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CR.MA/13479/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 13479 of 2010
With
CRIMINAL
MISC.APPLICATION No. 13481 of 2010
With
CRIMINAL
MISC.APPLICATION No. 13483 of 2010
=============================================
ANANDKUMAR
RAMANBHAI PARMAR - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=============================================
Appearance
:
MR PH BUCH for Applicant(s) :
1,
MR LR PUJARI ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1 in
Cr.ma Nos. 13479 and 13483/2010 and MR KARTIK PANDYA, APP in Cr.ma
No.13481/2010.
=============================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 03/12/2010
ORAL
ORDER
1. Rule.
Learned APPs waives service of rule on behalf of respondent-State.
2. These
applications are preferred by the applicants under Section 439 of the
Code of Criminal Procedure, 1973 to release them on bail against whom
FIR being C.R. No.I-186/2010 filed in Kalol Taluka Police Station for
the offences under Sections 498-A, 306 and 114 of Indian Penal Code
and Sections 3 and 7 of Prohibition of Dowry Act is filed.
3. The
applicants had filed application before learned Additional Sessions
Judge, Fast Tract Court No.2, Gandhinagar, Camp at Kalol and the
above Criminal Misc. Application No.734 of 2010 came to be rejected
on 12.10.2010 and, therefore, the applicants are before this Court.
4. Learned
advocate appearing for the applicants submit that the case of the
prosecution about subjecting the deceased with mental and physical
cruelty and demanding dowry by the husband and in-laws are false and
not even borne out from the averments made in the FIR. Besides,
there is no proximity to the alleged case of suicide committed by the
deceased and considering overall facts and circumstances, when no
case is made out, the applicants deserve to be enlarged on bail. It
is further submitted that if Sections 306 of Indian Penal Code is
seen, it has relevance with Section 107 of the Code and none of the
ingredients of Section 107 is found in the complaint and when the
incident has taken place on 20.9.2010 and the offence is registered
on 23.9.2010 and there is no direct or indirect evidence and the case
of the prosecution is based on mere allegations, the applicants
deserve to be enlarged on bail in support of his submissions.
Learned advocate have relied on decisions of the Apex Court in the
case of Devender Sigh v. State of Haryana [I(2007) CCR 131(SC)]
and State of Gujarat v. Sunilkumar K.Jani [1996(2) GLH 5] and
submitted that it is not open for the Court to jump to the conclusion
that the accused has abated in the crime due to harassment, when case
of the prosecution is based on conjunctures and surmises. Another
decision in the case of State of Gujarat v. Sunilkumar K. Jani
(supra), it is submitted that to prove the offence of Section 306
there must be evidence of knowledge and intention relating to the
crime and proximate assistance and if evidence of the accused is
often quarreling with the deceased wife, it would not amount to
abatement for committing suicide in the facts and circumstances of
the case and, therefore, it is submitted that the applicants deserve
bail.
5. Learned
APPs appearing for the respondent submits that investigation is now
complete and the charge-sheet is filed and it is open for the
applicants to avail the remedy. However, learned APPs submit that a
bare perusal of the FIR would reveal that the marriage of the
deceased with the husband was of three years and after 1 ½
years of their marriage a baby girl was borne. Besides, after 1
years of the marriage, the husband and other in-laws continuously
started demanding an amount towards dowry and the deceased Jayshree
remained at her parental home for about eight months. Even
thereafter she was subjected to harassment. Because of the demand of
dowry, the father of the victim had to mortgage his residential
premises and an amount was paid. Thus, when the deceased was
subjected mental and physical cruelty and committed suicide, at the
stage of bail a case is made out by the prosecution, particularly,
when the charge sheet is filed.
6. Having
heard learned counsels appearing for the parties, considering the
record of the case including the FIR and other relevant material, it
appears that the deceased Jayshree who had her second marriage with
Anadkumar Ramanbhai Parmar in the year 2007 was no doubt initially
treated well by the in-laws but thereafter she was subjected to
mental and physical cruelty. That, the husband and all in-laws had
often beaten her and when she was subjected to extreme torture and
demand of dowry to the tune of Rupees Five Lakhs she had no other
option but to commit suicide. Even allegations are to the extent
that the father of the deceased had to mortgage his house which would
reveal that at this stage sufficient averments are made to attract
the ingredients of Section 306.
6.1. So
far as submissions about Section 107 of Indian Penal Code in context
to Section 306 is concerned, Section 107 as found in Chapter V of
Indian Penal Code, following language of Section 107 reads as under:
107.
Abatement 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 wilful misrepresentation, or by wilful
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.
6.2. If
the above Section 107 is perused it also includes a person who
intentionally aid by any act or even by illegal omission to doing of
that thing means abatement to a particular crime is held to be liable
for the punishment prescribed for the offence concerned. However,
the above aspect will be subject matter of scrutiny by the trial
court and at this stage, it cannot be entered into and it cannot be
said that ingredients of Section 107 is not found. So far as
decision of the Apex Court is concerned, the Apex Court is concerned
with a case where the learned Trial Judge had acquitted the brother
of appellant and the High Court had proceeded on the basis of demand
made by the husband which did not amount to dowry and, therefore,
reversal of the decision of the trial court by the Supreme Court
about the evidence recored by the trial court about no demand of
dowry is considered and in that context the above decision was given
which is of no help to the applicants at this stage. So far as,
State of Gujarat v. Sunilkumar K.Jani (supra) is
concerned, Division Bench of this Court had an occasion to consider
case in the backdrop of facts that the trial court had acquitted the
accused after considering relevant material on record and statements
of witnesses were tested on the touchstone of Evidence Act and the
above stage is yet not available to the accused herein. This Court
had further noticed that it
was not made clear to the Court concerned about what was the subject
matter of the quarrel on the day of the incident and who initiated
the quarrel. That is not the case in the present case and a decision
rendered in the backdrop of a particular case cannot be made
applicable in a serious crime under Section 498-A, 306 and 114 of the
IPC and, therefore, I am not inclined to exercise discretionary
powers under Section 439 of the Code.
7. All
the applications are rejected. Rule discharged.
[ANANT
S. DAVE, J.]
//smita//
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