdiction
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under Section 482 Cr.P.C. On the other hand, the
learned counsel appearing for first respondent relied
upon decisions of this Court in Netai Dutta v. State of
W.B.1; M. Mohan v. State represented by the Deputy
Superintendent of Police2 and; State of Kerala and
Others v. S. Unnikrishnan Nair and Others.3 in
support of his submission that in exercise of
jurisdiction under Section 482 Cr.P.C., the High Court
was justified in quashing the FIR.
9. In Netai Dutta (supra) the suicide note had alleged
that Netai Dutta had engaged the victim in several
wrong doings; that the victim was required to be at
the workplace during the day and night on certain
occasions; and that though he had reported the fact
that he could leave the workplace only by 8 o' clock
in the evening when all the restaurants were closed
nothing was done by said Netai Dutta. It was in the
backdrop of these facts that this Court found the case
to be fit to exercise powers under Section 482 Cr.P.C.
10. In M. Mohan (supra) A-3 was stated to have told
Kamatchi (victim) that "if you want to go by a car,
you have to bring a car from your family", whereupon
said Kamatchi, her husband and the child were
required to take public transport. Few days thereafter
the victim committed suicide. After filing of the
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charge-sheet A-3 was summoned under Sections 304B,
498A and 306 IPC. In proceedings under Section 482
Cr.P.C., the High Court quashed the charges under
Sections 498A and 304B IPC but held that the
accused had to face trial for the offence under Section
306 IPC, which view was under challenge before this
Court. In the facts and circumstances of the case, this
Court made following observations in paragraphs 48
and 49:
"48. In the instant case, what to talk of
instances of instigation, there are even no
allegations against the appellants. There is also
no proximate link between the incident of 14-1-
2005 when the deceased was denied permission
to use the Qualis car with the factum of suicide
which had taken place on 18-1-2005.
Undoubtedly, the deceased had died because of
hanging. The deceased was undoubtedly
hypersensitive to ordinary petulance, discord and
differences which happen in our day- to-day life.
In a joint family, instances of this kind are not
very uncommon. Human sensitivity of each
individual differs from person to person. Each
individual has his own idea of self-esteem and
self-respect. Different people behave differently in
the same situation. It is unfortunate that such
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an episode of suicide had taken place in the
family. But the question that remains to be
answered is whether the appellants can be
connected with that unfortunate incident in any
manner?
49. On a careful perusal of the entire material
on record and the law, which has been declared
by this Court, we can safely arrive at the
conclusion that the appellants are not even
remotely connected with the offence under Section
306 IPC. It may be relevant to mention that
criminal proceedings against the husband of the
deceased Anandraj (A-1) and Easwari (A-3) are
pending adjudication."
11. In State of Kerala and others (supra) the person
who committed suicide was a CBI official investigating
into a crime. According to the suicide note left behind
by the victim, two officials of CBI, who were in fact
juniors to him, an advocate as well as Chief Judicial
Magistrate were statedly responsible for the suicide.
Again, considering the facts, this Court upheld the
decision of the High Court in quashing the FIR. The
observations of this Court in paragraph 12 are
noteworthy. Said paragraph 12 was to the following
effect:
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"12. As we find from the narration of facts and
the material brought on record in the case at
hand, it is the suicide note which forms the
fulcrum of the allegations and for proper
appreciation of the same, we have reproduced it
hereinbefore. On a plain reading of the same, it
is difficult to hold that there has been any
abetment by the respondents. The note, except
saying that the respondents compelled him to do
everything and cheated him and put him in deep
trouble, contains nothing else. The respondents
were inferior in rank and it is surprising that
such a thing could happen. That apart, the
allegation is really vague. It also baffles reason,
for the Department had made him the head of
the investigating team and the High Court had
reposed complete faith in him and granted him
the liberty to move the Court, in such a
situation, there was no warrant to feel cheated
and to be put in trouble by the officers
belonging to the lower rank. That apart, he has
also put the blame on the Chief Judicial
Magistrate by stating that he had put pressure
on him. He has also made the allegation against
the advocate."
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13. We now consider the facts of the present case.
There are definite allegations that the first respondent
would keep on calling the wife of the victim on her
mobile and keep harassing her which allegations are
supported by the statements of the mother and the
wife of the victim recorded during investigation. The
record shows that 3-4 days prior to the suicide there
was an altercation between the victim and the first
respondent. In the light of these facts, coupled with
the fact that the suicide note made definite allegation
against first respondent, the High Court was not
justified in entering into question whether the first
respondent had the requisite intention to aid or
instigate or abate the commission of suicide. At this
juncture when the investigation was yet to be
completed and charge-sheet, if any, was yet to be filed,
the High Court ought not to have gone into the aspect
whether there was requisite mental element or
intention on part of the respondent.
14. We, therefore, find merit in the submissions
advanced on behalf of the appellant. The judgment and
order under appeal is, therefore, set aside and the
present appeal is allowed. Since the investigation into
the matter was stalled as a result of the petition
under Section 482 Cr.P.C., we direct the concerned
authorities to complete the investigation as early as
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possible."
5.5.4 Further, it would also be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of Gurcharan
Singh versus State of Punjab reported in (2020) 10 SCC 200,
more particularly paragraph 15 thereof, which is relevant,
which reads as under :
"15. As in all crimes, mens rea has to be
established. To prove the offence of abetment,
as specified under Sec 107 of the IPC, the
state of mind to commit a particular crime
must be visible, to determine the culpability.
In order to prove mens rea, there has to be
something on record to establish or show
that the appellant herein had a guilty mind
and in furtherance of that state of mind,
abetted the suicide of the deceased. The
ingredient of mens rea cannot be assumed to
be ostensibly present but has to be visible
and conspicuous. However, what transpires in
the present matter is that both the Trial
Court as well as the High Court never
examined whether appellant had the mens
rea for the crime, he is held to have
committed. The conviction of Appellant by the
Trial Court as well as the High Court on
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the theory that the woman with two young
kids might have committed suicide, possibly
because of the harassment faced by her in
the matrimonial house, is not at all borne
out by the evidence in the case. Testimonies
of the PWs do not show that the wife was
unhappy because of the appellant and she
was forced to take such a step on his
account.
16. The necessary ingredients for the
offence under section 306 IPC was considered
in the case S.S.Chheena Vs. Vijay Kumar
Mahajan, (2010) 12 SCC 190 where
explaining the concept of abetment, Justice
Dalveer Bhandari wrote as under:-
"25. Abetment involves a mental
process of instigating a person or
intentionally aiding a person in doing
of a thing. Without a positive act on
the part of the accused to instigate or
aid in committing suicide, conviction
cannot be sustained. The intention of
the legislature and the ratio of the
cases decided by this Court is clear
that in order to convict a person
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under Section 306 IPC there has to
be a clear mens rea to commit the
offence. It also requires an active act
or direct act which led the deceased
to commit suicide seeing no option
and that act must have been intended
to push the deceased into such a
position that he committed suicide."
17. While dealing with a case of abetment
of suicide in Amalendu Pal alias Jhantu vs.
State of West Bengal, (2010) 1 SCC 707 Dr.
Justice M.K. Sharma writing for the Division
Bench explained the parameters of Section
306 IPC in the following terms:
"12. Thus, this Court has consistently
taken the view that before holding an
accused guilty of an offence under
Section 306 IPC, the court must
scrupulously examine the facts and
circumstances of the case and also
assess the evidence adduced before it
in order to find out whether the
cruelty and harassment meted out to
the victim had left the victim with no
other alternative but to put an end to
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her life. It is also to be borne in
mind that in cases of alleged
abetment of suicide there must be
proof of direct or indirect acts of
incitement to the commission of
suicide. Merely on the allegation of
harassment without there being any
positive action proximate to the time
of occurrence on the part of the
accused which led or compelled the
person to commit suicide, conviction in
terms of Section 306 IPC is not
sustainable.
13. In order to bring a case within
the purview of Section 306 IPC there
must be a case of suicide and in the
commission of the said offence, the
person who is said to have abetted
the commission of suicide must have
played an active role by an act of
instigation or by doing certain act to
facilitate the commission of suicide.
Therefore, the act of abetment by the
person charged with the said offence
must be proved and established by
the prosecution before he could be
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convicted under Section 306 IPC."
5.5.5 Further, in the judgment of the Hon'ble Apex
Court in the case of Neeharika Infrastructure Pvt. Ltd.
versus State of Maharashtra and Others reported in 2021
SCC OnLine SC 315, and more particularly para 80 thereof,
which is relevant, which read as under :
"80. In view of the above and for the
reasons stated above, our final conclusions
on the principal/core issue, whether the
High Court would be justified in passing
an interim order of stay of investigation
and/or "no coercive steps to be adopted",
during the pendency of the quashing
petition under Section 482 Cr.P.C and/or
under Article 226 of the Constitution of
India and in what circumstances and
whether the High Court would be justified
in passing the order of not to arrest the
accused or "no coercive steps to be adopted"
during the investigation or till the final
report/chargesheet is filed under Section
173 Cr.P.C., while dismissing/disposing
of/not entertaining/not quashing the criminal
proceedings/complaint/FIR in exercise of
powers under Section 482 Cr.P.C. and/or
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under Article 226 of the Constitution of
India, our final conclusions are as under:
i) Police has the statutory right and duty
under the relevant provisions of the Code
of Criminal Procedure contained in Chapter
XIV of the Code to investigate into a
cognizable offence;
ii) Courts would not thwart any
investigation into the cognizable offences;
iii) It is only in cases where no cognizable
offence or offence of any kind is disclosed
in the first information report that the
Court will not permit an investigation to
go on;
iv) The power of quashing should be
exercised sparingly with circumspection, as
it has been observed, in the 'rarest of rare
cases (not to be confused with the
formation in the context of death penalty).
v) While examining an FIR/complaint,
quashing of which is sought, the court
cannot embark upon an enquiry as to the
reliability or genuineness or otherwise of
the allegations made in the FIR/complaint;
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vi) Criminal proceedings ought not to be scuttled at
the initial stage;
vii) Quashing of a complaint/FIR should be an
exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping
the jurisdiction of the police, since the two organs of
the State operate in two specific spheres of activities
and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are
complementary, not overlapping;
x) Save in exceptional cases where non-interference
would result in miscarriage of justice, the Court and
the judicial process should not interfere at the stage
of investigation of offences;
xi) Extraordinary and inherent powers of the Court
do not confer an arbitrary jurisdiction on the Court
to act according to its whims or caprice;
xii) The first information report is not an
encyclopaedia which must disclose all facts and
details relating to the offence reported. Therefore,
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when the investigation by the police is in progress,
the court should not go into the merits of the
allegations in the FIR. Police must be permitted to
complete the investigation. It would be premature to
pronounce the conclusion based on hazy facts that the
complaint/FIR does not deserve to be investigated or
that it amounts to abuse of process of law. After
investigation, if the investigating officer finds that
there is no substance in the application made by the
complainant, the investigating officer may file an
appropriate report/summary before the learned
Magistrate which may be considered by the learned
Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very
wide, but conferment of wide power requires the
court to be more cautious. It casts an onerous and
more diligent duty on the court;
xiv) However, at the same time, the court, if it
thinks fit, regard being had to the parameters of
quashing and the self-restraint imposed by law, more
particularly the parameters laid down by this Court
in the cases of R.P. Kapur (supra) and Bhajan Lal
(supra), has the jurisdiction to quash the
FIR/complaint;
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xv) When a prayer for quashing the FIR is made by
the alleged accused and the court when it exercises
the power under Section 482 Cr.P.C., only has to
consider whether the allegations in the FIR disclose
commission of a cognizable offence or not. The court
is not required to consider on merits whether or not
the merits of the allegations make out a cognizable
offence and the court has to permit the investigating
agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable
and/or the aforesaid aspects are required to be
considered by the High Court while passing an
interim order in a quashing petition in exercise of
powers under Section 482 Cr.P.C. and/or under Article
226 of the Constitution of India. However, an interim
order of stay of investigation during the pendency of
the quashing petition can be passed with
circumspection. Such an interim order should not
require to be passed routinely, casually and/or
mechanically. Normally, when the investigation is in
progress and the facts are hazy and the entire
evidence/material is not before the High Court, the
High Court should restrain itself from passing the
interim order of not to arrest or "no coercive steps to
be adopted" and the accused should be relegated to
apply for anticipatory bail under Section 438 Cr.P.C.
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before the competent court. The High Court shall not
and as such is not justified in passing the order of
not to arrest and/or "no coercive steps" either during
the investigation or till the investigation is completed
and/or till the final report/chargesheet is filed under
Section 173 Cr.P.C., while dismissing/disposing of the
quashing petition under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of India. xvii)
Even in a case where the High Court is prima facie
of the opinion that an exceptional case is made out
for grant of interim stay of further investigation,
after considering the broad parameters while
exercising the powers under Section 482 Cr.P.C.
and/or under Article 226 of the Constitution of India
referred to hereinabove, the High Court has to give
brief reasons why such an interim order is warranted
and/or is required to be passed so that it can
demonstrate the application of mind by the Court and
the higher forum can consider what was weighed
with the High Court while passing such an interim
order.
xviii) Whenever an interim order is passed by the
High Court of "no coercive steps to be adopted"
within the aforesaid parameters, the High Court must
clarify what does it mean by "no coercive steps to be
adopted" as the term "no coercive steps to be
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adopted" can be said to be too vague and/or broad
which can be misunderstood and/or misapplied."
5.6 In light of the above considerations, I am of the
opinion that the allegations levelled against the present
petitioner, prima facie ingredients under the BNS, read with
the Gujarat Money Lenders Act are satisfied. The allegations
are required to be tested during the trial. Therefore, without
further making any comments on the merits of the case, I
am not inclined to exercise the powers under Section 528 of
the Bharatiya Nagrik Suraksha Sanhita, 2023.
5.7 Furthermore, it is important to take judicial notice
of serious issue in the society, particularly arising in this
particular region of the State, where illegal financial activities
by way of charging exorbitant interest rates, also compounded
interest, and the snatching away of valuable properties some
time under such duress from indebted individuals are on the
rise. This menace must be addressed firmly with iron hand.
This Court cannot be a silent spectator when such
highhanded activities resulted into a cause for individuals to
commit suicides, causing immense hardships and sufferings to
members of their families. Therefore, the investigating
authority should also examine these incidents promptly and
must carry out investigation in proper manner and such
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matter should be tested in the trial, in accordance with law.
In light of these considerations, the present petition lacks
merit and required to be dismissed.
5.8 In the present case, though the suicide note was
of the two months before committing suicide, but the video
made by the deceased before committing suicide reveals that
there was continuous harassment by the accused to the
deceased, which cannot be ignored by this Court. Further, as
reported by the police authority in the report submitted today
through the learned APP, the said suicide note as well as
the mobile phone in which the deceased has made a video
before committing suicide, specifically stating the names of
the accused for harassment are ceased by the authority and
sent to the Forensic Science Laboratory for analysis and the
report from the FSL is awaited. Under the circumstances and
since the trial is already commenced, this Court should not
exercise the powers under Section 528 of the Bharatiya
Nagrik Suraksha Sanhita, 2023 in favour of the petitioner.
6. There cannot be any dispute with regard to the
law enunciated in the decisions of the Hon'ble Apex Court
relied upon by the learned advocate for the petitioner,
however, it cannot be helpful to the petitioner any further in
view of the facts and circumstances of the present case. The
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present case does not fall within the purview of these
decisions with such facts. Therefore, the present petition
deserves to be dismissed.
7. In view of above facts and circumstances of the case,
the present petition needs to be dismissed and is dismissed
accordingly.
(SANDEEP N. BHATT,J)
M.H. DAVE
