CR.MA/2726/2008 1/25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 2726 of 2008 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = RAJKUMAR MADHABHAI VEGDA & 1 - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================= Appearance : MS. KRUTI M SHAH for petitioners MR LB DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR BHAVESH P TRIVEDI for Respondent(s) : 2, ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 27/08/2008 ORAL JUDGMENT CR.MA/2726/2008 2/25 JUDGMENT 1. The facts of the case stated briefly are that the respondent No.2 – first informant had lodged a complaint against the petitioners herein alleging commission of the offence punishable under Sections 306 and 114 of the Indian Penal Code, which came to be registered as a First Information Report vide Jetpur City Police Station I – C.R. No.29/2008. It is quashment of this First Information Report which is sought for by way of the present application under Section 482 of the Code of Criminal Procedure, 1973 (the Code). 2. Heard Ms.Kruti M. Shah, learned advocate for the petitioners, Mr.L.B.Dabhi, learned Additional Public Prosecutor for respondent No.1 – State of Gujarat and Mr.Bhavesh Trivedi, learned advocate for the respondent No.2 – first informant. 3. Ms.Kruti Shah, learned advocate for the petitioners has submitted that the petitioners are absolutely innocent persons who have been falsely implicated at the instance of one Police Inspector who was nursing a grudge against the present petitioners and had many times threatened that he would file false case against them. It is submitted that a perusal of the First Information Report makes it amply clear that the main allegations are against the Sandesh Newspaper Agency, of which the deceased was an agent, however, strangely, no person of the Sandesh Newspaper Agency has been arraigned as an accused in the First Information Report wherein the petitioners and one Kishor Maru are the only persons who have been CR.MA/2726/2008 3/25 JUDGMENT named as accused. It is further submitted that, looking to the suicide note in question, it is apparent that the deceased was under pressure from the Sandesh Newspaper Agency for clearance of cheques which had been dishonoured and the agents were not making payment, which had forced him to take the step of committing suicide. It is contended that though in the First Information Report, there is also a reference that the petitioners were threatening to kill him and since then he was living under tension, there is no allegation to the effect that the petitioners herein had compelled him to commit suicide. It is alleged that though the main reason for committing suicide is attributed to the Sandesh Newspaper Agency, the police have deliberately not arraigned any person connected with the Sandesh Newspaper Agency as accused which bears out the malafide intention on part of the police authorities. 4. It is submitted that the allegation in the First Information Report is regarding abetment to commit suicide, however, the general allegations made in the First Information Report are not sufficient to attribute the intention of abetment to the petitioners. Mens rea which is an essential ingredient for the offence of abetment of suicide is completely absent in the present case. It is pointed out that the only allegation against the petitioners is that they were threatening to kill the deceased and his family members, however, despite the aforesaid position, no complaint has been lodged by the deceased before any authority, which clearly shows that the entire story is a bogus and concocted one. It is CR.MA/2726/2008 4/25 JUDGMENT further submitted that the incident in question had occurred at about 3.00 p.m. on 25th February, 2008, whereas the First Information Report has been lodged on 26th February, 2008 at about 21.00 hours. Hence, the belated filing of the First Information Report by the complainant does not rule out the possibility of false implication of the petitioners. It is, accordingly, submitted that no offence as alleged can be stated to have been made out from the allegations made in the complaint, hence, the First Information Report in question is required to be quashed, in the interest of justice. 5. In support of her submissions, the learned advocate for the petitioners has placed reliance on the following decisions : [a] The decision of the Supreme Court in the case of Sanju alias Sanjay Singh Sengar v. State of M.P., (2002)5 SCC 371. [b] The decision of the Supreme Court in the case of Netai Dutta v. State of W.B., (2005)2 SCC 659. [c] The decision of the Supreme Court in the case of Pawan Kumar Bhalotia v. State of W.B., (2005)2 SCC 661. [d] The decision of the Supreme Court in the case of Swamy Prahaladdas v. State of M.P. And another, 1995 Supp (3) SCC 438. CR.MA/2726/2008 5/25 JUDGMENT [e] The decision of the Supreme Court in the case of Randhir Singh and another v. State of Punjab, (2004)13 SCC 129. [f] The decision of the Supreme Court in the case of Hans Raj v. State of Haryana, (2004)12 SCC 257. [g] The decision of this Court in the case of A.K.Chaudhary v. State of Gujarat, 2005(3) GLH 444. [h] The decision of this Court in the case of S.G.Munia v. State of Gujarat, 2002(3) GLH 417. [i] The decision of this Court in the case of State of Gujarat v. Sunilkumar K. Jani, 1996(2) GLH 5. [j] The decision of the Supreme Court in the case of Rameshbhai Ranchhodbhai v. State of Gujarat, 1989(2) GLH 240. [k] The decision of this Court in the case of State of Gujarat v. Kalavatiben Liladhar, 2007(2) GLR 1272. [l] The decision of this Court in the case of State of Gujarat v. Pradyuman Ramanlal Mehta, 1998(2) GLH 904. [m] The decision of the Supreme Court in the case of State of West Bengal v. Swapan Kumar Guha, (1982)1 SCC 561. CR.MA/2726/2008 6/25 JUDGMENT [n] The decision of the Supreme Court in the case of Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojira Angre, AIR 1988 SC 709. 6. On the other hand, Mr.Bhavesh Trivedi, learned advocate for the respondent No.2 – first informant has vehemently opposed the application. It is submitted that, at the stage of lodging of the First Information Report, the facts are hazy and at such a stage, this Court should not intervene. It is submitted that the investigation is the domain of the investigating officer and the investigating agency must not be restrained from investigating the crime. It is submitted that looking to the First Information Report and the suicide note in question, it is apparent that the deceased was indebted to Sandesh Newspaper and had issued cheques for payment of such dues, hence, they were forcing for clearance of the cheques. Hence, the deceased was already under a tension in that regard, however, the petitioners knowing full well that the deceased was under great tension, were consistently harassing and threatening the deceased and as such, have abetted the commission of suicide by the deceased. It is submitted that the petitioners were aware of the weak financial position of the deceased and thereafter, when the harassment at the hands of the petitioners became unbearable, the deceased committed suicide. Therefore, there is a clear mens rea on the part of the petitioners. 7. The next submission advanced is that the deceased had named the petitioners in the suicide note, which is in the CR.MA/2726/2008 7/25 JUDGMENT nature of a dying declaration, and that, at this stage, it must be believed to be true. The learned advocate has further submitted that the allegations made in the First Information Report clearly make out a case against the petitioners. The petitioners are alleged to have given threats to kill the deceased and his family members as well as to blackmail him with a view to coerce him into joining their association knowing full well that the deceased was under high stress. In the circumstances, the First Information Report which clearly discloses the offence requires investigation and cannot be quashed. It is submitted that the First Information Report is only for the purpose of initiation of criminal prosecution. That the suicide note in question only forms part of the material collected during investigation and this Court, at this stage, cannot interpret the suicide note and come to the conclusion that the offence under Section 306 of the Indian Penal Code is not made out. As regards the delay in lodging the First Information Report, it is submitted that, as the family members were mentally upset and were busy with the religious activities in connection with the funeral of the deceased, there was some delay in the lodging of the First Information Report. That the reasons for the delay are genuine. Besides, the names of the accused are disclosed in the suicide note itself, hence, it cannot be said that the petitioners have been falsely implicated. It is, accordingly, submitted that, at this stage, on the facts and circumstances of the case, there is no warrant for interference by this Court. 8. In support of his submissions, the learned advocate for CR.MA/2726/2008 8/25 JUDGMENT the respondent No.2 – first informant has placed reliance on the following decisions : [a] The decision of the Supreme Court in the case of State of Karnataka v. Pastor P. Raju, (2006)6 SCC 728. [b] The decision of the Supreme Court in the case of S.M.Datta v. State of Gujarat, AIR 2001 SC 3253. [c] The decision of the Supreme Court in the case of M/s Jayant Vitamins Ltd. v. Chaitanyakumar and another, AIR 1992 SC 1930. [d] The decision of the Supreme Court in the case of Som Mittal v. Government of Karnataka, 2008 (1) GLH 493. [e] The decision of the Supreme Court in the case of Union of India v. Prakash P. Hinduja, 2003 ALL MR (Cri) 1578 [SC]. [f] The decision of the Supreme Court in the case of State of Karnataka v. M.Devendrappa and another, (2002)3 SCC 89. [g] The decision of the Supreme Court in the case of Rajesh Bajaj v. State NCT of Delhi and others, (1999)3 SCC 259. [h] The decision of the Supreme Court in the case of CR.MA/2726/2008 9/25 JUDGMENT State of Kerala v. O.C.Kuttan and others, (1999)2 SCC 651. [i] The decision of the Supreme Court in the case of Satvinder Kaur v. State (Govt. of NCT of Delhi) and another, (1999)8 SCC 728. [j] The decision of the Supreme Court in the case of Dhanalakshmi v. R.Prasanna Kumar and others, 1990 (Supp) SCC 686. [k] The decision of the Supreme Court in the case of Didigam Bikshapathi v. State of A.P., 2008 ALL MR (Cri) 870 [SC]. [l] The decision of the Supreme Court in the case of Divine Retreat Centre v. State of Kerala, rendered in Appeal (Cri) No.472 of 2008. 9. Mr.L.B.Dabhi, learned Additional Public Prosecutor has submitted that, at this stage, the involvement of the petitioners is disclosed. It is stated in the suicide note itself that the threats had been given and that the petitioners and the deceased did not have good relations. It is, accordingly, submitted that the investigation should be permitted to continue and that no case is made out for quashing the First Information Report in question. 10.This Court has considered the submissions advanced by the learned Advocates for the parties and has perused the record of the case, as produced before it. CR.MA/2726/2008 10/25 JUDGMENT 11.With a view to properly appreciate the controversy involved in the present case, it would be necessary to refer to the contents of the First Information Report. The allegations made in the First Information Report are to the effect that the deceased Mulshankarbhai who was the elder brother of the first informant, was working as the sole agent of Sandesh daily and press representative at Jetpur since the last fifteen years. His work involved sale of Sandesh newspapers and getting subscriptions as well as covering newsworthy events in Jetpur City Taluka and preparing news reports and forwarding them. The deceased used to live with his family and work from his office viz. Gayatri News Agency and also used to carry on business of Girnar Transport. On 25th February, 2008, when the first informant was at his residence at Jetalsar, at about 3 O'clock, in the afternoon, a person called Aziz Bodhani who had a shop by the name of Creative Offset next to the office of his brother Mulshankar, called him up on telephone and informed him that his elder brother Mulshanker had committed suicide in his office by hanging himself and that his dead body was hanging there. Thereafter, he immediately proceeded to his brother's office on a motorcycle and saw a crowd outside the office and at that time, Pravinbhai Goswami, who works at his brother's office, and Shaileshbhai and his sister in-law Gitaben and Sanadbhai Mehta, Aziz Bodhani, Deepak Joshi and both his brothers and Pareshbhai Sujitbhai were also present there. In the presence of all those persons, he raised the CR.MA/2726/2008 11/25 JUDGMENT closed shutter of the office and opened it and saw that inside the office, in a glass cabin, his brother Mulshankar was hanging in a dead condition from a rope secured to a hook on the ceiling. Hence, he, Deepak Joshi and Azizbhai immediately took down the dead body and upon the arrival of the ambulance, locked the office and took the dead body of his brother in the ambulance to the Jetpur Government Hospital and there, the police officer along with his staff came and prepared the papers, got the Post mortem examination carried out and upon arrival of his parents and son of deceased Mulubhai, the dead body was taken for performing the last rites. Till then the body was kept at the hospital. In the meanwhile, the scene of offence panchnama was drawn and inside the office, on the table in the glass cabin, a note in the handwriting of his brother was found on the letter-pad of Gayatri News Agency wherein his brother had put his stamp and written the date 25.2.08 and had signed in his handwriting. That the first informant recognized the said signature and handwriting. They had read the note wherein it was written that the sub-agents here had got his cheques returned, consequently his cheques to Sandesh had also been returned, and Sandesh was pressurizing him to pass the same and were telling him to lodge criminal complaints and that, he was tired of telling the local agents and nobody had made payments in time, hence, he had to take this step. Now, they should close the newspaper business and if the subscriptions are received, they should be given to the paper. A large number of monthly bills of agents are unpaid and nobody pays on time, hence, he was fed up. Also Rajesh CR.MA/2726/2008 12/25 JUDGMENT Madhabhai Vegda, Sanjay Vala and Kishore Maru of Jetpur were threatening to kill him, and from that day, he was under tension. The first informant has further stated that, on the basis of the note, he was of the belief that the deceased was under tension on account of the amount towards bills of Sandesh Newspapers remaining unpaid and because Rajesh Madhabhai Vegda, Sanjay Vala and Kishore Maru, residents of Jetpur, all three of them often used to threaten to kill his brother and his family members as well as to blackmail him. Moreover, these three persons and others had formed the Jetpur City and Taluka Newspapers Association, but as they were indulging in activities which were contrary to the duties of a press reporter and were blackmailing the common public, his brother and Dilipbhai Tajwani of Jai Hind, Sureshbhai Mehta of Gujarat Samachar, Jitubhai Moghwani of Jansatta, Nanubhai Oza of Atul Newspapers, had got together and issued a public notice. Since then, these three persons had harassed his brother and often used to give threats to kill him and his family members. Hence, on account of fear of these three persons, his brother had committed suicide by hanging himself. 12.In the background of the facts noted above and the contents of the First Information Report, what is required to be examined is, as to whether on the allegations made in the First Information Report, the offence under Section 306 of the Indian Penal Code is made out. CR.MA/2726/2008 13/25 JUDGMENT 13.This Court, in the case of State of Gujarat v. Pradyuman Ramanlal Mehta, 1998[2] GLH 904, has interpreted the provisions of Section 306 IPC and has held as follows : “[4] Section 306 of the Indian Penal Code reads as under : “306. 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] The meaning of the word “abetment” emerges from Section 107, which reads as under : “107. Abetment of a thing – A person abets the doing of a thing, who - First – Instigates any person to do that thing; or Secondly – Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly – Intentionally aids, by any act or illegal CR.MA/2726/2008 14/25 JUDGMENT omission, the doing of that thing. Explanation 1 - A person who, by wilful misrepresentation, or by a wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration : A, a public officer, is authorised by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. 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.” [6] In the context of the facts of the present case, where defamatory articles are said to have been published in a daily of which the respondent No.2 was the editor, one has to examine whether the suicide said to have been committed by Narsinhbhai CR.MA/2726/2008 15/25 JUDGMENT on reading of the articles published which were defamatory of him would amount to abetment by the respondents to enable Narsinhbhai to commit suicide. In the present case, “doing of a thing” is the suicide and the question is, can it be said that by publishing the articles the respondents had abetted that doing of the thing i.e. Suicide? For that purpose, firstly one has to examine whether there was any instigation by the respondents to Narsinhbhai to commit suicide, i.e. “to do that thing” as per the language of Section 107 of the IPC. Furthermore, it has to be seen whether the respondents had engaged in any conspiracy for the doing of that thing namely for making Narsinhbhai commit suicide; and finally, whether the respondents or any of them intentionally aided, by any act or illegal omission, the commission of suicide by Narsinhbhai. The word “abetment” occurring in Section 306 of the IPC is to be construed in the light of its meaning occurring in Section 107 of the IPC because when the same statute gives a meaning to the expression, then that expression should be given that meaning in the provisions appearing therein, unless a contrary intention is expressed or necessarily implied. [7] Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. ... ... ... “ CR.MA/2726/2008 16/25 JUDGMENT 14.Examining the facts of the present case in the light of the aforesaid statutory provisions, what is alleged against the present petitioners in the First Information Report is that the petitioners used to threaten the deceased that they would kill him and his family members, and had also threatened to blackmail him with a view to coerce him into joining their association. As is apparent from the contents of the First Information Report, the same is based upon the suicide note alleged to have been found in the cabin of the first informant's brother's office. From the contents of the suicide note as reproduced in the first information report, it is apparent that the main allegations are levelled against the sub-agents of Sandesh newspaper as well as Sandesh newspaper on the ground that the sub-agents were not making payments regularly and that the cheques issued by them had been dishonoured, and consequently, the cheques issued by the deceased to Sandesh newspaper had also been dishonoured. That Sandesh was pressurizing the deceased for making payments and was asking him to lodge criminal complaints in respect of dishonour of cheques and on account of the pressures associated with the aforesaid, the deceased was fed up and had accordingly taken the extreme step of committing suicide. Insofar as the petitioners are concerned the allegations are to the effect that they were threatening to kill him and from that day, the deceased was under tension. A plain reading of the suicide note as reproduced in the first information report, would clearly show that the deceased was under great stress and depressed. One CR.MA/2726/2008 17/25 JUDGMENT plausible reason could be that as the newspaper agents were not making payments, the deceased was in dire straits insofar as his financial condition is concerned, and to add to his woes, Sandesh was also pressing for recovery of dues. Taking the allegations against the petitioners at their face value, the same could only have aggravated the mental condition of the deceased, nonetheless, it can in no manner be said that the suicide by the deceased was a direct result of the alleged acts of the petitioners. 15.The next point that requires consideration is as to whether on the aforesaid allegations, the petitioners can be said to have abetted the deceased in committing suicide. As held by this Court in the decision referred to hereinabove, abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. Considering the nature of the allegations levelled against the petitioners it is difficult to come to even a prima facie view that the alleged acts of the petitioners were enough to instigate the deceased to commit suicide. Besides as held by the Supreme Court in the case of Sanju v. State of M.P., (2002) 5 SCC 371, presence of mens rea is a necessary concomitant of instigation. On the facts of the present case, there is nothing in the first information report to indicate that the requisite mens rea is present on the part of the petitioners. The contents of the suicide note do not in any way make out the offence against the petitioners. 16.In the case of S.G.Munia & ors. v. State of Gujarat, CR.MA/2726/2008 18/25 JUDGMENT 2002[3] GLH 417, this Court has held that, to constitute an offence under Section 306 of the Indian Penal Code, the most essential ingredient is that there must be prima facie offence to even remotely