Gujarat High Court

Pravinbhai Jivrambhai Deria vs State Of Gujarat on 23 May, 2023

Author:
Ilesh J. Vora

Bench:
Ilesh J. Vora

R/CR.MA/11161/2016 JUDGMENT DATED: 23/05/2023

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION NO. 11161 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-

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

1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?

2 To be referred to the Reporter or not ? Yes

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

4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?

==========================================================
PRAVINBHAI JIVRAMBHAI DERIA & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR MC BAROT(144) for the Applicant(s) No. 1,2
MR TEJAS M BAROT(2964) for the Applicant(s) No. 1,2
MR KP CHAMPANERI(5643) for the Respondent(s) No. 2
MS VRUNDA SHAH, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

Date : 23/05/2023

ORAL JUDGMENT

1. By this application under
Section 482
of Cr.P.C., the
applicants - original accused Nos. 9 and 8 seek to
invoke inherent powers of this Court, praying for

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quashment of First Information Report (FIR) being I-
C.R.No. 25/2016 registered with Gadh Police
Station, Dist: Banaskantha, for the offences
punishable under
Sections 306
, 506 (2),
,
,
,
read with
Section 34
of the Indian Penal Code and

Sections 40
and
of the Gujarat Money Lenders Act,
2011.

2. Facts and circumstances giving rise to this application
are that, the second respondent - Mahendra Panchal,
resident of Mumbai is brother of deceased
Hasmukhbhai, who ended his life by committing
suicide at his village Gadalvada, Dist. Banaskantha.
The deceased was driving a rickshaw for his livelihood.
The deceased had borrowed Rs.6 lacs from accused
Nos.1 to 10 and was paying unbearable amount of
interest. It is the case of the prosecution that the
deceased could not repay the principal amount as well
as the interest, as a result, he was under tremendous
pressure and distress. Before he could commit suicide,
he wrote a letter addressed to PSI, Gadh Police Station,
mentioning therein the harassment meted out to him
by the accused, on the issue of borrowed money. In the
letter, he mentioned names of 10 persons including the
applicants, alleging therein that after borrowing the
money from them, he could not repay the same and
upon his request to give some time to repay the
amount, they have not extended the time and

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threatened him to take away his rickshaw and did not
allow him to do his business. He had further mentioned
in the letter that he is going to end his life by
committing suicide and all the persons mentioned in
the letter are responsible for my suicide. In this
circumstance, on 19.04.2016, the deceased
Hasmukhbhai had consumed poisonous substance and
committed suicide. Before he could die, he was taken to
Palanpur Civil Hospital where his statement in form of
dying declaration was recorded by the Executive
Magistrate, Palanpur, wherein, he disclosed the facts of
borrowed money allegedly taken from persons named in
the statement. The names of the present applicants
having not been disclosed as the deceased while
recording the statement did not recollect their names.
The investigating officer had also recorded the
statement of the deceased on the same day under

Section 161
of the Cr.P.C., wherein, the reasons for his
suicide having been disclosed before the police and
subsequently, he died at Civil Hospital. The brother of
the deceased Mr. Mahendra Panchal went to hospital
and he was appraised by the relatives about the
financial distress of the deceased and factum of suicide
note and dying declaration. The second respondent
based on the input gathered by him at the hospital,
lodged an FIR against 10 persons, including the
applicants herein for the offences as referred above.
After completion of investigation of the case, the IO filed

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a chargesheet against the accused for the aforesaid
offences, which has been culminated into Sessions
Case No.78/2022, which is pending before the
jurisdictional sessions Court at Banaskantha.

3. The applicants arraigned as accused Nos. 8 and 9 in
the chargesheet. They have preferred present quashing
petition mainly on the ground that the charge against
them under
Section 306
of Indian Penal Code is not
sustainable. Therefore, continuation of the proceedings
against them is nothing, but a sheer abuse of process
of law and Court.

4. Mr. Tejas Barot, learned counsel appearing for the
applicants on instructions does not press this petition
qua the offences punishable under
Sections 506 (2)
,
,
,
,
of Indian Penal Code and
Sections
and
of the Gujarat Money Lenders Act and
confined to this petition so far offence under Section
306 read with
Section 34
of Indian Penal Code is
concerned. The petition stands dismissed qua the
aforesaid offences except Section 306 read with
Section
of Indian Penal Code.

5. This Court has heard Mr. Tejas Barot, learned counsel
for the applicants, Mr. K.P.Champaneri, learned
counsel for the original informant and Ms. Vrunda
Shah, learned Additional Public Prosecutor for the
respondent State.

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6. Mr. Tejas Barot, the counsel appearing for the
applicants submitted that the FIR lacks the ingredients
of the offences alleged, more particularly
section 306
of
Indian Penal Code; that, the facts and circumstances of
the case do not, in any way, indicate that the alleged
act would constitute abetment to commit suicide; that
there is complete absence of any sort of instigation or
any positive move on the part of the applicants, causing
the deceased to commit suicide; that the ingredients of
abetment as laid down in
Section 107
of Indian Penal
Code is completely absent in this case and as such,

section 306
of Indian Penal Code is not at all attracted;
that a bare reading of the suicide note and facts
disclosed in dying declaration does not itself amount to
instigation and also does not reflect mens rea on the
part of the applicants which is necessary concomitant
of investigation (Sanju @ Sanjay Singh Sengar Vs. State
of M.P., AIR 1998 SC 2002); that there was no material
to suggest that there was intention on the part of the
applicants to provoke incite or encourage the deceased
in committing the suicide and therefore, in absence of
any material with respect of the charge of abetment of
suicide, merely allegations of harassment disclosed in
the suicide note and dying declaration are not sufficient
to draw inference that the accused have abetted in the
commission of suicide.

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7.
In support of the aforesaid contentions, reliance has
been placed on the judgment of the Apex Court in

M.Arjun Vs. State
represented by its Inspector of Police
(2019) 3 SCC 315, to contend that having advanced
money to the deceased by applicant accused might
have occurred dispute with regard to repayment of
money, but that by itself is not sufficient to constitute
offence under
Sec. 306
of Indian Penal Code as there
should be evidence capable of suggesting that the
accused intended by such acts to instigate deceased to
commit suicide.

8. In the aforesaid contentions submitted by learned
counsel for the applicant Mr. Barot, he thus urged that
the FIR so far as charge under Section 306 is
concerned having been filed with ulterior motive and to
harass the applicants and when prima facie no case is
made out against the accused for the alleged offence,
then the continuation of trial proceedings would
unnecessarily harassment to the applicants which
amount to abuse of process of law and Court and
therefore, he prayed that the case is made out to
exercise inherent powers to quash the FIR and
consequential proceedings therefrom.

9. On the other hand, countering to the contentions
raised by the applicant, learned counsel Mr.

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K.P.Chanpaneri and State counsel Ms. Vrunda Shah
submitted that, after registration of FIR, the IO
recovered the material evidence like suicide note, dying
declaration of the deceased and considering the
sufficient evidence for the commission of alleged
offence, the I.O filed a chargesheet for the offences as

referred above
. Thus, at this stage it cannot be said
that no prima facie case is made out against the
applicant; that the criminal proceedings cannot be
quashed where the allegations made in the FIR and
chargesheet disclosed the commission of offence; that
the High Court in exercise of jurisdiction under Section
482 is required to be examined whether the averments
made in the FIR and chargesheet case papers
constitute the ingredients necessary for an offence
alleged under
Section 306
of Indian Penal Code; that in
the present case, the allegations as they stand make
out an offence within the meaning of
Section 306
of
Indian Penal Code; that the deceased was under

tremendous stress of the pressure of the accused and it
was to the extent that they tried to take away his
rickshaw and restrained to do his livelihood work that
is what mentioned in the suicide note by the deceased;
that this is not a stage where the minutes and
meticulous exercise with regard to appreciation of
evidence may be done. Thus, therefore, it was urged
that at this stage the High Court is not justified in
embarking upon an inquiry as to the probability,

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reliability or genuineness of the allegations made
therein and same is required to be considered at the
stage of trial.

10.
In support of the aforesaid contentions, reliance has
been placed by Mr. Champaneri on the judgment of the
Apex Court rendered in
Pravin Pradhan Vs. State of
Uttaranchal
[(2012) 9 SCC 734], to contend that an
accused by continuing course of these conduct creates
such circumstances that the deceased was left with no
other option, but to commit suicide which would satisfy
the ingredients of instigation to commit suicide.

11. In the aforesaid contentions, learned counsel for the
complainant Mr. Champaneri and State Counsel Ms.
Shah submitted that the inherent powers vest with the
High Court do not confer jurisdiction to act according
to whim and caprice and the same is exercised
sparingly with circumspection and in the rarest of rare
cases. Thus, therefore, it was submitted that no
exceptional case is made out to exercise inherent
powers of this Court to quash the criminal proceedings
and the application is liable to be dismissed.

12. The applicants herein have been charged for the act of
abetment of suicide and other provisions as referred in
para 1 of this judgment. It is the case of the
prosecution that, deceased had borrowed money for
personal use from different persons as referred in the

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suicide note and statement of the deceased in form of
dying declaration. The complainant who happens to be
a brother of the deceased having no any personal
knowledge with respect to alleged financial
transactions. He has lodged the FIR based on the
factum of suicide note and dying declaration. In such
circumstances, the issue falls for determination of this
Court is whether the FIR and consequential
proceedings are liable to be quashed in exercise of
extraordinary and inherent jurisdiction.

13. It is settled law that the High Courts are clothed with
inherent powers to make such orders as may be
necessary for the ends of justice. Such power though
unrestricted and undefined should not be capriciously
or arbitrarily exercised but should be exercised in
appropriate cases, ex debito justitiae to do real and
substantial justice for administration of which alone
the court exists as the powers possess by the High
Court under Section 482 of the Code are very wide and
very plantitude which requires great caution in exercise
and same has to be exercised sparingly with
circumspection and in the rarest of rare case.
In the
case of
V.P.Srivastava Vs. Indian Explosives Ltd
.

2010 (10) SCC 361, the Apex Court while dealing with
the issue of quashing and inherent powers of the High
Court, held that where no prima facie case is made out,
involving the applicant accused in the alleged offence,

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then the High Court is obliged in law to exercise the
jurisdiction under Section 482 of the Code.

14. Reverting back to the facts of the present case, names
of the applicants disclosed by the deceased in his
suicide note and further their names had not been
disclosed in the statement of the deceased recorded in
form of dying declaration as he could not recollect their
names. The charge against the applicants is under

Section 306
of Indian Penal Code for the offence of
abetment of suicide. To bring home the accused for the
charge under Section 306, the prosecution has to prove

(i) the deceased committed suicide (ii) the accused
instigated or abetted for committing suicide and (iii)
direct involvement by the accused in such abetment or
instigation is necessary.
Section 107
of Indian Penal
Code defines abetment as comprising (a) instigation to
commit the offence (b) engaging in conspiracy to
commit the offence and (c) aiding the commission of
offence. The scope and ambit of Section 107 and its co-
relation with
Section 306
of Indian Penal Code has
been settled by catena of decisions of the Apex Court.

In
Kishori Lal Vs. State of M.P.
, 2007 (10) SCC 797,
the two judge Bench of the Apex Court in para 6, while
defining the abetment of things held as under:-

"Section107IPC defines abetment of a thing. The
offence of abetment is a separate and distinct offence
provided in the Act as an offence. A person, abets the
doing of a thing when (1) he instigates any person to
do that thing; or (2) engages with one or more other

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persons in any conspiracy for the doing of that thing;
or (3) intentionally aids, by act or illegal omission, the
doing of that thing. These things are essential to
complete abetment as a crime. The word "instigate"

literally means to provoke, incite, urge on or bring
about by persuasion to do any thing. The abetment
may be by instigation, conspiracy or intentional aid,
as provided in the three clauses of Section

107. Section 109provides that if the act abetted is
committed in consequence of abetment and there is
no provision for the punishment of such abetment,
then the offender is to be punished with the
punishment provided for the original offence.
'Abetted' in Section 109 means the specific offence
abetted. Therefore, the offence for the abetment of
which a person is charged with the abetment is
normally linked with the proved offence."

15.
In
M. Mohan Vs. State
2011 (3) SCC 626, the Apex
Court while dealing with the abetment, in para 44 and
45 observed thus:-

"45. 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.

46. The intention of the Legislature and the ratio of the
cases decided by this court are 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 this act must have been
intended to push the deceased into such a position that
he/she committed suicide."

16. In the facts of the present case, it emerges that the
deceased borrowed a total amount of Rs.6 lacs from 10
persons. In the suicide note, on which date and what

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amount the applicants herein had lent having not been
disclosed by the deceased. Even in dying declaration as
well as the statement recorded under
Section 161
of
Cr.P.C., there is no specific disclosure that how much
amount and on which date, the applicants had lent the
money to the deceased. The allegations of harassment
and preventing the deceased in doing his business of
rickshaw driving seem to be general in nature and
vague. No specific allegations made against the
applicants that they individually subjected mental
harassment on the issue of finance advanced by them.
In such circumstances, prima facie it appears that the
deceased was in depression as he could not repay the
handy loan obtained from various persons, as a result,
he decided to end his life and accordingly, he
committed a suicide by consuming poisonous
substance. Thus, considering the factual aspects as
discussed above and in light of legal proposition on the
issue of "abetment of suicide", this Court is of
considered opinion that a casual remark that is likely
to cause harassment in ordinary course of thing, made
against the applicants would not fall within the term
"instigation". Thus, the contents of the suicide note and
the statement of the deceased, prima facie does not
anyway disclosed any incriminating information in the
nature of instigation, provocation, compelling the
deceased to commit suicide. If we read the entire
chargesheet case papers, this Court does not find live

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link or proximity link between the act of accused and
act of committing suicide as nothing specifically
disclosed by the deceased that how much amount the
accused have lent him or how and on which date, they
threatened him and restrained him in doing his
business of rickshaw driving. In such circumstances,
what role they had played in the act of instigation and
how they aided the deceased to commit suicide, having
not been established.

17. The contention of the first informant that the facts
disclosed in the suicide note and material collected
during the course of investigation would suggest that
deceased had no option and was frustrated by the
continuous act of instigation allegedly done by the
accused and therefore, prima facie the offence under
Section 306 is made out against the accused and in
support of his submission, reliance has been placed on
the decision of the Apex Court in
Pravin Pradhan

(supra).

This Court is of considered view that the
suicide note referred in the case of
Pravin Pradhan

(supra) and considering the peculiar facts of the cited
case, the Apex Court was of the view that the prima
facie case is made out against the accused.

The facts of
the present case are totally on different footing and the
facts of suicide note are also totally different to the case
of
Pravin Pradhan
(supra). Thus, cited case is
distinguisable on factual aspects and the same is not

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applicable to the facts of the present case. Therefore,
this Court is of considered view that when there is no
prima facie case made out for the offence under
Section
of Indian Penal Code, then continuation of
proceedings would amount to harassment to the
applicants and abuse of process of law and Court. In
such circumstances, the contention raised by the
counsel for the original informant cannot be accepted.

18. In the foregoing reasons, this Court is of prima facie
view that this Court is unable to find anything in the
FIR or chargesheet case papers which could suggest
that the applicants had instigated the deceased to
commit a suicide. This court is in total agreement with
the contentions raised by learned counsel for the
applicants that lending money and asking it to back
would not be a ground to hold the applicants
responsible for instigation or aiding to the deceased to
commit suicide as mere allegations of harassment
without there being any positive act or criminal intent
on the part of the applicants. In such circumstances,
considering the peculiar facts and circumstances of the
present case, if the allegations for the charge of offence
under
Section 306
of Indian Penal Code are accepted as
it is, do not prima facie constitute an offence under

Section 306
of Indian Penal Code against the applicants
herein.

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19. Hence, this is a fit case to exercise inherent power to
quash the proceedings of FIR and other consequential
proceedings thereof, so far as offences under
Section
and
of Indian Penal Code are concerned.
In the
case of
Ishwarpratap Singh Vs. State of Uttar
Pradesh
, [2018 (13) SCC 612], the Apex Court held
that there is no prohibition under the law for quashing
the chargesheet in part. The jurisdictional Court
concerned shall proceed further so far other offences
registered against the applicants as referred in para 1
of this judgment in accordance with law.

20. Accordingly, present application is partly allowed. FIR
being I-C.R.No. 25/2016 registered with Gadh Police
Station, Dist: Banaskantha and other consequential
proceedings arising therefrom only for the offences
under Sections 306 read with 34 of
Indian Penal Code
,
are quashed qua the applicants herein. Rule is made
absolute to the aforesaid extent.

Sd/-

(ILESH J. VORA,J)

SUCHIT

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