KIRITSINH LAKHUBHA VALA (DARBAR) vs STATE OF GUJARAT & ANR.

Criminal Misc. Application No. 1562 of 2017 is filed

by the applicant-original accused in FIR, being C.R-I No.

71/2013 lodged with Upleta Police Station, District

Rajkot [Rural] for the offence punishable under Section

306 and 506 (2) of the Indian Penal Code, for recall of

the Oral Order dated 23rd December 2016 passed in

Criminal Misc. Application [For Quashing & Setting-

aside FIR/Order] No. 20623 of 2013, whereby, the

interim relief granted in favour of the applicant-original

accused in terms of para 5 [b] of the petition came to

be vacated, in absence of non representation of the

case on behalf of the petitioner.

Short facts of Criminal Misc. Application No. 20623

of 2013, as it unfolds, read thus -

2.1 Complainant-Shri Pratikbhai, who is son of the

deceased Shantilal Desai has lodged a complainant on

15th November 2013 against the applicant herein

alleging that the applicant had committed suicide due

to constant threats administered on him for repaying

the borrowed money. It is the case of the respondent

no. 2 herein that his father borrowed some money from

the applicant herein on interest, which he could not

repay in time and therefore, he was persistently being

threatened by the applicant to face dire consequences

in case of failure to repay the amount. Finding no

alternative, the father of the complainant consumed

poison to end his life on 13th November 2013. While

the father of the complainant was being shifted to a

Hospital, the mother of the complainant found a suicide

note containing serious allegations against the

applicant herein. Based on these facts, a complainant

came to be lodged by the respondent no. 2 herein

against the present applicant before Upleta Police

Station, Rajkot, being I-C.R No. 71 of 2013 for the

offence punishable under Sections 306 and 506 (2) of

the Indian Penal Code on 15th November 2013.

2.2 Before the matter could be investigated by the

Police, the applicant-accused moved Criminal Misc.

Application No. 20623 of 2013 under Section 482 of the

Code of Criminal Procedure, 1973 seeking quashment

of the complaint, being I-C.R No. 71 of 2013 registered

with Upleta Police Station, District-Rajkot [Rural], which

is impugned herein.

Heard learned advocate Shri J.V Vaghela appearing

on behalf of the applicant and Shri K.P Raval, learned

APP appearing on behalf of the respondent-State of

Gujarat.

It is vehemently urged by learned advocate Shri

Vaghela appearing on behalf of the applicant that a

false FIR is lodged by the respondent no. 2 involving

the applicant in a serious offence. It is further urged

that in the FIR nowhere it is stated as to when and what

amount was borrowed by the deceased from the

applicant, and therefore, the say of the complainant is

not probable. That, the complaint was lodged after

three days of the incident and no sufficient explanation

is given by the complainant with regard to inordinate

delay, though the suicide note was allegedly recovered

and received by the family members on the said date of

incident. That, in fact, the applicant had never given

any amount to the deceased and therefore, there is no

question of demanding the same back. That, in fact, the

deceased has demanded money from the applicant, as

the deceased was facing some financial difficulties and

the applicant had refused to give the amount, and

therefore, due to pressure on financial count, the

deceased has committed suicide. That, there are good

family relationship between the petitioner and the

deceased. That, the deceased had performed duty as

the father for doing Kanyadhan of the wife of the son of

the petitioner on 18th May 2013. That, no date and time

is stated in the impugned FIR regarding the alleged

incident and only general allegations are made

involving the applicant. That no provision of Sections

306 and/or 107 of the Indian Penal Code are attracted,

as the applicant has not abetted in commission of

offence. That, even if it is assumed that the applicant

had demanded any money back from the deceased, no

offence under Section 306 IPC is made out, and

therefore, since the said FIR being false, the same

deserves to be quashed.

4.1 Learned advocate for the applicant further urged

that the applicant is being unnecessary dragged into

the criminal proceedings by the complainant with a

personal vengeance so that the applicant could not

lodge any complaint against the respondent no. 2. He

further urged that though a suicide note was allegedly

found from the dead body, no complaint was

immediately lodge, however, the same came to be

belatedly lodged on the instigation of the village

persons, and therefore also, the said FIR deserves to be

quashed and set-aside. Hence, it was requested by Shri

Vaghela, learned advocate for the applicant to quash

and set-aside the impugned FIR in the interest of justice

by allowing this Application and thereby restoring ad

interim relief granted earlier by this Court vide Oral

Order dated 24th December 2013 and confirmed vide

Oral Order dated 18th June 2014.

4.2 To buttress his submissions, learned advocate for

the applicant has relied on the following two decisions

of the Apex Court viz., [a] in cases of Netai Dutta v.

State of West Bengal, reported [2005] 2 SCC 659

and in Sanju @ Sanjay Singh Sengar v. State of

Madhya Pradesh, [2002] 5 SCC 371.

Per contra, learned APP Shri K.P Raval appearing

for the respondent-State strongly opposed the

arguments made for and on behalf of the applicant by

learned advocate Shri JV Vaghela. It was vehemently

urged by learned APP that due to interim relief granted

by this Court in favour of the applicant, investigation in

the offence was completely hampered and it was not

possible for the Investigating agency to proceed ahead

into the matter. He urged that in a serious offence of

this nature, in fact, the Investigating agency ought to

have been permitted to proceed in the investigation to

find out the truth. It is further submitted that in the

complaint itself lodged by the respondent no. 2 clear

allegations are made by the complainant that due to

constant pressure and threats given by the applicant to

the deceased-the father of the complainant, demanding

money, the deceased was not in a position to manage

the funds to return the same to the applicant which

were borrowed on interest from the applicant and in

absence of there being any alternate solution but to

commit suicide, the deceased choose to end his life by

consuming poison. That, clear allegations are made by

the complainant in his complaint against the present

applicant that time and again threats were

administered upon the applicant and last such call was

made on 13th November 2013 demanding money,

otherwise to face dire consequences, and therefore, the

deceased was compelled to take ultimate step of his

life by consuming poison. That, at present, the

correctness of the allegations or otherwise is not

required to be ascertained by the Court, since prima

facie case is made out by the complainant. Whatever

the allegations are made in the complaint would require

support only if investigation is permitted by the Court

by vacating the ad interim relief granted by the Court.

Learned APP added that the State had already

preferred Criminal Misc. Application [for Vacating

Interim Relief] No. 13078 of 2014 requesting this Court

to vacate the ad interim relief granted, however, the

Court vide Oral Order disposed of the said application

with a direction to the registry to list Criminal Misc.

Application No. 20623 of 2013 for hearing on 24th

September 2014. He further added that unfortunately

the main Criminal Misc. Application, being Criminal

Misc. Application No. 20623 of 2013 could not proceed

further and as a result investigation into the offence

could not be carried out by the Investigating agency.

5.1 Under the circumstances, it was urged by learned

APP Shri K.P Raval appearing for the respondent-State

to dismiss both these applications.

Having heard learned advocates appearing on

behalf of the respective sides and having given anxious

thought and consideration to various contentions put

forward by the respective parties, it appears that the

son of the deceased ie., the respondent no. 2 herein

has lodged a complaint against the present applicant.

As per the averments made in the complaint, deceased

had borrowed certain sum of money from the applicant

and thereafter he was not in a position to repay the

same to the applicant, and therefore, applicant had

administered threats upon the deceased and as a result

of which, he has committed suicide by consuming

poison. It is further averred in the complaint that while

taking the deceased to the Hospital, mother of the

complainant found a suicide note wherein certain

allegations are made by the deceased against the

present applicant. In the suicide note, it is clearly

mentioned under the handwritings of the deceased that

some amount was received by the deceased from the

applicant on interest which he was unable to repay to

the applicant. On the day of incident, at about 11:15

hours, a telephone call was made by the applicant to

the deceased threatening him to repay the money,

failing which he will have to face serious consequences.

It is mentioned in the suicide note by the deceased that

due to his mismanagement and administration of

threats by the applicant, he was not in position to cope- up with the situation, and therefore, it was decided to

end the life. This Court has noticed that some

photographs of marriage ceremony are produced on

the record by the applicant to show that there was

good family relationship with the deceased, since the

deceased has performed duty as a father by doing

Kanyadhan of the wife of the son of the applicant 18th

May 2013. At present, the alleged relationship as stated

by the applicant with the deceased cannot be admitted

by accepting the correctness of the photographs

showing good relations before the alleged incident. In

the suicide note, it is clearly mentioned that the money

borrowed by the deceased were demanded back by

exerting pressure and administering threats to the

deceased. Not only that, it appears that threats were

administered upon the deceased to even be ready to

face dire consequences in case of failure to repay the

money with interest, and therefore, finding no

alternative, the deceased consumed poison and

committed suicide.

It appears form the record that this Court was

pleased to grant ad interim relief in favour of the

applicant at the initial stage, which was confirmed by

this Court vide Oral Order dated 18th June 2014. Hence,

the investigation could not proceed ahead. As argued

by Shri KP Raval, learned APP appearing for the

respondent-State, no investigation was carried out in

the offence, though serious allegations have been

made against the applicant herein.

As the entire matter stands only at the stage of

registration of the case and the investigation into the

matter has not at all proceeded with on account of the

order of stay granted by this Court, it is not necessary

for the Court at this stage to embark upon an inquiry

whether the allegations in the FIR are reliable or not

and thereupon to render a finding whether any of the

allegations is proved. This is a matter which can be

examined only by the concerned trial Court, after entire

material is placed before it on a thorough investigation.

This Court is not called upon to examine the truth or

otherwise of each of the instances of the alleged

offence indicted in the complaint in snippet form and

thereafter string them together and express any

opinion either way, since any view or opinion by this

Court may affect the case of either party or cripple the

course of investigation.

8.1 The Apex Court in the case of State of Haryana

& Ors. vs. Bhajanlal & Ors ., reported in 1992 Suppl.

[1] SCC 335 has framed certain guidelines for

exercising powers by the High Courts under Section

482 of the Code of Criminal Procedure, 1973. In the

words of the Apex Court,

"The following categories of cases can be stated by way of illustration wherein the extra ordinary power under Article 226 or the inherent powers under Section 482 CrPC can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an

exhaustive list or myriad kinds of cases wherein such power should be exercised :

[1] Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

[2] Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code .

[3] Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

[4] Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence, no investigation is permitted by a police offence without an order of a Magistrate as contemplated under Section 155 (2) of the

Code.

[5] Where the allegations made in the FIR or complaint are so absurd and

inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

[6] Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act [under which a criminal proceeding is instituted] to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

[7] Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

8.2 The powers of quashing a criminal proceeding

should be exercised very sparingly and with

circumspection and that too in the rarest of the rare

cases. The extraordinary or inherent power do not

confer an arbitrary jurisdiction on the Court to act

according to its whim or caprice. The Court will not be

justified in embarking upon an enquiry as to the

reliability or genuineness or otherwise of the allegations

made in the FIR or the complaint.

Looked at from all angles, prima facie, the

allegations made in the FIR constitute a cognizable

offence, requiring a thorough investigation into the

matter.

In the present case, the fact situation is different

from that in the case of Netai Dutta v. State of West

Bengal [Supra ], relied upon by the learned advocate

for the petitioner, and therefore, the said authority will

not be of help to the applicant.

10.1 As per the facts given in a case decided by the

Apex Court [Supra], the deceased was an employee of

a company who was transferred to another work-site,

but did not join there. Some two years later in point of

time, he sent a letter of resignation expressing his

grievance against stagnancy of salary and unfortunate

circumstances. The Company accepted his resignation,

however, on 16th February 2001, his dead body was

found near the railway line. Subsequently, on the basis

of a suicide note allegedly recovered from the dead

body, the brother of the deceased lodged a complaint

with the police and consequently, a case under Section

306 IPC was registered against the appellant and some

others. The suicide note indicated that the appellant

herein and one PC had engaged him in several

wrongdoings and that he had reported certain incidents

to them. He also expressed dissatisfaction at the

working conditions in the office and at the work sites.

The appellant filed a petition under Section 482 CrPC

for quashment of the said criminal proceedings, but the

High Court rejected that petition. The appellant therein

then filed an appeal by special leave before the Apex

Court, which was allowed. In the cited case, there were

no allegations made by the complainant against the

appellant-accused in any way of harassing his brother

in the suicide note. The case was registered against the

appellant therein without any factual foundation. The

contents of the alleged suicide note were not making

out any offence against the appellant therein, and

therefore, the Hon''ble Supreme Court was of the view

that there was no ground to proceed against the

appellant and it was a fit case where extra ordinary

powers under Section 482 CrPC could be invoked. In the

instant case, the deceased has made clear allegations

against the present applicant of administering threats

to immediately return the borrowed funds with interest

failing which to face the dire consequences.

In the case of Sanju @ Sanjay Singh Sengar v.

State of Madhya Pradesh [Supra ], while allowing the

appeal, held and observed that, "the suicide was not

proximate to the quarrel though the deceased was

named in the suicide note. Hence, the suicide note was

not the direct result of the quarrel when the appellant

used abusive language and told the deceased to go

and die.". The Court observed that, ".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 a vocation and at the same time indulged in

drinking as revealed from the statement of the wife. He

was a frustrated man." In this case, the investigating

agency was permitted to investigate the offence. The

Hon''ble Supreme Court while considering the case also

considered and relied upon the statement of the

brother of the deceased made under Section 161 CrPC

when reportedly the deceased, after coming back from

the house of the appellant, told him that the appellant

had humiliated him and abuse him with filthy words.

Thus, a plain reading of the suicide note in the cited

case clearly suggested that such a note was not the

handiwork of a man with a sound mind and sense.

Moreover, in a statement given under Section 161 CrPC

before the investigation officer, the wife of the

deceased had stated that the deceased always

indulged in drinking wine and was not doing any work,

and therefore, in the totality of the material available

on the record and the facts and circumstance of that

case, the Apex Court allowed the appeal moved by the

appellant therein and thereby quashed the

proceedings.

In the instant case, however, investigation was

not permitted to the investigating agency, and

therefore, no conclusion can be arrived at by this Court,

at this stage, by accepting the prayer for quashing and

setting aside the impugned FIR registered against the

applicant by the respondent no. 2 herein.

Therefore, in light of the aforesaid facts and

circumstances and considering the allegations made in

the FIR as well as suicide note of the deceased, the

matter requires meticulous examination by the

investigating agency.

It is in these circumstances, considering the

aforesaid facts and circumstances as well as the

guidelines laid down by the Apex Court with regard to

the exercise of jurisdiction under Section 482 CrPC, the

present Criminal Misc. Application No. 20623 of 2013

deserves to be dismissed and is accordingly dismissed

in limine, thereby directing the investigating agency to

expeditiously initiate and conclude the investigation

into the matter and proceed in accordance with law.

Interim protection granted earlier in favour of the

applicant by this Court on 24th December 2013 stands

vacated. Rule is discharged with no order as to costs.

Consequently, Criminal Misc. Application [for

Recall] No. 1562 of 2017 fails and the same is

dismissed accordingly.

After pronouncement of this Order, learned advocate Shri JV Vaghela appearing on behalf of the applicant requested this Court to continue the interim order dated 24th December 2013 for a period of three weeks so that the applicant can avail legal remedy by preferring anticipatory bail application before the concerned Sessions Court. Though, learned APP Shri

Raval has not seriously opposed the prayer made, it would be in the fitness of things to direct the Police authorities not to take coercive steps for a period of two weeks from today so that a pre-arrest bail application can be moved by the applicant herein.