Presence of nexus between the act of instigation and the ensuing suicide is mandatory for the offence under Section 306 of IPC: Gujarat High Court

 on : Thu May 06 21:33:02 IST 2021 R CR.MA 1425 2021 JUDGMENTIN THE HIGH COURT OF GUJARAT AT AHMEDABADR CRIMINAL MISC.APPLICATION NO. 14221With R CRIMINAL MISC.APPLICATION NO. 14521 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE A.G.URAIZEE ==========================================================1 Whether Reporters of Local Papers may be allowed to see the judgment NO2 To be referred to the Reporter or not NO3 Whether their Lordships wish to see the fair copy of the judgment NO4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder NO==========================================================KIRANSINH BABARSINH PARMAR VersusSTATE OF GUJARAT ==========================================================Appearance:JM PANCHAL with MR VIRAT G POPAT(3710) for the Applicant(s) No. 1MEET R MODI(8744) for the Respondent(s) No. 1MR. BHADRISH S RAJU(6676) for the Respondent(s) No. 1MR RONAK RAVAK APPfor the Respondent(s) No. 1==========================================================CORAM: HONOURABLE MR. JUSTICE A.G.URAIZEE Date : 05 05 2021 COMMON ORAL JUDGMENT1.Both these applications emanate from the selfsame FIR hence they are being disposed of by this common judgment.Page 1 of 12 on : Thu May 06 21:33:02 IST 2021 R CR.MA 1425 2021 JUDGMENT2.Both these applications under section 439 of the Code of Criminal Procedure 1973are preferred by the applicants for being enlarged on bail in connection with an FIR being C.R. No.A 112140322016420 registered with Mandvi Police Station District Surat for the offence punishable under sections 306 506(2) 386 270 271 201 120(B) and 114 of the Indian Penal Code.3.The facts as could be gathered from the impugned FIR and connected material can be summed up as under: 3.1The first informant is the son of the victim deceased and engaged in the business of road construction and stone quarry which is situated in Khanjroli Gam in Mandvi Taluka and is in the name of first informant’s father since 1982. As per the prosecution case on 07.09.2020 at around 04:30 a.m. In the morning the first informant got a call from his brother informing that the Manager I.e. Sandeepbhai has informed that his father was not found and therefore the first informant went to the quarry in his car and reached there by 05:45 a.m. And his brother also reached. Thereafter the first informant on searching the quarry along with the Manager and other friends a torch slippers and mobile of the father were found. While searching for the father of the first informant the Manager had informed him that at 03:45 a.m. in the morning the father of the first informant had called the Manager and told him that when the first informant comes to the office he will give him the note which is kept in the diary of his father. Therefore the first informant asked that if the Manager had read the note to which he denied and handed over the note to the first informant which was written by the father of the first informant. It was written in the note that father of the first informant had a property of 10 218 sq. mtrs. in Adajan Surat which was sold to accused no.6 viz. Page 2 of 12 on : Thu May 06 21:33:02 IST 2021 R CR.MA 1425 2021 JUDGMENTKishorbhai Bhurabhai on 17.03.2015 based on an agreement to sell on a note at Rs.24 03 88 687 and accused nos.6 and 5 i.e. Kishorbhai Bhurabhai and Kanaiyalal Narola had paid worth Rs.18 00 00 000 in cash to the father of the first informant on different dates and Rs.3 09 30 584 by cheques of different banks. Accused no.6 was the owner of Star Group and on 17.08.2016 an income tax raid was made on his premises and based on the note of agreement to sell there was a tax inquiry on the first informant as well. As a result of the tax inquiry all the truth was told by the father of the first informant however accused no.6 had hidden names of his partners and therefore the liability of paying tax of Rs.8 49 49 020 was on the head of the father of the first informant and further due to sale deed on the original value there was additional capital gain tax of Rs.4 80 00 000 to be paid by the father of the first informant and there was total liability of Rs.13 00 00 000 incurred on the father of the first informant. 3.2 The father of the first informant had talked to accused no.6 whereby he had assured to pay the same. Thereafter on 30.01.2019 accused no.6 had sent a legal notice against the promise and statement given in the income tax to which the father of the first informant had replied through his advocate on 04.02.2019. Thereafter on 02.01.2020 at around 7 8 p.m. the police officers came to the house of the first informant and asked the father to come to the Police Station as Police Inspector had called him immediately to which the father of the first informant denied as it was late and his time to have dinner and told that he will come tomorrow. However the police officials forced him to come and therefore the first informant along with his father went to the Police Station where in the office of the Police Page 3 of 12 on : Thu May 06 21:33:02 IST 2021 R CR.MA 1425 2021 JUDGMENTInspector there were two persons viz. Rajubhai Lakhabhai Bharwad and Hetal Natvarlal Desai who started abusing the father of the first informant and by then accused no.4 viz. Bhavesh Savani came and forced him to give a notarized document immediately in relevance to the disputed land and took them to a notary viz. Hitesh Kanji Solanki at 11:00 p.m. At night and thereby threatened them to sign the said documents. The first informant was forced to be the witness therein. 3.3 Thereafter on 03.01.2020 they had made a notarized document of declaration before the Notary viz. Bharat R. Chauhan. However due to fear it was not produced anywhere and the partner of accused no.6 i.e. accused no.5 had told the father of the first informant that if the said land is transferred in the name of accused no.2 or any person he has no objection and had given a written notarized document to that extent. Thereafter accused no.2 had asked for the same in the end of January at that time the first informant had asked for a detailed document in those regards which was denied and told that only plain document will be given. Thereafter on 04.02.2020 4 5 police officers had come to the house to call the father of the first informant but the mother had denied as the father was not well and was asleep. 3.4The brother of the first informant had sent an application to the Superintendent of Police against the same through WhatsApp after which the police officers had returned back. Thereafter on 18.02.2020 accused nos.2 3 8 and accused no.7 had come at his house of the first informant with ready document of satakhat along with possession and showed the signature and videography of the father of the first informant and had told to prepare for sale deed and gave cheques amounting to Rs.7 55 00 000 Page 4 of 12 on : Thu May 06 21:33:02 IST 2021 R CR.MA 1425 2021 JUDGMENTof different banks and had taken back the prior cheques of other party worth Rs.7 48 00 000 and told to give paper notice that the said land is not sold to anyone. The same were denied by them as proper documentation was required in order to avoid tax disputes. Therefore dispute had arisen again and on 30.07.2020 in Bhesna Gam in a farm house the Police Inspector who was home quarantined had called them by sending WhatsApp location and on reaching at the location other accused nos.2 4 9 and 10 were present and the first informant and his brother were threatened and a notarized agreement of even lesser value was made and sent to the house of the first informant along with accused nos.2 3 4 9 and other police officials for signature of father of the first informant along with authority to do newspaper publication. Therefore the said publication was done in the newspaper on 01.08.2020. Thereafter due to less payment and improper documentation the sale deed was denied by the first informant and accused Police Inspector had kept the documents with him informing that if he makes the sale deed then only he will give back the papers. Thereafter the first informant and his father and brother got notice from Rander Police Station and got called for giving reply but due to fear they did not go to the Police Station and gave reply in writing. The first informant had told his father on 06th September to come early next day so as to go to the Commissioner to make a complaint in the matter of land dispute. However due to the pressure created by the accused persons named in the FIR since past months the father of the first informant had committed suicide according to the first informant in the morning. Therefore the said F.I.R. came to be filed subsequently against accused persons as narrated in the F.I.R. In detail.4.Heard Mr. J.M. Panchal learned advocate with Mr. Virat Popat Page 5 of 12 on : Thu May 06 21:33:02 IST 2021 R CR.MA 1425 2021 JUDGMENTlearned advocate for the applicant Mr. Ronak Raval learned APP for State and Mr. Bhadrish Raju learned advocate for defacto complainant.5.Mr. Panchal submits that investigation is over and chargesheet is filed. He submits that PI Laxmansinh Pratapsinh Bodanais released on bail by coordinate bench vide order dated 28.4.2021 passed in Criminal Misc. Application No.34621. It is his further submission that the applicants are the police constables who were working under the instructions of PI Bodana. He further submits that Kishorebhai Bhurabhai Kosiyahas preferred an application under section 482 of the Code for quashing of the petition being Criminal Misc. Application No.142620 wherein by order dated 5.10.2020 he is protected. It is his further submission that Kanaiyalal Narolais also protected by this court vide order dated 6.11.2020 passed in Special Criminal Application No.59320 under section 482 of the Code. He would also submit that Vijay Baburao Shindeand Mukesh Padmakaranbhai Kulkarniare also released on regular bail by this court by judgment dated 16.3.2021 passed in Criminal Misc. Application No.8021 and Criminal Misc. Application No.2721 respectively. 5.1He submits that the applicants are not named in the suicide note. It is his further submission that there is no allegation against the applicant regarding monetary gain or personal animosity with the deceased. He submits that section 386 of IPC states in respect of offence of extortion of putting a person in fear of death or grievance is not prima facie made out against the applicants. He further submits that the applicants are Government servants and have no criminal antecedents. He submits that the deceased committed suicide on account of circumstances created by himself. He therefore urges that the applicants may be enlarged on bail.5.2He has relied upon the following decisions: Page 6 of 12 on : Thu May 06 21:33:02 IST 2021 R CR.MA 1425 2021 JUDGMENT1. Lalita Kumari v. Government of Uttar Pradesh 2 SCC 12. State of Telangana v. Habib Abdullah Jeelani 2 SCC 779 3. Gurcharan Singh v. State of Punjab 10 SCC 200.6.Mr. Bhadrish Raju learned advocate for the defacto complainant has opposed this bail application. He submits that the allegations against the present applicant are not comparable with the allegations made against PI Laxmansinh Bodanahad entered into an agreement to sell dated 17.3.2014. The area of the land was 10218 sq. meters and it was agreed to be sold at a consideration of Rs.24 03 88 687 . The present applicant is referred to as the partner of Kishorebhai Bhurabhai Koshiyaand the applicant and Kanaiyalal Narolahad paid a sum of Rs.18 00 00 000 in cash to the deceased and Rs.3 09 30 584 by cheques drawn on different Page 7 of 12 on : Thu May 06 21:33:02 IST 2021 R CR.MA 1425 2021 JUDGMENTbanks.9.There was an income tax inquiry on the premises of Kishorebhai Bhurabhai Koshiyaon 17.8.2016. There was in income tax inquiry in respect of agreement to sell between the deceased and Kishorebhai Bhurabhai Koshiyaat the place of the deceased. Upon the information provided by the deceased to the income tax officials in respect of the agreement to sell between him and Kishorebhai Bhurabhai Koshiyaa total income tax liability of Rs.13 00 00 000 was fastened on the deceased. The deceased had approached Kishorebhai Bhurabhai Koshiyain connection with the said income tax liability and he was assured by Kishorebhai Bhurabhai Koshiyathat he would make good the liability.10.As per the allegations in the FIR Kishorebhai Bhurabhai Koshiyadid not honour his promise of making good the income tax liability of Rs.13 00 00 000 fastened on the deceased which ensued the subsequent events between the deceased and the accused persons. There was police complaint in respect of the agreement to sell entered into between the deceased and the Kishorebhai Bhurabhai Koshiyaon regular bail. Detailed reasons are assigned in that order. It is pertinent to note that the name of the said accused No.1 is mentioned in the suicide note whereas the names of the present applicants do not find place in the suicide note. In my considered view the role played by the present applicants and accused No.1 is similar and therefore the present applicants deserve to be enlarged on bail on the principle of parity. 17.I do not deem it expedient to burden this judgment with the discussion of the authorities relied upon by Mr. Panchal learned advocate for the applicant and Mr. Bhadrish Raju learned advocate for the defacto complainant as the ratio expounded in these authorities is well known.18.In view of the above having perused the FIR and connected material and having taken into consideration the facts of the case nature of allegations and the evidence against the applicant without discussing evidence in detail at this stage I am of the view that the present one is a fit case to exercise discretion vested in this court under section 439 of the Code in favour of the applicants. I have also considered the following aspects:(i)The role attributed to the accused each with one local surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that they shall surrender his passport if any to the lower court within a week Z.G. SHAIKHPage 12 of 12 

Summary: It also prima facie appears from the FIR and connected material that neither any meeting took place between the deceased and the applicant and other accused persons nor the deceased was summoned by the police after 30.6.2020 till the deceased committed suicide. It thus prima facie appears that there was no proximate cause for the deceased to commit suicide after 38 days of the last meeting on 30.7.2020. This was said in the case of Kiransinh Babarsinh Parmar Versus State Of Gujarat [R/CRIMINAL MISC.APPLICATION NO. 1425 of 2021] by Mr. Justice A.G.Uraizee in the High Court of Gujarat The facts of the case are that the applications under section 439 of the Code of Criminal Procedure, 1973 are preferred by the applicants for being enlarged on bail in connection with an FIR for the offence punishable under sections 306, 506(2), 386, 270, 271, 201, 120(B) and 114 of the Indian Penal Code. The leaned counsel for the applicants submitted that the applicants are not named in the suicide note. It is his further submission that there is no allegation against the applicant regarding monetary gain or personal animosity with the deceased. He submits that section 386 of IPC states in respect of offence of extortion of putting a person in fear of death or grievance is not prima facie made out against the applicants. He submits that the deceased committed suicide on account of circumstances created by himself. The learned counsel for de facto complainant submitted that applicants are police personnel and they had given threats to the deceased on 30.7.2020 in the farmhouse. Therefore, the applicants cannot claim parity with the accused 1 who has been released on bail. He submits that the applicants are involved in a serious offence. Hence, considering the gravity of offence, they may not be enlarged on bail. The Court opined that “It is trite that abetment is a mental process of instigating a person or intentionally aiding a person in doing of a thing. There has to be prima facie evidence to indicate that the accused person had intentionally with full knowledge of consequence of his act aided or induced a person to do or not to do a particular thing Hence, without a positive act on the part of the accused to instigate or aid in committing suicide, the necessary requirement of section 107 cannot be said to have been fulfilled. As a consequence, a person cannot be held responsible for offence under section 306 of IPC”.