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2015 DIGILAW 337 (GUJ)

Nareshbhai Keshavlal Choksi v. State of Gujarat

2015-03-26

V.M.SAHAI

body2015
Judgment V.M. Sahai, J. 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 114 of the Indian Penal Code and the charge-sheet bearing No. 129/2002 dated 24.6.2002. 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. 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 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. 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 408 and 420of the Indian Penal Code alleging that the deceased 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 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. 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. 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. 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 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. 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. 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 120 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 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. 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 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. 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 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 161 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, 1998 where the appellant is stated to have used abusive language. 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, 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, 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. 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 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 Criminal Procedure, 1973, as the charge is framed against the applicants. Ms. 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 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, 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. 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 has observed in para 7 and 8 as under:- “7. We are of the opinion that when the earlier revision petition filed under Section 397 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. 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 Section 482of 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 Section397 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 482 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 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. 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., 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. 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 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 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. 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 & 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. 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 ]}. 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 482 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. 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. 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. 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. No. Question Answer 14. Whether you tried to commit suicide ? Yes, I tried to commit suicide. 15. Whether anybody harassed you mentally or physically ? I was mentally harassed by Shri Mohit Srivastav, Gold Desk Officer, S.B.I. Overseas 16. Do you want to say anything more? No. Question Answer 14. Whether you tried to commit suicide ? Yes, I tried to commit suicide. 15. Whether anybody harassed you mentally or physically ? I was mentally harassed by Shri Mohit Srivastav, Gold Desk Officer, S.B.I. Overseas 16. Do you want to say anything more? Shri Mohit Srivastav and Naresh, Parshant & Jignesh, Owners of K.L.Chokshi & company tired to farme him 13. Having perused the records and considering the rival submissions made by the learned counsel for the parties and 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. 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. 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. 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 107 of the Indian Penal Code. It is true that instigation has to be gathered from the circumstances of a particular case. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 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 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 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(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 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. 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”. 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 Section482 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. In above view of the matter, this Court is of the considered opinion that this is a fit case wherein the powers under Section482 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 the offences punishable under Sections 306 and 114 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. Application allowed.