Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 442 (GUJ)

Nileshbhai Ramanlal Chauhan v. State Of Gujarat

2022-04-01

ILESH J.VORA

body2022
ORDER : 1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant - accused has prayed for anticipatory bail in connection with the FIR being C.R. No. 11216025210146 of 2021 registered with Santej Police Station, Dist. Gandhinagar. for the offences under Sections 306, 498A, 504, 506(2) and 114 of IPC. 2. Facts and circumstances giving rise to file the present application is that, the applicant has been charged with Sections 306, 498A, 504, 506(2) and 114 of the IPC. Marriage of the deceased with the present applicant was solemnized on 10.10.2008 and thereafter, they resided in joint family. In the year 2012, the girl child ’Prutha’ was borne. The applicant herein is MD Gynecology by profession, whereas, the deceased Manish did her MD and joined GCS Hospital as Tutor in the year 2010-11 and since then, she had worked there. It is alleged in the FIR that after sometime of marriage i.e. since 2012, the deceased Manisha was subjected to physical and mental harassment by the applicant and in-laws. It is alleged in the FIR that the accused did not like the birth of girl, as they wanted a male child. It is not in dispute that after the birth of the daughter, the applicant and deceased were resided independently at the first floor of the house, whereas, the coaccused resided in the ground floor. In the year 2020, deceased and applicant shifted to their new flat at Shantigram, Water Lily, Ahmedabad and after sometime, father-in-law and mother-in-law, shifted there in new house and resided together. It is alleged in the FIR that the applicant was harassing the deceased by suspecting on her character, saying that he will create forged DNA report to establish that the biological father of the daughter is someone else and not the applicant herein. On 08.04.2021, the deceased Manisha committed suicide by hanging herself at new flat as referred in the FIR. The brother of the deceased lodged an FIR alleging that she had been subjected to mental and physical cruelty by her husband and in-laws, as a result, deceased had committed the suicide. It is alleged in the FIR that the act of the accused amounts to instigation and intentionally they have abetted for alleged suicide. 3. This Court has heard Mr. N.D. Nanavaty, learned Senior Counsel assisted by Mr. It is alleged in the FIR that the act of the accused amounts to instigation and intentionally they have abetted for alleged suicide. 3. This Court has heard Mr. N.D. Nanavaty, learned Senior Counsel assisted by Mr. S.S. Amin, learned advocate for the applicant, Mr. Nisarg Shah, learned advocate for the original informant and Mrs. Krina Calla, learned APP for the respondent State. 4. Learned Senior Counsel, Mr. N.D. Nanavaty, urged following submissions : (i) Referring to the facts of the FIR, he submitted that present FIR has been lodged by the brother of the deceased after delay of almost 20 days and it is nothing but a figment of imagination of the complainant and nothing has ever transpired, as alleged in the FIR. Since last 13 years, the applicant and deceased were peacefully leaving together and their marriage life was very much happy and there was no any domestic issue as alleged in the FIR. (ii) It was submitted that deceased was also a doctor by profession and if there had been any instances of harassment, in that event, deceased would have lodged the criminal complaint. It was further urged that, after purchasing the house property, there was a plan to start their private practice, for which, commercial property was purchased in the Shantigram Township itself, so that they could start their private practice. In this circumstances, prima-facie, no case is made out, as facts and circumstances do not in any way indicate that alleged act would constitute abetment to commit suicide. (iii) It was submitted that the allegations leveled against the applicant for making forged DNA report, itself shows that, the present FIR is nothing but a vague imagination of complainant as at the time of incident, daughter was 9 years old and therefore, if there had been any doubt, as alleged, the present applicant would have not waited for 9 years. On the aspect of having male child, it was submitted that this allegation is totally false and vague and it has been alleged with a view to harass the applicant. In the aforesaid contentions, Mr. On the aspect of having male child, it was submitted that this allegation is totally false and vague and it has been alleged with a view to harass the applicant. In the aforesaid contentions, Mr. Nanavaty, learned Senior counsel submitted that considering the facts and circumstances of the present case, the ingredients to constitute the alleged offence are completely absent in the present case and there was no any mens-rea on the part of the applicant causing the deceased to commit suicide and therefore, prima-facie, case under Section 306 of IPC is not made out. The applicant herein remained present before the IO for the purpose of investigation. The Investigating Agency took visit at the scene of offence and videography of the entire place and collected material such as mobile phone, CC TV footage and thus, most of the investigation is now over. There is no any suicide note left by the deceased. The applicant being a doctor, having deep root in the society and the present FIR is being filed with a view to humiliate the applicant by sending him behind the bar. 5. Learned advocate Mr. Nisarg Shah for original informant and Mrs. Krina Calla for the respondent State, have vehemently opposed the grant of anticipatory bail, contending that there was continuous harassment by the applicant suspecting character of the deceased and threatened her that by making forged DNA report, he would establish the paternity of the daughter and therefore, considering the continuous harassment, it can be inferred that the act of the applicant would fall under the definition of instigation as contemplated under Section 107 of IPC. Thus, therefore, they submitted that looking to allegations made in the FIR, prima-facie offence under Section 306 of the IPC is made out. It was submitted that since 2012, deceased was subjected to cruelty by the applicant and in-laws, for which, deceased on multiple occasions had complaint about physical and metal abuse / torture and there was serious dispute raised by the applicant after the birth of daughter, as she could not give a birth to a boy and thereafter, was harassed by the applicant mainly on the ground that she was medically unfit to deliver a second child. It was submitted that, a decision to purchase house property jointly was a result of severe mental pressure, wherein, the deceased was compelled to give her share in the property. It was submitted that, a decision to purchase house property jointly was a result of severe mental pressure, wherein, the deceased was compelled to give her share in the property. Lastly, it was submitted that even at the time of funeral, the applicant and his father remained absent, which conduct itself shows the negative attitude of the applicant towards the deceased. In these circumstances, it is argued by learned counsel Mr. Shah and Mrs. Krina Calla for the State that the act/allegations amounts to instigation and reflect the mens-rea of the accused and therefore, prima-facie, offence is made out for abetting the alleged suicide against the applicant. 6. I have heard the learned advocates for the parties and perused the material placed on record and taking into consideration the facts of the case, it appears that so far allegations of mental and physical harassment are concerned, no specific instances being alleged in the FIR. It is to be noted that since 2012, the complainant was aware about the harassment, he could have filed the complaint at the earlier stage. There is serious allegations about paternity of the child, as applicant was doubted that someone is biological father of the daughter. In this issue, this Court is of the considered view that the daughter is presently with the applicant and for a period of 9 years, neither of the parties, have ventilated the grievance either before the elderly person of the family or community leader or by filing appropriate complaint. It is to be noted that there is no any evidence brought to the notice of this Court that the deceased had contributed in purchasing the house at Shantigram, Water Lily. On the contrary, they had purchased commercial property to start their private practice. On perusal of whats-app conversation/chats placed on record by the applicant, it demonstrate their cordial relationship. Even during the course of interrogation, nothing incriminating found to indicate that the applicant herein was unhappy with the girl child and had doubted about paternity of the daughter. The record indicates that the informant herein was after the applicant, he was constantly following the manner of investigation and his last conversation with the investigating officer would show, that he intended to send the applicant behind the bar. The Apex Court in the case of Siddharam Satlingappa Mhetre Vs. The record indicates that the informant herein was after the applicant, he was constantly following the manner of investigation and his last conversation with the investigating officer would show, that he intended to send the applicant behind the bar. The Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra, reported in (2011) 1 SCC 694 , has laid down the broad factors and parameters for the purpose of deciding an anticipatory bail. In para-112, the Apex Court observed that while deciding the anticipatory bail application, the Court should consider the aspect of frivolity in prosecution and held that it is only the element of genuineness, that shall have to be considered and in the event of their being some doubt as to genuineness of the prosecution, in normal course of events, the accused is entitled to an order of bail. 7. In the facts of the present case, considering the settled law for the charge under Section 306 of the IPC, this Court is of prima-facie considered view that mere an allegation of harassment without any positive action on the part of the accused, proximate to time of occurrence, which led to suicide would not amount to an offence under Section 306 of the IPC. 8. For the foregoing reasons, this Court is of the considered view that the applicant herein has cooperated with the investigation and having a roots in the society and there is no possibility of him to flee from the justice and if bail is granted, no prejudice caused to the right of investigating agency. Therefore, without expressing merits of the case, the case is made out for anticipatory bail. 9. Considering the facts and circumstances of the case and the role attributed to the present applicant in the alleged offence, I find no reason to decline pre-arrest bail to the applicant. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with a FIR being C.R. No. 11216025210146 of 2021 registered with Santej Police Station, Dist. Gandhinagar. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with a FIR being C.R. No. 11216025210146 of 2021 registered with Santej Police Station, Dist. Gandhinagar. on his executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions: (a) shall cooperate with the investigation and make himself available for interrogation whenever required; (b) shall remain present at concerned Police Station on 18.02.2022 between 11.00 a.m. and 2.00 p.m.; (c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer; (d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; (e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change their residence till the final disposal of the case till further orders; (f) shall not leave India without the permission of the Trial Court and if having passport shall deposit the same before the Trial Court within a week; and (g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits; 10. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. 11. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. 12. Rule is made absolute to the aforesaid extent. Direct service is permitted.