Gujarat High Court

Nareshbhai Keshavlal Choksi & 2 vs State Of Gujarat & on 26 March, 2015

Author:
V.M.Sahai

Bench:
Vijay Manohar Sahai

R/CR.MA/17169/2013 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION NO.17169 of 2013
WITH
CRIMINAL MISC.APPLICATION NO. 20387 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE THE ACTING CHIEF JUSTICE
MR. VIJAY MANOHAR SAHAI Sd/-

=========================================

1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?

2. To be referred to the Reporter or not ? NO

3. Whether their Lordships wish to see the fair NO
copy of the judgment ?

4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?

=========================================
NARESHBHAI KESHAVLAL CHOKSI & 2....Applicants
Versus
STATE OF GUJARAT & 1....Respondents
=========================================
Appearance :

S.I.Nanavati, learned Senior Counsel assisted by Mr. Saurabh Mehta for the
applicants in Criminal Misc. Application No.17169 of 2013.
Mr. Umesh Trivedi, Advocate with Mr. Rohit Verma, Advocate for the applicant
in Criminal Misc. Application No.20387 of 2014.
Ms.Jirga Jhaveri, learned Additional Public Prosecutor appearing for the
respondent No.1
=========================================

CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
MR. VIJAY MANOHAR SAHAI

Date :26/03/2015

COMMON CAV JUDGMENT

(PER : HONOURABLE THE ACTING CHIEF JUSTICE
MR. VIJAY MANOHAR SAHAI)

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1. Before adverting to the factual background of the

captioned Criminal Misc. Applications, it is pertinent to mention

here that the Criminal Misc. Application No.17169 of 2013 came up

for hearing on 3.12.2014 and upon hearing both the rival parties,

the said matter was reserved for judgment. However, upon finding

something amiss, the said matter was released from CAV and was

heard along with Criminal Misc. Application No.20387 of 2014 on

12.12.2014 and 19.12.2014 since both are cognate matters arising

from the Sessions Case No.22 of 2003 filed before the Court of

learned Sessions Judge, City Civil & Sessions Court, Ahmedabad.

Upon finally hearing learned counsel for the respective parties on

19.12.2014, the captioned Criminal Misc. Applications was

reserved for judgment. As common and identical question of law

and facts are involved, both the captioned Criminal Misc.

Applications are decided and disposed of by this common

judgment.

2. By these applications, the applicants - original accused

Nos.1, 2, 3 and 4 seek to invoke the inherent powers of this Court

under
Section 482
of the Code of Criminal Procedure, 1973 for

quashing of the F.I.R registered vide C. R. No.I-261/2001 at

Navrangpura Police Station, Ahmedabad for the offences

punishable under
Sections 306
and
of the Indian Penal Code

and the charge-sheet bearing No.129/2002 dated 24.6.2002.

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3. The case of the prosecution is that deceased

Devangbhai Vimalbhai Shah and Respondent No.2 were husband

and wife and they were working with one B.V.C. Travel Agency Pvt.

Ltd., Ahmedabad as Manager and Accountant, respectively. The

main business of the firm is to take possession of the consignment

in the form of gold, silver, etc. cleared from the airport and to

deliver the same to the consignee safely. This firm possesses a

strong room at Deora House running in the name of Deora Vault.

One of the keys of this strong room used to remain with the

deceased and the custodian keys used to remain with the owner of

Deora Vault. As per the F.I.R, on 19.5.2001, the Respondent No.2

inquired with the deceased as to why he looks perturbed, to which,

the deceased informed that the accused herein who is serving as

Manager of State Bank of India. Overseas Branch, Gold Desk

Officer and partners of one firm by the name K.L.Chokshi &

Company have put the deceased in lot of difficulty and if he is not

able to get out, he would be incurred huge debt. On 6.5.2001, at

10 a.m., the Respondent No.2 received a call from an employee of

the office informing that the deceased has consumed some

poisonous substance and he is admitted in emergency ward of

V.S.Hospital and later, he was shifted to a hospital in Shahibaug.

4. On 9.5.2001, when the deceased regained

consciousness, he told Respondent No.2 that a cargo consisting of

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1000 TT Gold Bars was cleared from Ahmedabad Airport on

2.3.2001 and upon oral telephonic instructions of the accused, the

deceased instructed the employees of the firm to deliver the

consignment to Guru Exports, a sister concern of K.L.Chokshi &

Company. The allegations are that the consignment belongs to the

Bank and by misleading the deceased, entire consignment of gold

was usurped by the accused in collusion with the co-accused. It is

further alleged that 1000 TT Gold Bars which were of Standard

Chartered Bank were deposited in the strong room of the State

Bank of India by the deceased on account of pressure and threats

by the accused and when the deceased requested the accused to

save him from the imbroglio, he was told that he will not get the

gold and silver and if he wants to consume poison, he may do so. As

he felt that he has no other option, he consumed poison. On

9.5.2001, the Executive Magistrate, Metropolitan Area, Ahmedabad

recorded dying declaration of the deceased wherein the deceased

told that the accused herein have caused and created tension

which led him to commit suicide. On the same day and on the next

day, i.e. 10.5.2001, statement of the deceased was recorded by the

Investigating Officer wherein the deceased reiterated the same

allegations and on 17.5.2001, the deceased sustained massive

cardiac attack and passed away. However, on 8.5.2001, one F.I.R.

came to be lodged against the deceased by one Mr. Percy Madan,

an employee of the firm for the offences punishable under
Section
and
of the Indian Penal Code alleging that the deceased

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has misappropriated the property worth Rs.4,68,12,000/-. Thus, the

main crux of the charge is that the accused abetted the commission

of suicide by putting the deceased in great difficulty.

5. Per contra, the applicants in Criminal Misc. Application

No.17169 of 2013 have averred that they have never received 1000

TT Gold Bars as alleged in the complaint on 2.3.2001. On plain

reading of the F.I.R, it is revealed that no allegations have been

made against the applicants that on their request, the deceased

had delivered the consignment to the applicants. On the contrary,

it is alleged in the F.I.R that upon telephonic instructions by one

Mr.Mohit Srivastava, Officer of the bank and original accused no.1,

the deceased had delivered the consignment at the place of the

applicants. The applicants further averred that, on 16.3.2001, all

applicants were declared as defaulters of the bank. On 24.3.2001,

C.B.I raided the office and residential premises of the applicants

and accused no.3 was arrested on 26.3.2001 and accused no.2 & 4

were arrested on 8/9.4.2001 and they were sent to judicial custody

and thereafter released on bail in the month of June and July 2001

respectively. When the deceased consumed poison on 6.5.2001, the

applicants were in judicial custody much prior to 6.5.2001. Vide

additional affidavit, the applicants have placed a copy of post

mortem report of the deceased and averred that the doctor has

opined the probable cause of death as "Cardio Respiratory Failure"

and as per FSL report; no poisonous content is found in the body of

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the deceased. Therefore, it cannot be said that the applicants are

involved in the offences.

6. As regards delay in filing the present quashing

application, the applicants have averred that the accused no.1,

Mr. Mohit Srivastava had filed Criminal Revision Application

No.435/2004 before this Court which was decided on 23.8.2012.

The applicants were under the impressions that if the accused no.1

is discharged then the Court will consider their case as no specific

role has been attributed to them. However, after the order of this

Court on 23.8.2012, the present applicants have preferred this

quashing application and therefore the delay caused may not be

construed otherwise.

7. Further, the applicant in Criminal Misc. Application

No.20387 of 2014 has averred that earlier the applicant had

preferred an application before the Court of learned Additional

Sessions Judge, City Civil & Sessions Court, Ahmedabad, seeking

discharge under
section 227
of the Code of Criminal Procedure,

1973, which was rejected and thereafter he had preferred Criminal

Revision Application No.435 of 2004 before this Court which came

to be rejected by an order dated 23.8.2012. Against the said order,

the applicant preferred Special Leave Petition (Criminal)

No.8/2013 before the Hon'ble Apex Court, which too came to be

rejected on 1.2.2013.

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7.1 The applicant has further averred that from the records

it is crystal clear that the death of the deceased was due to cardio-

respiratory failure due to pathological changes and therefore it is

not the outcome of consumption of any poisonous substance and

even no traces of poisonous substance was found in the viscera

which was collected and sent to FSL for examination, which is

suggestive of case of natural death. While deciding the discharge

application, neither the Trial Court nor this Court has delve into the

very pertinent aspect as to whether the death of the deceased was

suicidal. Looking to the post-mortem report and FSL report, it is

crystal clear that the death of the deceased was not a case of

suicide as alleged and therefore there is no question of prosecuting

the applicant for abetment.

7.2. The applicant - the accused No.1 has further averred

that the entire story put forth by the deceased is concocted and

unbelievable as once the goods cleared from the airport, the BVC

Travels Agency has to pick them and bring them to the strong room

of the State Bank of India or as per the instructions in writing

signed by two Senior Managers (two level above the applicant). The

applicant herein has no authority to sign the delivery order as per

the rules of the Bank. It is case of the prosecution that the goods

were delivered and acknowledged by Guru Exports, however, no

such receipt is brought on record. In fact, the statement of the

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deceased reveals that he created problems for himself. In case, in

everything is taken as true then the act of the deceased

transferring Standard Chartered Bank's consignment of gold to the

vault of State Bank of India itself would be an offence and an

illegality committed by the deceased. Except a bald assertion that

the applicants threatened the deceased to act accordingly, there is

no iota of evidence to even remotely suggest that all these transfers

of consignment were at the instance of the applicants. Even if that

being true, he could have immediately informed about this fact to

the police or to his head office. The deceased kept quite absolutely

and when things were out of control for him and when pressure

was exerted by his head office to account for the gold consignment

he came under the bout of depression and tension, Even in the

departmental proceedings, the applicant is exonerated and has

been granted due promotion and is now working as Chief Manager,

State Bank of India, Kalol Branch. In view of the above

circumstances, it is evident that prosecution of the applicants for

the offence
u/s.306
of Indian Penal Code is wholly misconceived

and continuation of such prosecution will lead to serious

miscarriage of justice and abuse of the process of law.

8. Heard Mr. S. I. Nanavati, learned Senior Counsel

assisted by Mr. Saurabh Mehta for the applicants in Criminal Misc.

Application No.17169 of 2013 and Mr. Umesh Trivedi, Advocate

with Mr. Rohit Verma, Advocate for the applicant in Criminal Misc.

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Application No.20387 of 2014 and Ms. Jirga Jhaveri, learned

Additional Public Prosecutor appearing for the respondent No.1 in

both the applications. Though served, no appearance has been

made on behalf of respondent No.2.

9. Mr.Nanavati, learned Senior Counsel argued that

Sections 108
to
of the Indian Penal Code deal with abetment.

The liability of an abettor of a crime is co-extensive with the

liability of the principal offender. Suicide contemplates a situation

where the person committing suicide is not available to present his

case. Therefore, for such an offence, abettor has been made

punishable under
Section 306
of the Indian Penal Code. However,

in order to prove the offence under
Section 306
of the Indian Penal

Code, it must be first proved that the accused has intentionally

instigated or driven the deceased to commit suicide or has engaged

anybody in any conspiracy to achieve the desired result. Abetment

would imply an intentional abetment. Presence of mens rea is

necessary concomitant of investigation. In the present case, it is

extremely doubtful if all the circumstances taken cumulatively

could indicate any mens rea on the part of the applicants. Even the

dying declaration and statement before the Investigating Officer

could not involve the applicants in offence punishable under

Section 306
of the Indian Penal Code as it provides for abetment of

suicide. Except one word "harassment", nothing is alleged or

explained by the deceased. There is no evidence to suggest that the

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applicants knew or had reason to believe that deceased would

contemplate or commit suicide.
In support of his contention,

Mr.Nanavati has placed reliance on the decision of the Hon'ble

Apex Court in Sanju alias
Sanjay Singh Sengar v. State of

M.P.
, reported in AIR 2002 SC 1998, wherein the Hon'ble Apex

Court has observed in para 13 and 15 as under:-

"13. Reverting to the facts of the case, both
the courts below have erroneously accepted
the prosecution story that the suicide by the
deceased is the direct result of the quarrel
that had taken place on 25th July, 1998
wherein it is alleged that the appellant had
used abusive language and had reportedly told
the deceased 'to go and die'. For this, the
courts relied on a statement of Shashi
Bhushan, brother of the deceased, made under

Section 161
Cr.P.C. when reportedly the
deceased, after coming back from the house of
the appellant, told him that the appellant had
humiliated him and abused him with filthy
words. The statement of Shashi Bhushan,
recorded under
Section 161
Cr.P.C. is annexed
as annexure P-3 to this appeal and going
through the statement, we find that he has not
stated that the deceased had told him that the
appellant had asked him 'to go and die'. Even
if we accept the prosecution story that the
appellant did tell the deceased 'to go and die',
that itself does not constitute the ingredient of
'instigation'. The word 'instigate' denotes

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incitement or urging to do some drastic or
unadvisable action or to stimulate or incite.

Presence of mens rea, therefore, is the
necessary concomitant of instigation. It is
common knowledge that the words uttered in
a quarrel or in a spur of the moment cannot be
taken to be uttered with mens rea. It is in a fit
of anger and emotional. Secondly, the alleged
abusive words, said to have been told to the
deceased were on 25th July, 1998 ensued by
quarrel. The deceased was found hanging on
27th July, 1998. Assuming that the deceased
had taken the abusive language seriously, he
had enough time in between to think over and
reflect and, therefore, it cannot be said that
the abusive language, which had been used by
the appellant on 25th July, 1998 drived the
deceased to commit suicide. Suicide by the
deceased on 27th July, 1998 is not proximate
to the abusive language uttered by the
appellant on 25th July, 1998. The fact that the
deceased committed suicide on 27th July, 1998
would itself clearly pointed out that it is not
the direct result of the quarrel taken place on
25th July, 1998 when it is alleged that the
appellant had used the abusive language and
also told the deceased to go and die. This fact
had escaped notice of the courts below."

"15. A plain reading of the suicide note would
clearly show that the deceased was in great
stress and depressed. One plausible reason
could be that the deceased was without any

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work or avocation and at the same time
indulged in drinking as revealed from the
statement of the wife Smt. Neelam Sengar. He
was a frustrated man. Reading of the suicide
note will clearly suggest that such a note is not
a handy work of a man with sound mind and
sense. Smt. Neelam Sengar, wife of the
deceased, made a statement under
Section
Cr.P.C. before the Investigation Officer.
She stated that the deceased always indulged
in drinking wine and was not doing any work.
She also stated that on 26th July, 1998 her
husband came to them in an inebriated
condition and was abusing her and other
members of the family. The prosecution story,
if believed, shows that the quarrel between the
deceased and the appellant had taken place on
25th July, 1998 and if the deceased came back
to the house again on 26th July, 1998, it cannot
be said that the suicide by the deceased was
the direct result of the quarrel that had taken
pace on 25th July, 1998. Viewed from the
aforesaid circumstances independently, we are
clearly of the view that the ingredients of
'abetment' are totally absent in the instant
case for an offence under
Section 306
I.P.C. It
is in the statement of the wife that the
deceased always remained in a drunkened
condition. It is a common knowledge that
excessive drinking leads one to debauchery. It
clearly appeared, therefore, that the deceased
was a victim of his own conduct unconnected
with the quarrel that had ensued on 25th July,

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1998 where the appellant is stated to have
used abusive language. Taking the totality of
materials on record and facts and
circumstances of the case into consideration,
it will lead to irresistible conclusion that it is
the deceased and he alone, and none else, is
responsible for his death."

9.1 Mr. Umesh Trivei and Mr. Rohit Verma has placed

reliance on the decision of this Court in
A. K. Chaudhari and

Others v. State of Gujarat
, reported in (2005) 3 GLH 444,

wherein this Court has observed in para 17 as under :-

"17. In view of the above, it appears that the
ingredients for abetment for suicide would be
satisfied only if the suicide is committed by the
deceased due to direct and alarming
encouragement/incitement by the accused
leaving no option but to commit suicide.
Further, as the action of committing suicide is
also on account of great disturbance to the
psychological imbalance of the deceased such
incitement can be divided into two broad
categories, one normally where the deceased
is having sentimental tie or physical relations
with the accused and second category would
be where the deceased is having relations with
the accused in official capacity. In case of
former category some times a normal quarrel
or the utterance of hot exchange of words may
result into psychological immediate imbalance.
Consequently creating situation of depression,

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loss of charm in the life and if the person is
unable to control sentiments of expectations, it
may give temptations to the person to commit
suicide, e.g., when there is relation of husband
and wife, mother and son, brother and sister,
sister and sister and other relations of such
type, where sentimental tie is by blood or due
to physical relations. In case of second
category the tie is on account of official
relations, where the expectations would to
discharge the obligation as provided for such
duty in law and to receive the considerations
as provided in law. In normal circumstances,
relationships by sentimental tie cannot be
equated with the official relationship and the
reason being the different conduct of the
parties for maintenance of the relations. The
former category leaves more expectations,
whereas in the latter category, by and large,
expectations and obligations are prescribed by
law, rules and regulations. Of course, for
meeting with the requirement for ingredients
of abetment to suicide, the provisions of the

IPC
are the same, but for the purpose of
examination on the aspects of abetment to
commit suicide or incitement/encouragement
to suicide, it may have some relevance. Since,
in the present case this Court is not concerned
with the matter of matter of abetment to
suicide where the deceased or the accused
had the relations covered in the first category,
no further discussion may be required in this
regard to that extent. However, in case where

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the allegations for abetment of suicide
committed by the deceased falling in second
category are concerned, the strict
interpretation is called for, otherwise it may
result into damaging the discipline of any
institution or organization or department,
which may consequently result into creating a
situation against national interest for which
the expectation would be the strict discipline
and the rule of law only and nothing else."

Mr. Verma has also submitted that the case of the

applicant is also covered by the decision of the Hon'ble Apex Court

in the case of
Netai Dutta v. State of W.B
, reported in (2005) 2

SCC 659 and in view of the ratio
laid down by
the Hon'ble Apex

Court in the aforesaid case, the F.I.R and charge-sheet is required

to be quashed and set aside.

10. In counter, Ms. Jirga Jhaveri, Additional Public

Prosecutor strongly opposed the quashing applications and

vehemently argued that the present applicants are the primary

abettors who have driven the deceased to commit suicide. Even the

dying declaration and the statement of the deceased before the

Investigating Officer indict the present applicants as the abettors in

the crime. Therefore, the quashing applications are liable to be

rejected at its threshold. She further submitted that specific role

has been attributed against all the applicants, therefore, the Court

may not exercise jurisdiction under
Section 482
of the Code of

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Criminal Procedure, 1973, as the charge is framed against the

applicants. Ms. Jhaveri has placed reliance on the decision of the

Hon'ble Apex Court in Praveen Pradhan v. State of Uttaranchal

and another, reported in (2012) 9 SCC 734, wherein the

Hon'ble Apex Court has observed in para 18 and 19 as under:-

"18. In fact, from the above discussion it is
apparent that instigation has to be gathered
from the circumstances of a particular case.
No straight-jacket formula can be laid down to
find out as to whether in a particular case
there has been instigation which force the
person to commit suicide. In a particular case,
there may not be direct evidence in regard to
instigation which may have direct nexus to
suicide. Therefore, in such a case, an
inference has to be drawn from the
circumstances and it is to be determined
whether circumstances had been such which
in fact had created the situation that a person
felt totally frustrated and committed suicide.
More so, while dealing with an application for
quashing of the proceedings, a court cannot
form a firm opinion, rather a tentative view
that would evoke the presumption referred to
under
Section 228
Cr.P.C."

"19. Thus, the case is required to be
considered in the light of aforesaid settled
legal propositions. In the instant case, alleged
harassment had not been a casual feature,

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rather remained a matter of persistent
harassment. It is not a case of a driver; or a
man having an illicit relationship with a
married woman, knowing that she also had
another paramour; and therefore, cannot be
compared to the situation of the deceased in
the instant case, who was a qualified graduate
engineer and still suffered persistent
harassment and humiliation and additionally,
also had to endure continuous illegal demands
made by the appellant, upon non-fulfillment of
which, he would be mercilessly harassed by
the appellant for a prolonged period of time.
He had also been forced to work continuously
for a long durations in the factory, vis-a-vis
other employees which often even entered to
16-17 hours at a stretch. Such harassment,
coupled with the utterance of words to the
effect, that, "had there been any other person
in his place, he would have certainly
committed suicide" is what makes the present
case distinct from the aforementioned cases
considering the facts and circumstances of the
present case, we do not think it is a case
which requires any interference by this court
as regards the impugned judgment and order
of the High Court. The appeal is, therefore,
dismissed accordingly."

She has further placed reliance on the decision of the

Hon'ble Apex Court in
Rajinder Prasad v. Bashir and Others
,

reported in AIR 2001 SC 3524, wherein the Hon'ble Apex Court

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has observed in para 7 and 8 as under:-

"7. We are of the opinion that when the
earlier revision petition filed under
Section
of the Code had been dismissed as not
pressed, the accused-respondents could not be
allowed to invoke the inherent powers of the
High Court under
Section 482
of the Code for
the grant of the same relief. We do not agree
with the arguments of the learned counsel for
the respondents that as the earlier application
had been dismissed as not pressed, the
accused had acquired a right to challenge the
order adding the offence under
Section 395
of
the Code and arraying four persons as
accused-persons by way of subsequent petition
under
Section 482
of the Code. The object of
criminal trial is to render public justice and to
assure punishment to the criminals keeping in
view that the trial is concluded expeditiously.

Delaying tactics or protracting the
commencement or conclusion of the criminal
trial are required to be curbed effectively, lest
the interest of public justice may suffer. For
exercising power under
Section 482
of the
Code the learned Judge of the High Court
relied upon a judgment of this Court in

Krishnan & Anr. v. Krishnaveni & Ors.
[1997
(4) SCC 241]. A perusal of the aforesaid
judgment, however, shows that the reliance by
the learned Judge was misplaced.

This Court
in
Krishnan
's case (supra) had held that
though the power of the High Court under

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Section 482
of the Code is very wide, yet the
same must be exercised sparingly and
cautiously particularly in a case where the
petitioner is shown to have already invoked
the revisional jurisdiction under
Section 397
of
the Code. Only in cases where the High Court
finds that there has been failure of justice or
misuse of judicial mechanism or procedure,
sentence or order was not correct, the High
Court may, in its discretion, prevent the abuse
of the process or miscarriage of justice by
exercise of jurisdiction under
Section 482
of
the Code. It was further held, "Ordinarily,
when revision has been barred by
Section
397(3)
of the Code, a person -

accused/complainant - cannot be allowed to
take recourse to the revision to the High Court
under
Section 397(1)
or under inherent
powers of the High Court under
Section 482
of
the Code since it may amount to
circumvention of provisions of
Section 397(3)

or
Section 397(2)
of the Code.".

8. We are of the opinion that no special
circumstances were spelt out in the
subsequent application for invoking the
jurisdiction of the High Court under
Section
of the Code and the impugned order is
liable to be set aside on this ground alone"

She has also placed reliance on the decision of the

Hon'ble Apex Court in
Amit Kapoor v. Ramesh Chander and

another
, reported in (2012) 9 SCC 460, wherein the Hon'ble

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Apex Court has observed in para 20 and 27 as under :-

"20. The jurisdiction of the Court under

Section 397
can be exercised so as to examine
the correctness, legality or proprietary of an
order passed by the trial court or the inferior
court, as the case may be. Though the section
does not specifically use the expression
'prevent abuse of process of any court or
otherwise to secure the ends of justice', the
jurisdiction under
Section 397
is a very
limited one. The legality, proprietary or
correctness of an order passed by a court is
the very foundation of exercise of jurisdiction
under
Section 397
but ultimately it also
requires justice to be done. The jurisdiction
could be exercised where there is palpable
error, non-compliance with the provisions of
law, the decision is completely erroneous or
where the judicial discretion is exercised
arbitrarily. On the other hand,
Section 482
is
based upon the maxim quando lex liquid
alicuiconcedit, conceder videtur id quo res
ipsa esse non protest, i.e., when the law gives
anything to anyone, it also gives all those
things without which the thing itself would be
unavoidable. The Section confers very wide
power on the Court to do justice and to
ensure that the process of the Court is not
permitted to be abused."

"27. Having discussed the scope of
jurisdiction under these two provisions, i.e.,

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Section 397
and
Section 482
of the Code and
the fine line of jurisdictional distinction, now
it will be appropriate for us to enlist the
principles with reference to which the courts
should exercise such jurisdiction. However, it
is not only difficult but is inherently
impossible to state with precision such
principles. At best and upon objective analysis
of various judgments of this Court, we are
able to cull out some of the principles to be
considered for proper exercise of jurisdiction,
particularly, with regard to quashing of
charge either in exercise of jurisdiction under

Section 397
or
Section 482
of the Code or
together, as the case may be :

27.1) Though there are no limits of the
powers of the Court under
Section 482
of the
Code but the more the power, the more due
care and caution is to be exercised in invoking
these powers. The power of quashing criminal
proceedings, particularly, the charge framed
in terms of
Section 228
of the Code should be
exercised very sparingly and with
circumspection and that too in the rarest of
rare cases.

27.2) The Court should apply the test as to
whether the uncontroverted allegations as
made from the record of the case and the
documents submitted therewith prima facie
establish the offence or not. If the allegations
are so patently absurd and inherently
improbable that no prudent person can ever

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reach such a conclusion and where the basic
ingredients of a criminal offence are not
satisfied then the Court may interfere.

27.3) The High Court should not unduly
interfere. No meticulous examination of the
evidence is needed for considering whether
the case would end in conviction or not at the
stage of framing of charge or quashing of
charge.

27.4) Where the exercise of such power is
absolutely essential to prevent patent
miscarriage of justice and for correcting some
grave error that might be committed by the
subordinate courts even in such cases, the
High Court should be loathe to interfere, at
the threshold, to throttle the prosecution in
exercise of its inherent powers.

27.5) Where there is an express legal bar
enacted in any of the provisions of the Code
or any specific law in force to the very
initiation or institution and continuance of
such criminal proceedings, such a bar is
intended to provide specific protection to an
accused.

27.6) The Court has a duty to balance the
freedom of a person and the right of the
complainant or prosecution to investigate and
prosecute the offender.

27.7) The process of the Court cannot be
permitted to be used for an oblique or

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ultimate/ulterior purpose.

27.8) Where the allegations made and as they
appeared from the record and documents
annexed therewith to predominantly give rise
and constitute a 'civil wrong' with no 'element
of criminality' and does not satisfy the basic
ingredients of a criminal offence, the Court
may be justified in quashing the charge. Even
in such cases, the Court would not embark
upon the critical analysis of the evidence.

27.9) Another very significant caution that the
courts have to observe is that it cannot
examine the facts, evidence and materials on
record to determine whether there is
sufficient material on the basis of which the
case would end in a conviction, the Court is
concerned primarily with the allegations
taken as a whole whether they will constitute
an offence and, if so, is it an abuse of the
process of court leading to injustice.

27.10) It is neither necessary nor is the court
called upon to hold a full-fledged inquiry or to
appreciate evidence collected by the
investigating agencies to find out whether it is
a case of acquittal or conviction.

27.11) Where allegations give rise to a civil
claim and also amount to an offence, merely
because a civil claim is maintainable, does not
mean that a criminal complaint cannot be
maintained.

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27.12) In exercise of its jurisdiction under

Section 228
and/or under
Section 482
, the
Court cannot take into consideration external
materials given by an accused for reaching
the conclusion that no offence was disclosed
or that there was possibility of his acquittal.

The Court has to consider the record and
documents annexed with by the prosecution.

27.13) Quashing of a charge is an exception to
the rule of continuous prosecution. Where the
offence is even broadly satisfied, the Court
should be more inclined to permit
continuation of prosecution rather than its
quashing at that initial stage. The Court is not
expected to marshal the records with a view
to decide admissibility and reliability of the
documents or records but is an opinion
formed prima facie.

27.14) Where the charge-sheet, report under

Section 173(2)
of the Code, suffers from
fundamental legal defects, the Court may be
well within its jurisdiction to frame a charge.

27.15) Coupled with any or all of the above,
where the Court finds that it would amount to
abuse of process of the Code or that interest
of justice favours, otherwise it may quash the
charge. The power is to be exercised ex
debito justitiae, i.e. to do real and substantial
justice for administration of which alone, the
courts exist. {Ref.
State of West Bengal &

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Ors. v. Swapan Kumar Guha & Ors.
[AIR 1982
SC 949]; Madhavrao Jiwaji Rao Scindia & Anr.

v. Sambhajirao Chandrojirao Angre & Ors.

[AIR 1988 SC 709]; Janata Dal v. H.S.
Chowdhary & Ors. [AIR 1993 SC 892]; Mrs.
Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh
Gill & Ors. [AIR 1996 SC 309; G. Sagar Suri &
Anr. v. State of U.P. & Ors. [AIR 2000 SC
754]; Ajay Mitra v. State of M.P. [AIR 2003 SC
1069]; M/s. Pepsi Foods Ltd. & Anr. v. Special
Judicial Magistrate & Ors. [AIR 1988 SC 128];
State of U.P. v. O.P. Sharma [(1996) 7 SCC
705]; Ganesh Narayan Hegde v. s.

Bangarappa & Ors. [(1995) 4 SCC 41]; Zundu
Pharmaceutical Works Ltd. v. Mohd. Sharaful
Haque & Ors. [AIR 2005 SC 9]; M/s. Medchl
Chemicals & Pharma (P) Ltd. v. M/s.

Biological E. Ltd. & Ors. [AIR 2000 SC 1869];

Shakson Belthissor v. State of Kerala & Anr
.

[(2009) 14 SCC 466]; V.V.S. Rama Sharma &
Ors. v. State of U.P. & Ors. [(2009) 7 SCC
234]; Chunduru Siva Ram Krishna & Anr. v.

Peddi Ravindra Babu & Anr. [(2009) 11 SCC
203]; Sheo Nandan Paswan v. State of Bihar
& Ors. [AIR 1987 SC 877]; State of Bihar &
Anr. v. P.P. Sharma & Anr. [AIR 1991 SC
1260]; Lalmuni Devi (Smt.) v. State of Bihar &
Ors. [(2001) 2 SCC 17]; M. Krishnan v. Vijay
Singh & Anr. [(2001) 8 SCC 645]; Savita v.

State of Rajasthan [(2005) 12 SCC 338]; and

S.M. Datta v. State of Gujarat & Anr.
[(2001)
7 SCC 659]}.

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27.16. These are the principles which
individually and preferably cumulatively (one
or more) be taken into consideration as
precepts to exercise of extraordinary and
wide plenitude and jurisdiction under
Section
of the Code by the High Court. Where the
factual foundation for an offence has been laid
down, the courts should be reluctant and
should not hasten to quash the proceedings
even on the premise that one or two
ingredients have not been stated or do not
appear to be satisfied if there is substantial
compliance to the requirements of the
offence."

11. Heard the learned counsel for the respective parties at

length and minutely perused the records and proceedings of the

Sessions case No.22 of 2003. Upon appreciating the evidence in

chronological order, following undisputed facts emerges from the

records of this case :

11.1. It has come on record from the prosecution side that

Mr. Naresh Chokshi and Mr. Prashant Chokshi, applicants was

arrested on 10.4.2001 and released on bail on 5.7.2001 and

Mr.Jignesh Chokshi, applicant was arrested on 30.3.2001 and

released on bail on 25.6.2001 in connection with CBI Case

No.2(E)/2001 CBI BS&FC, Mumbai.

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11.2. On 2.3.2001, alleged incident of delivering 1000 TT

Gold Bars to Guru Exports took place. However, no receipt of

delivery and acknowledgment is brought on record.

11.3. On 6.5.2001, the deceased allegedly consumed some

poisonous substance and was rushed to V.S.Hospital, Ahmedabad

and thereafter shifted to private hospital in Shaibaug.

11.4. On 8.5.2001 a F.I.R. was lodged against the deceased

by B.V.C. Travel Agency Pvt. Ltd allegedly revealing that the

deceased misappropriated property of 1000 Gold Bars worth

Rs.4,68,12,000/- between 4.5.2001 and 6.5.2001.

11.5. The deceased regained consciousness on 9.5.2001

whereupon he allegedly revealed the turmoil to his wife -

Respondent No.2. On the same day, dying declaration of the

deceased was recorded and on 10.5.2001 statement of the

deceased was recorded by the Investigating Officer.

11.6. On 17.5.2001, the deceased sustained massive cardiac

attack and passed away. The post-mortem report reveals that the

death of the deceased was due to cardio-respiratory failure due to

pathological changes and the FSL report reveals no traces of

poisonous substance in viscera.

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11.7. Complaint was filed against the present applicants on

19.5.2001.

12. It is noticed that dying declaration of the deceased was

recorded by the Executive Magistrate at about 01.15 p.m. on

09.5.2001 and was completed at about 01:35 p.m. The dying

declaration is in question and answers form. After asking about 1 to

13 preliminary questions, following questions were asked and their

answers were taken down as under :-

Sr. Question Answer
No.
14. Whether you tried to Yes, I tried to commit
commit suicide? suicide.

15. Whether anybody I was mentally harassed

harassed you mentally or by Shri Mohit Srivastav,
physically? Gold Desk Officer, S.B.I.
Overseas Branch,
Navjivan Press Building,
Behind Income Tax,
Ahmedabad.

16. Do you want to say Shri Mohit Srivastav and
anything more? Naresh, Prashant &
Jignesh, owners of
K.L.Chokshi & Company
have tried to frame him.

13. Having perused the records and considering the rival

submissions made by the learned counsel for the parties and

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having regard to the nature of the allegations, and looking to the

proposition laid down by the Hon'ble Apex Court in the case of

Amit Kapoor
(supra), I am inclined to accept the submissions

canvassed on behalf of the applicants that the F.I.R and Charge-

Sheet deserves to be quashed, for the reasons that :-

13(a) The present applicants in Criminal Misc. Application

No.17169 of 2013 were in jail since 30.3.2001 and 10.4.2001 and

were released on bail on 5.7.2001 and 25.6.2001, respectively and

the alleged consumption of poison by the deceased took place on

6.5.2001. Hence, when the deceased allegedly consumed poison;

prior to that date, the present applicants were in jail, so there

appears no possibility of incitement, instigation or any act to drive

the deceased to commit suicide.

13(b) It is revealed from the matter available on record that

the complainant, i.e. Respondent No.2 and the deceased were

working together in a travel firm, which was owned by the

brother-in-law of the deceased stationed at Mumbai. It is also

revealed that an F.I.R. was lodged before the Police Station by an

employee of the travel firm against the deceased on 8.5.2001. This

factor might have prompted the deceased to commit suicide. Such

possibility cannot be ruled out as the F.I.R mentions that the

deceased misappropriated property worth Rs.4,68,12,000/-

between 4.5.2001 and 6.5.2001.

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13(c) The complaint was lodged against deceased Devang

Shah by one Shri Parsi Rusi Madan alleging that consignment

consisting of 1000 TT Gold Bars came to be disposed

of/misappropriated by the deceased in between 4.5.2011 and

6.5.2001, whereby the deceased had committed the offence of

criminal breach of trust and cheating. The aforesaid complaint

came to be lodged under the instructions from the brother of

Dakshaben Shah i.e. brother-in-law of the deceased as per the

instruction given to the complainant on 5.5.2001 and the deceased

consumed poison and substance on 6.5.2001. As per the complaint,

custody of 1000 TT Gold Bars was with the deceased and the same

was disposed of/misappropriated in between 4.5.2001 and 6.5.2001

and to the same effect, the aforesaid complaint was lodged against

the deceased himself prior to that period that means from 4.5.2001

to 6.5.2001 and even prior to that period, the petitioners were in

jail. The complaint was given on behalf of the company where he

was serving, gave specific details when the goods came to be

misappropriated/disposed of during the aforesaid period. Whereas

in the dying declaration and the complaint against the present

applicants only general and vague allegations have been made. At

the relevant time, the goods were definitely in the custody of the

deceased as per the complaint against the deceased. In that view of

the matter, there was no reason to harass or instigation by the

applicants to the deceased to commit suicide.

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13(d) On going through the complaint, it reveals that

Respondent No.2, who is the wife of the deceased was informed by

the deceased on 6.5.2001, i.e. after consumption of poison, that

there was instigation from the accused. However, at that relevant

time, the present applicants were in jail since about 25 days prior

to the incident. Hence, there appears no possibility of incitement,

instigation or any act on the part of the present applicants to drive

the deceased to commit suicide.

13(e) On overall perusal of material available on record, this

Court do not find any proximate reason to infer that the present

applicants caused any abetment and it is nobody's case that the

applicants abetted the deceased to commit suicide from the jail.

For this simple reason also, instigation of any sort from the

applicants appears to be unbelievable.

13(f) The offence of abetment by instigation depends upon

the intention of the person who abets and not upon the act which is

done by the person who has abetted. The abetment may be by

instigation, conspiracy or intentional aid as provided under
Section
of the Indian Penal Code. It is true that instigation has to be

gathered from the circumstances of a particular case. There may

not be direct evidence in regard to instigation which may have

direct nexus to suicide. Therefore, in such a case, an inference has

to be drawn from the circumstances and it is to be determined

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whether such circumstances in fact created a situation which

warranted the person to commit suicide. In the present case, there

is no iota of evidence to suggest or indicate any instigation in

whatsoever manner by the applicants. In fact, the evidence on

record suggests that the applicants in Criminal Misc. Application

No.17169 of 2013 were in judicial custody prior to the date when

the deceased committed suicide.

13(g) In the instant case, alleged harassment by the

applicants appears to be not a matter of persistent harassment. It

appears to have been mentioned in very casual manner by the

deceased as no specific role has been attributed to the applicants

by him.

13(h) The post-mortem report reveals that the death of the

deceased was due to cardio-respiratory failure occurred due to

pathological changes. Moreover, FSL report reveals no traces of

poisonous substance in viscera. Thus, the medical evidence

suggests that the death of the deceased is not caused due to

consumption of poisonous substance but the death occurred due to

cardio-respiratory failure. There is no nexus between the cause of

the death of the deceased as well as allegations of harassment.

13(i) The proximate cause appears to be communication of

lodging of complaint by the brother-in-law of the deceased, which

might have caused the deceased to consume allegedly poisonous

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substance.

13(j) From the report submitted by the process serving

agency, it appears that whereabout of the widow of the deceased is

not known and she is not traceable. She is the sole witness as the

case of the prosecution is that the deceased had told his turmoil to

his wife, which is also in the nature of hearsay evidence.

13(k) Dying declaration of deceased Devang Shah was

recorded by the Executing Magistrate on 9.5.2001 at about 1.15

p.m. in question and answer form at page 102 of the paper book,

wherein he has stated that he has attempted to commit suicide and

reason shown by him is that due to harassment made by Mohit

Srivastava and further he had also stated that Mohit Srivastava and

owner of K. L. Chokshi Firm i.e. Naresh, Prashant and Jignesh have

tried to implicate him into the matter.

On perusal of the aforesaid dying declaration and the

statement made by the deceased, no details as regards to

harassment came to be meted out by the present applicants are

revealing, only general and vague allegations are made and during

that period, the applicants were already in jail.

13(l) Allegations made in the dying declaration recorded by

the Executive Magistrate and in the statement of the deceased

before the Investigating Officer appear to be general and vague in

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nature as no role has been attributed to them and does not inspire

confidence in its truthfulness and correctness. It appears that the

dying declaration is influenced by other factors such as complaint

lodged against him by his own firm for misappropriating property

worth Rs.4,68,12,000/-. Such statement cannot be relied upon in

the facts and circumstances of the present case as it appears that

the deceased has made an attempt to cover up the truth. It is well

settled law that, if prosecution solely depends on the dying

declaration, the normal rule is that the Court must exercise due

care and caution to ensure genuineness of the dying declaration

keeping in mind that the accused have no opportunity to test the

veracity of the statement of the deceased by cross examination.

13(m) Now so far as the reliance placed upon the decision of

the Hon'ble Apex Court in the case of Praveen Pradhan (supra) is

concerned, on facts, the same would not be of any assistance to the

respondent, as in this case the alleged harassment is a casual

feature and not a matter of persistent harassment.
Similarly, the

case of
Rajinder Prasad
(supra) would not be of any assistance as

the Hon'ble Apex Court has further observed in para 7 that "only in

cases where the High Court finds that there has been failure of

justice or misuse of judicial mechanism or procedure, sentence or

order was not correct, the High Court may, in its discretion,

prevent the abuse of the process of miscarriage of justice by

exercise of jurisdiction under
Section 482
of the Code".

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13(n) On overall perusal of the material available on record,

this Court does not find any basic ingredients required to

substantiate an offence of
Section 306
of the Indian Penal Code.

The allegations leveled are inherently improbable.

13(o) This Court is conscious of the fact that
Section 482
of

the Code of Criminal Procedure, 1973, as observed by the Hon'ble

Apex Court in the case of
Amit Kapoor
(supra), is based upon the

maxim "quando lex aliquid alicui concedit, concedere videtur id

sine quo res ipsa esse non potest", i.e when the law gives anything

to anyone, it also gives all those things without which the thing

itself would be unavoidable. This Court is also conscious of the fact

that such power is to be exercised "ex debito justitiae", i.e. to do

real and substantial justice for administration of which alone, the

Court exist.

14. In above view of the matter, this Court is of the

considered opinion that this is a fit case wherein the powers under

Section 482
of the Code of Criminal Procedure, 1973 are required

to be exercised. It is true that such powers are to be exercised

sparingly.

15. For the reasons stated herein-above, these applications

succeed and are hereby allowed. The F.I.R registered vide

C.R.No.I-261/2001 at Navrangpura Police Station, Ahmedabad for

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the offences punishable under
Sections 306
and
of the Indian

Penal Code and the charge-sheet bearing No.129/2002 dated

24.6.2002 are hereby quashed and set aside. Resultantly, the

proceedings of the Sessions Case No.22 of 2003 pending before the

Court of learned Sessions Judge, City Civil & Sessions Court,

Ahmedabad is also set aside. However, no order as to costs.

Registry is directed to send the Records and

Proceedings of Sessions Case No..22 of 2003 to the Court of

learned Sessions Judge, City Civil & Sessions Court, Ahmedabad

within a period of one week from today.

(V.M.SAHAI, ACJ.)

Ashish Tripathi / Savariya

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