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2017 DIGILAW 220 (GUJ)

Pinkeshbhai Nanalal Doshi v. State of Gujarat

2017-01-30

V.M.PANCHOLI

body2017
JUDGMENT : V.M. Pancholi, J. 1. Learned counsel appearing for the applicants in both the matters requested to amend the prayer clause. Request as prayed for is granted. Applicants are permitted to amend the prayer clause. 2. Special Criminal Application No. 484 of 2009 is filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code' for short), wherein the petitioner - original accused No. 1 has prayed that the FIR being C.R. No. I-41/2009 registered with Deesa Police Station and the proceedings pending pursuant to the said FIR be quashed and set aside. Similarly, Criminal Misc. Application No. 5311 of 2009 is filed by the original accused No. 2 under Section 482 of the Code, wherein the applicant has also prayed for the similar relief which is prayed in Special Criminal Application No. 484 of 2009. 3. As the issue involved in both the applications is common and both the accused are praying similar relief, with the consent of the learned advocates appearing for the parties, both the applications are taken up for final disposal. 4. Heard learned advocate Mr. A.D. Shah for the original accused No. 2, learned advocate Mr. Kishor Prajapati for Mr. Mehul Rathod for original accused No. 1, learned Additional Public Prosecutor Mr. D.M. Devnani for the respondent - State and learned advocate Mr. Pratik Barot for respondent No. 2 - original complainant. 5. Learned advocate Mr. A.D. Shah appearing for one of the accused - applicants referred to the allegations made in the FIR and submitted that as per the allegations, deceased Rajubhai had left the residence on 28.02.2009 at about 10:30 a.m. towards his office. After some time, Rajubhai made a phone call to the complainant and told her to see the chit placed in the drawer of the cupboard and thereafter he disconnected the phone. It is further alleged that when the complainant opened the cupboard and took out the chit from the drawer, it was found that Rajubhai had clearly mentioned about his decision to commit suicide in view of the harassment made by the accused. She, therefore, immediately contacted her father-in-law. However, in the meantime, it was revealed that her husband was taken to Lions Hospital, Mehsana by Bharatbhai Thakkar and Pareshbhai Trivedi. She, therefore, immediately contacted her father-in-law. However, in the meantime, it was revealed that her husband was taken to Lions Hospital, Mehsana by Bharatbhai Thakkar and Pareshbhai Trivedi. When she reached to Lions Hospital, she came to know that her husband died during the treatment at about 11:40 p.m. It is therefore alleged in the impugned FIR that her husband has committed suicide because of the harassment and cruelty at the hands of the accused. 6. Learned advocate Mr. Shah thereafter referred to the suicide note written by the deceased and submitted that the so-called suicide note was written by the deceased on 21.02.2009 and there is no reference with regard to the incident of beating by the accused and getting treatment in the private hospital before 15 days of the incident as alleged in the FIR. It is further submitted that after a period of 7 days, the deceased Rajubhai has committed suicide and therefore there is no abetment within the meaning of Section 107 of the Indian Penal Code in commission of suicide by Rajubhai. It is, therefore, submitted that ingredients of alleged offences are not made out. 7. Learned advocate Mr. Shah thereafter submitted that deceased Rajubhai was the proprietor of one Arihant Infocomm and he executed an agreement on 20.10.2007 with Reliance Communications Infrastructure Ltd. Learned advocate Mr. Shah thereafter referred to the communication dated 23.02.2009 addressed by deceased Rajubhai as proprietor of Arihant Infocomm which was addressed to Reliance Communications. Both these documents are annexed in Special Criminal Application No. 484 of 2009. After referring to the same, it is contended that when deceased Rajubhai was running the business in the name of Arihant Infocomm as proprietor of the said proprietorship firm, there is no question of demanding Rs. 2,23,500/-, the so-called loss caused in the said business as alleged in the FIR. Therefore the impugned FIR be quashed and set aside. 8. Learned advocate Mr. Shah has placed reliance upon the decisions rendered by the Hon'ble Supreme Court in the case of Sanju alias Sanjay Singh Sengar v. State of M.P., AIR 2002 SC 1998 , in the case of State of Kerala and Ors. v. S. Unnikrishnan Nair and Ors., AIR 2015 SC 3351 and in the case of Gurcharan Singh v. State of Punjab, 2016 Law Suit (SC) 1141 - Criminal Appeal No. 1135 of 2016. 9. Learned advocate Mr. v. S. Unnikrishnan Nair and Ors., AIR 2015 SC 3351 and in the case of Gurcharan Singh v. State of Punjab, 2016 Law Suit (SC) 1141 - Criminal Appeal No. 1135 of 2016. 9. Learned advocate Mr. Kishor Prajapati for Mr. Mehul Rathod appearing for accused No. 1 in Special Criminal Application No. 484 of 2009 has supported the submissions canvassed on behalf of learned advocate Mr. Shah and adopted his arguments. 10. On the other hand, learned advocate Mr. Pratik Barot appearing for the respondent No. 2 - original complainant has opposed this application. It is submitted that because of the continuous and constant harassment and torture made by the accused, deceased Rajubhai has committed suicide and there are specific allegations made by the complainant in the impugned FIR with regard to the same. Therefore, this Court may not exercise the powers under Section 482 of the Code. 11. Learned advocate Mr. Barot has thereafter referred to the suicide note written by the deceased and submitted that in the said suicide note, names of the accused are specifically mentioned and the deceased has stated that both the accused were giving threats to kill him and because of the harassment of the accused, deceased Rajubhai has committed the suicide and therefore when the suicide note is written by the deceased which is specifically referred to in the impugned FIR, this Court may not entertain these applications. 12. Learned Additional Public Prosecutor Mr. Devnani has also supported the submissions canvassed on behalf of learned advocate Mr. Barot and has also submitted that when the ingredients of the alleged offences are made out in the FIR, this Court may not entertain these applications and the same be dismissed. 13. Having heard the arguments canvassed on behalf of the learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that deceased Rajubhai was proprietor of Arihant Infocomm. He executed an agreement with Reliance Communications Infrastructure Ltd. on 20.10.2007. The said document is produced at page 16 of the compilation of Special Criminal Application No. 484 of 2009. It is further revealed that as a proprietor of Arihant Infocomm, deceased Rajubhai sent a letter dated 23.02.2009 to Reliance Communications and requested one Sunilbhai Mundra of Reliance Communications to transfer the amount of commission of one R-Del, Kheralu to the account of Arihant Infocomm. It is further revealed that as a proprietor of Arihant Infocomm, deceased Rajubhai sent a letter dated 23.02.2009 to Reliance Communications and requested one Sunilbhai Mundra of Reliance Communications to transfer the amount of commission of one R-Del, Kheralu to the account of Arihant Infocomm. He has also demanded the account statement of Arihant Infocomm. He also requested to send the pending amount of commission and account statement immediately. At this stage, it is relevant to note that the so-called suicide note is written by the deceased on 21.02.2009. It further transpires from the record that after writing the suicide note on 21.02.2009, deceased Rajubhai committed suicide on 28.02.2009. Thus, there is a gap of approximately 7 days between writing of alleged suicide note and the date of commission of suicide by deceased Rajubhai. Thus, in the background of the aforesaid facts if the allegations made in the FIR are carefully examined, it is revealed that the complainant has alleged that the accused have given threats to deceased Rajubhai before 15 days of the incident and accused Rameshbhai Pandya has beaten the deceased Rajubhai before 15 days of the incident for which Rajubhai has taken the treatment in the private hospital. However, there is no reference in the suicide note written by the deceased with regard to the said incident. It is alleged in the FIR that Rajubhai had served in Reliance Agency with accused Pinkeshbhai Doshi for a period of six years and thereafter had started business before 6 months with both the accused. However, Rajubhai was not bringing salary since last six months. Loss of Rs. 2,23,000/- was caused in the said business and therefore both the accused were demanding the amount from the deceased Rajubhai and were harassing him, as a result of which, Rajubhai has committed suicide. However, if the aforesaid allegations are examined in view of the material produced on record, it can be said that the allegations are not supported by any material and on the contrary it is reported that deceased Rajubhai was carrying on his business as a proprietor of Arihant Infocomm and therefore there is no question of joint business with the accused by the deceased Rajubhai as alleged in the FIR. From the communication dated 23.02.2009 it is further clear that after the date of so-called suicide note written on 21.02.2009, on 23.02.2009, deceased Rajubhia has requested one Sunilbhai Mundra of Reliance Communications to pay the amount of commission and also requested for sending the account statement. 14. At this stage, it is relevant to refer to the provisions contained in Section 107 of the Indian Penal Code, which provides as under: "107. Abetment of a thing.-A person abets the doing of a thing, who- (First) - Instigates any person to do that thing; or (Secondly)-Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) - Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.-A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, willfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act." 15. In the case of Sanju alias Sanjay Singh Senga (supra), the Hon'ble Supreme Court has observed and held 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'. 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 derived 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. 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. Xxx xxx xxx 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 drunkned 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." 16. In the case of S. Unnikrishnan Nair and Others (supra), the Hon'ble Supreme Court has observed and held in para 11, 13, 14, 15 and 18 as under: "11. The aforesaid provision was interpreted in Kishori Lal v. State of M.P by a two-Judge Bench and the discussion therein is to the following effect:- "Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in IPC. 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 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 109 provides 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." xxx xxx xxx 13. As we find from the narration of facts and the material brought on record in the case at hand, it is the suicide note which forms the fulcrum of the allegations and for proper appreciation of the same, we have reproduced it herein-before. On a plain reading of the same, it is difficult to hold that there has been any abetment by the respondents. On a plain reading of the same, it is difficult to hold that there has been any abetment by the respondents. The note, except saying that the respondents compelled him to do everything and cheated him and put him in deep trouble, contains nothing else. The respondents were inferior in rank and it is surprising that such a thing could happen. That apart, the allegation is really vague. It also baffles reason, for the department had made him the head of the investigating team and the High Court had reposed complete faith in him and granted him the liberty to move the court, in such a situation, there was no warrant to feel cheated and to be put in trouble by the officers belonging to the lower rank. That apart, he has also put the blame on the Chief Judicial Magistrate by stating that he had put pressure on him. He has also made the allegation against the Advocate. 14. In Netai Dutta ( AIR 2005 SC 1775 ) (supra), a two-Judge Bench, while dealing with the concept of abetment under Section 107 I.P.C. and, especially, in the context of suicide note, had to say this: "In the suicide note, except referring to the name of the appellant at two places, there is no reference of any act or incidence whereby the appellant herein is alleged to have committed any willful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the act of suicide. There is no case that the appellant has played any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased Pranab Kumar Nag. Apart from the suicide note, there is no allegation made by the complainant that the appellant herein in any way was harassing his brother, Pranab Kumar Nag. The case registered against the appellant is without any factual foundation. The contents of the alleged suicide note do not in any way make out the offence against the appellant. The prosecution initiated against the appellant would only result in sheer harassment to the appellant without any fruitful result. In our opinion, the learned Single Judge seriously erred in holding that the First Information Report against the appellant disclosed the elements of a cognizable offence. There was absolutely no ground to proceed against the appellant herein. The prosecution initiated against the appellant would only result in sheer harassment to the appellant without any fruitful result. In our opinion, the learned Single Judge seriously erred in holding that the First Information Report against the appellant disclosed the elements of a cognizable offence. There was absolutely no ground to proceed against the appellant herein. We find that this is a fit case where the extraordinary power under Section 482 of the Code of Criminal Procedure is to be invoked. We quash the criminal proceedings initiated against the appellant and accordingly allow the appeal." 15. In M. Mohan ( AIR 2011 SC 1238 ) (supra), while dealing with the abatement, the Court has observed thus: "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. 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." xxx xxx xxx 18. Coming to the case at hand, as we have stated earlier, the suicide note really does not state about any continuous conduct of harassment and, in any case, the facts and circumstances are quite different. In such a situation, we are disposed to think that the High Court is justified in quashing the proceeding, for it is an accepted position in law that where no prima facie case is made out against the accused, then the High Court is obliged in law to exercise the jurisdiction under Section 482 of the Code and quash the proceedings. [See V.P. Shrivastava v. Indian Explosives Limited and Others]" 17. In the case of Gurcharan Singh (supra), the Hon'ble Supreme Court, after considering its various other decisions, has observed and held in para 32 as under: "32. [See V.P. Shrivastava v. Indian Explosives Limited and Others]" 17. In the case of Gurcharan Singh (supra), the Hon'ble Supreme Court, after considering its various other decisions, has observed and held in para 32 as under: "32. The assessment of the evidence on record as above, in our considered opinion, does not demonstrate with unqualified clarity and conviction, any role of the appellant or the other implicated in-laws of the deceased Surjit Kaur, as contemplated by the above provisions so as to return an unassailable finding of their culpability under Section 306 IPC. The materials on record, to reiterate, do not suggest even remotely any act of cruelty, oppression, harassment or inducement so as to persistently provoke or compel the deceased to resort to self-extinction being left with no other alternative. No such continuous and proximate conduct of the appellant or his family members with the required provocative culpability or lethal instigative content is discernible to even infer that the deceased Surjit Kaur and her daughters had been pushed to such a distressed state, physical or mental that they elected to liquidate themselves as if to seek a practical alleviation from their unbearable earthly miseries." 18. Keeping in mind the aforesaid provision of law as well as the decisions rendered by the Hon'ble Supreme Court if the facts of the present case are carefully examined, it can be said that after writing of suicide note on 21.02.2009, deceased Rajubhai has committed suicide on 28.02.2009 i.e. after a period of 7 days. There is no reference with regard to the incident of beating by one of the accused prior to 15 days of the incident as well as taking treatment by the deceased in private hospital in the suicide note. The fact that deceased committed suicide after a period of 7 days after writing of a suicide note would itself clearly suggest that it is not the direct result of the so-called harassment by the accused. Thus, there is no instigation or any conspiracy or intentional aid by the applicants accused in commission of the suicide by deceased Rajubhai. Thus, there is no abetment within the meaning of Section 107 of the Indian Penal Code. In the facts of the present case, the suicide note does not indicate about any continuous conduct of harassment. Thus, there is no instigation or any conspiracy or intentional aid by the applicants accused in commission of the suicide by deceased Rajubhai. Thus, there is no abetment within the meaning of Section 107 of the Indian Penal Code. In the facts of the present case, the suicide note does not indicate about any continuous conduct of harassment. The intention of the legislature and the ratio of the aforesaid decisions rendered by the Hon'ble Supreme Court are clear that in order to proceed against an accused under Section 306 of Indian Penal Code 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 committed suicide because of such act. In the present case, aforesaid important aspects are totally missing. There is no material pointed out by the learned advocate appearing for the original complainant as well as the learned APP in support of the allegations made in the impugned FIR filed by the respondent No. 2 against the applicants accused. 19. Thus, in the facts and circumstances of the present case, this Court is of the opinion that the impugned FIR and the proceedings pursuant thereto are nothing but an abuse of process of the Court and when the ingredients of the alleged offences are not made out in the FIR, this Court is of the opinion that the powers vested under Section 482 of the Code are required to be exercised. 20. Accordingly, both the applications are allowed. FIR being C.R. No. I-41/2009 registered with Deesa Police Station and proceedings pursuant to filing of the FIR being C.R. No. I-41/2009 are hereby quashed and set aside. Rule made absolute.