Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 1 (GUJ)

JAYESHBHAI TEJMALBHAI THAKKAR v. STATE OF GUJARAT

2022-01-03

GITA GOPI

body2022
ORDER : 1. This application has been filed under Section 439 of the Code of Criminal Procedure for regular bail in connection with the First Information Report being C.R. No.11195004210718 of 2021 registered with Deesa South Police Station, Banaskantha for the offences punishable under Section 306 of the Indian Penal Code. 2. Learned Advocate Mr. Nirav Padhiyar is permitted to file his appearance on behalf of the complainant. Learned Advocate Mr. Padhiyar has also filed the Affidavit of the complainant. 3. Learned Advocate for the applicant Mr. Pravin Gondaliya submitted that the present applicant had purchased the subject Alto Car from the deceased, who is in relation the in-law of the present applicant. For some reason, the vehicle could not be transferred in the name of the applicant and the applicant thereafter, sold the Car and prior to the incident of the said car being seized in an NDPS Case, it had changed hands four times. It is submitted that the present applicant alongwith the deceased was summoned by the police at Bhilwada Police Station, Rajasthan in an NDPS Case. The deceased felt that it was because of the present applicant that the deceased was made an accused in the NDPS Case and owing to the case, the deceased felt that he was defamed in the Society by the present applicant and thus, had committed suicide. It is submitted that the 32 page suicide note of the deceased, suggests that the deceased was under depression as there was a financial crunch and the deceased has also referred to the corona virus pandemic. It is further submitted that there are no direct allegations of instigating the commission of suicide. The act of suicide appears to be out of depression and merely because the applicant has been named in the suicide note, ingredients of Section 306 read with Section 107 of the Indian Penal Code could not get attracted in the matter. It was, therefore, prayed that the present application may be allowed and the applicant herein may be released on regular bail. 4. Learned Advocate Mr. Nirav Padhiyar for the complainant relying on the affidavit of the complainant, who is the son of the deceased, submitted that his father had sold the Alto Car bearing Registration No.GJ-09-AG-7785 to the present applicant for a sum of Rs.55,000/- but since the applicant was a relative, there was no Agreement executed. 4. Learned Advocate Mr. Nirav Padhiyar for the complainant relying on the affidavit of the complainant, who is the son of the deceased, submitted that his father had sold the Alto Car bearing Registration No.GJ-09-AG-7785 to the present applicant for a sum of Rs.55,000/- but since the applicant was a relative, there was no Agreement executed. The deceased had assured the applicant to put his signature as and when necessary on the transfer documents. It is submitted that the present applicant without informing the deceased had sold the Alto Car to one – Behram Suthar who is a Contractor and resident of Ahmedabad. The said Behram Suthar sold the car to Kanji Gurjar Beladiya and the said Kanji Gurjar Beladiya sold it to Naran Leru Gurjar and the said Car has been seized by the police authority at Bhilwada Police Station, Rajasthan in connection with C.R. No.0075/2019 under the allegations of transporting Posh Doda (poppy straw). The deceased was arrested and he remained behind bars for 87 days and thereafter, went into depression as he felt that the present applicant had got him involved in the said case. It is submitted that the suicide note was sent by courier to the complainant’s uncle wherein the deceased had narrated the incident and it is alleged that the applicant had intentionally not transferred the car in his name and without the knowledge of the applicant had sold it to other persons. It is submitted that there is a direct intention and instigation of the present applicant in commission of the offence. 5. Mr. J.K. Shah, learned Additional Public Prosecutor, relying on the Report of the Police Sub Inspector, Deesa City South Police Station submitted that the suicide note reflected that the incident had occurred with the involvement of the present applicant. It is stated that the police during investigation had recovered an Android Mobile phone of the present applicant and the applicant was found to be connected to the witness – Kanji Gurjar in relation to the Alto Car which was sold by the deceased to the present applicant and the police has found direct involvement of the applicant in the commission of abetment of suicide. It was, therefore, prayed that no discretion may be exercised in favour of the applicant. 6. In Gangula Mohan Reddy v. State of Andhra Pradesh reported in 2010 CRI. It was, therefore, prayed that no discretion may be exercised in favour of the applicant. 6. In Gangula Mohan Reddy v. State of Andhra Pradesh reported in 2010 CRI. L.J. 2110, the Apex Court while referring to the case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) reported in 2009 (11) SCALE 24 , observed in Paragraphs 19, 20 and 21 as under :- “19. This court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (11) SCALE 24 had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word "instigation" and "goading". The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 20. 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. 21. The intention of the Legislature and the ratio of the cases decided by this court is 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 committed suicide.” 7. In Ude Singh v. State of Haryana reported in AIR 2019 SC 4570 , referring to the case of Ramesh Kumar v. State of Chhattisgarh reported in 2001 9 SCC 618 , it has been observed in Paragraph 14.2, reproducing the observations of the said case as under :- "34. The word ‘‘abetment’’ has not been explained in Section 306 IPC. In this context, the definition of abetment as provided under Section 107 IPC is pertinent. Section 306 IPC seeks to punish those who abet the commission of suicide of other. The word ‘‘abetment’’ has not been explained in Section 306 IPC. In this context, the definition of abetment as provided under Section 107 IPC is pertinent. Section 306 IPC seeks to punish those who abet the commission of suicide of other. Whether the person has abetted the commission of suicide of another or not is to be gathered from facts and circumstances of each case and to be found out by continuous conduct of the accused, involving his mental element. xxx xxx xxx 36. The word "instigate" literally means to goad, urge forward, provoke, incite or encourage to do an act. A person is said to instigate another person when he actively suggests or stimulates him to an act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. Instigation may be in (express) words or maybe by (implied) conduct. 37. The word "urge forwards" means to advise or try hard to persuade somebody to do something, to make a person to move more quickly in the particular direction, specially by pushing or forcing such person. Therefore, a person instigating another has to "goad" or "urge forward" the latter with the intention to provoke, incite or encourage the doing of an act by the latter. In order to prove abetment, it must be shown that the accused kept on urging or annoying the deceased by words, taunts until the deceased reacted. A casual remark or something said in routine or usual conversation should not be construed or misunderstood as "abetment". 8. Heard learned advocates on both the sides and perused the material on record. It appears that the complaint does not suggest that there was continuous act of the present applicant to have goaded the deceased for commission of suicide. The transaction of sale of Alto Car cannot be considered as direct cause for the commission of suicide. The report suggests that the vehicle had transferred subsequent hands and ultimately, the vehicle was seized in a complaint under the NDPS Act, which was found in the possession of Kanji Gurjar Beladiya and Naran Leru Gurjar Kanji Gurjar and Nar Gurjar. Considering the facts and circumstances of the case, this Court finds this to be a fit case where discretion could be exercised in favour of the applicant. 9. Hence, the present application is allowed. Considering the facts and circumstances of the case, this Court finds this to be a fit case where discretion could be exercised in favour of the applicant. 9. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R. No.11195004210718 of 2021 registered with Deesa South Police Station, Banaskantha on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall; [a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution; [c] surrender passport, if any, to the lower court within a week; [d] not leave India without prior permission of the concerned trial court; [e] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the concerned trial court; 10. The authorities shall adhere to its own Circular relating to COVID-19 and, thereafter, will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. 11. Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.