Gujarat High Court

Narendrasinh Virusinh @ Viraji Barad vs State Of Gujarat on 4 February, 2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                            R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1592 of 2025

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                                         NARENDRASINH VIRUSINH @ VIRAJI BARAD
                                                        Versus
                                               STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR. SURAJ A SHUKLA(7185) for the Applicant(s) No. 1
                       MR. PRANAV DHAGAT, APP for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 04/02/2025

                                                              ORAL ORDER

1. The present petition is filed for seeking the

following reliefs:

"A. That this Hon'ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or directions to quash and set aside the FIR bearing I-CR. No. 11195055240042 of 2024 lodged before Vadgam Police Station, Banaskantha on 15.02.2024 for the offences punishable under Section 306, 384, 506(2), 114 of the Indian Penal Code and under Section 39, 40, 42, 43 of Gujarat Money Lender's Act annexed at Annexure "A" and further be pleased to quash and set aside the charge-sheet bearing No. 16 of 2024 on 08.04.2024 which got culminated into Sessions Case No. 55 of 2024 pending before the Ld. 3rd Add. District Judge, Palanpur along with all the further and

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consequent proceedings thereto qua the Petitioner;

B. Pending admission, hearing and final disposal of present Application/Petition, this Hon'ble Court may be pleased to stay and suspend the further proceedings of Sessions Case No. 55 of 2024 pending before the Ld. 3rd Add. District Judge, Palanpur along with all the further and consequent proceedings thereto qua the Petitioner;

C. Such other and further reliefs as this Hon'ble Court may deem fit and proper be granted."

2. Heard Mr. Darshit Raval, learned advocate

appearing on behalf of Mr. Surat Shukla, learned

advocate for the petitioner and learned APP Mr. Pranav

Dhagat for the respondent No.1 - State.

3. Mr. Darshit Raval, learned advocate appearing on

behalf of Mr. Surat Shukla, learned advocate for the

petitioner has submitted that no ingredients of Section

107 of the I.P.C. is satisfied considering the nature of

allegations in the FIR as well as even considering the

papers of the charge-sheet. He has further submitted

submitted that while considering the application for

anticipatory bail, the Court has also considered this

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aspect and, therefore, he has submitted that there is no

mens rea on the part of the petitioner for the alleged

act as essentially, the dispute is regarding the repayment

of the amount for the purchase of cow. He has further

submitted that the brother of the deceased has also

borrowed some money; and pursuant to that, he has

given some cheques to the present petitioner, and the

same are bounced and, therefore, complaint under Section

138 of the Negotiable Instruments Act has been filed.

Hence, the present FIR is a counterblast to the

complaint filed by the present petitioner and, therefore,

he has submitted that continuation of the proceeding

pursuant to the said FIR and charge-sheet will amount

to abuse of process of law as no offence is made out. In support of his submissions, he has relied upon the

judgment of the Hon'ble Apex Court in the case of Mohit

Singhal and Anr. vs. State of Uttarakhand and Ors.

reported in 2023 SCC OnLine SC 1598, more

particularly, paragraph 9 is relevant, and has submitted

that the matter is required to be considered on merits

and, therefore, he has prayed to grant the prayers made

in the present petition by exercising the powers under

Article 226/227 of the Constitution of India read with

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Section 528 of the Bharatiya Nagarik Suraksha Sanhita,

2023.

4. Learned APP Mr. Pranav Dhagat for the respondent

No.1 - State has submitted that on earlier occasion also,

the petition was filed before this Court by way of

Special Criminal Application No.14788 of 2024, which

was withdrawn view to avail alternative remedy and

permission was granted for withdrawal vide order dated

18.11.2024, which the petitioner has not availed the

alternative remedy, and once again the present petition

has been filed, whereby the same set of facts are

existing and no change of circumstances is there and,

therefore, he has submitted that present second petition

is required to be dismissed on that count also. Otherwise on merits also, considering the material available on the

record and considering the statements of the other

witnesses, which are part of the charge-sheet and also

on bare reading of the FIR, it transpires that there is

continuous demand of the amount of money as well as

exorbitant rate of interest to the extent 10% per month

on such principal amount by the present petitioner from

the deceased and the deceased, due to continuous

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harassment till the last day of his life, has no other

option, but to commit suicide and, therefore, he has

submitted that when prima facie case is made out and

after proper investigation, charge-sheet is also filed

against the accused person, there is no reason to

interfere in the present petition and, therefore, he has

prayed to dismiss the present petition.

5.1 I have considered the rival submissions made at the

bar. At this stage, learned advocate for the petitioner

has clarified that though the earlier petition is

withdrawn with the view to avail appropriate remedy; in

the meantime, charges are framed by the trial court and,

therefore, the petitioner has no other remedy but to

again approach this Court. Considering this fact that it is found that when the Court was not inclined to grant

any relief in Special Criminal Application No.14788 of

2024 and it is disposed of as withdrawn with a view to

avail appropriate remedy available under the law vide

order dated 18.11.2024, which reads as follows:

"Learned advocate for the petitioner, on receiving instructions from his client, seeks permission to withdraw this petition with a view to avail appropriate remedy

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available under the law.

Permission, as prayed for, isgranted. This petition is disposed of as withdrawn. This Court has not expressed any opinion on the merits of the matter."

5.2 Furthermore, considering this fact, thereafter there

is no change in circumstances except the framing of

charges by the trial court and considering the fact that

the material, which was existing on that day, is the

same as today and when the Court was not inclined to

grant any relief on that day in Special Criminal

Application No.14788 of 2024 and the matter was

withdrawn with the view to avail appropriate remedy,

and again such petition, without any change in

circumstances, is filed, which is not required to be considered on that count also and, therefore, the matter

is required to be dismissed.

5.3 However, considering the present matter on merits,

it transpires that there is serious allegation about

charging the exorbitant rate of interest up to 10% per

month by the present petitioner and that too without

holding any license under the Gujarat Money-Lenders

Act, 2011 (for short "the Money Lenders Act") and even

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the provisions of Money Lenders Act are required to be

followed in true, letter and spirit. Assuming that if the

petitioner is having license then also such exorbitant rate

of interest of 10% per month is not permissible even

under the provisions of Money Lenders Act. From the

material available on the record and on bare reading of

the charge-sheet, it clearly found that there is sufficient

material to indicate that there is constant demand of the

interest as well as principal amount by giving threats to

the deceased person till the last day of the life of the

deceased person, which clearly constitute prima facie offence against the present petitioner under Section 306

of the Indian Penal Code and also under Section 40 and

42 of the Money Lenders Act are also applicable in the facts of the present case.

5.4 There is no quarrel about the law laid down by the

Hon'ble Apex Court in the judgment in the case of

Mohit Singhal and Anr. (supra), however, this Court,

while considering the identical matter i.e. Criminal Misc.

Application No.2288 of 2025, had considered the facts of

the case where the Money Lenders Act and Section 306

of the I.P.C. are also applied. Relevant paragraphs of

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that judgment reads as follows:

"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.

• 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

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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 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 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 :

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"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, 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

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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

(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

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details are available on the record of the Investigating 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 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

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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 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

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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 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

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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 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

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and grave allegations of amassing wealth disproportionate to the 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 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

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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 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

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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 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

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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 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

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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 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:

"12. As we find from the narration of facts and the material

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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."

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

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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 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

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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 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 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

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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 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

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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 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 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

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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;

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;

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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, 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

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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;

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

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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. 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 adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

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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 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

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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."

5.6 In view of the above, considering the facts of the

present case, whereby there is sufficient material to

indicate that there is constant demand of exorbitant rate of interest as well as principal amount from the accused

person along with the threats of life and also regarding

abduction of the deceased and also considering the

continuous harassment, it cannot be said that prime facie, ingredients of Sections 107 and 306 of the I.P.C. are not satisfied in the facts of the present case and,

therefore, judgment, which is relied upon by the present

petitioner, is not helpful to the facts and circumstances

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of the present case. Therefore, in view of the above, this

Court has no other option, but to dismiss the present

petition as the present petition is found merit-less.

5.7 Furthermore, the repeated attempts to file such

petitions are certainly required to be deprecated, which

consume lots of judicial time, which can be considered

the wastage of the judicial time and, therefore, petition