Dilipbhai Jivrajbhai Korat vs State Of Gujarat

S.H.Vora, J

Heard learned advocate, for the applicant and learned APP, for the respondent-State.

This application is filed under Section 439 of the Code of Criminal Procedure for regular bail in connection with F.I.R. registered at I-C.R.No.11208053211150 of 2021 with Rajkot Taluka Police Station for the offences punishable under Sections 306, 406, 387, 120(B) and 114 of IPC.

Facts of the case is as under :-

3.1. Complainant lodged complaint alleging that his brother Viz. Kamlesh Labadia was residing with his family including one daughter, son and wife and daughter's engagement was done and marriage was to be performed and therefore, he was in need of money and wanted to sell his residential house. The complainant's brother executed agreement to sell in favour of one Paresh Janani and took Rs.25 lakhs and thereafter, said agreement to sell was cancelled. Thereafter, agreement was made with present applicant for Rs.1,29,51,000/- and amount of Rs.51,000/- was given as earnest money. Since sell in favour of Mr. Pareshbhai was to be cancelled, present applicant and accused no.2 gave Rs.20 lakhs to complainant's brother. It is further alleged that agreement to sell was to be executed in favour of present applicant when payment of Rs.61 lakh is made and it was agreement that Rs.48 lakh was to be given at the time of execution of sale deed. The work of documentation was to be done by accused no.2. The complainant received phone call from his brother on 08.01.2021 that they were to go for execution of agreement to sell and have to receive money and therefore, complainant and another person went to the office of advocate where complainant and another person stood below the office and brother complainant went to office of accused no.2. After some time, complainant received call from his brother and asked him to come in the office where complainant was told by his brother that accused no.2 is saying that Rs.65 lakh is given to them and asked to executed agreement to sell. Complainant and his brother told that no such money is received and thereafter there was some hot exchange of words with accused no.2. It is also alleged that accused no.1 also came to office of accused no.2 and told whey they are denying payment of money. It is further alleged that they were threatened. It is further alleged that though amount was not paid, accused nos.1 and 2 were pressurizing to execute agreement to sell. It is further alleged that brother of complainant was in dire need of money because of engagement of his son and daughter and was facing financial crises. Due to this harassment, brother of the complainant committed suicide with family. While taking brother of the complainant to the hospital for treatment, he informed complainant that accused no.1 and 2 have cheated him and have made false accusation. Hence, FIR is lodged.

Upon hearing submission, following picture emerges on record :-

(i) Charge sheet is filed.

(ii) No past antecedent is registered qua the applicant.

(iii) It appears that deceased wanted to sell his property and agreement to sell was executed on 09.08.2019 with Mr. Paresh Janani, which was subsequently, cancelled. At that time, the applicant funded money and they entered into oral transaction for sell of the property and some dispute with regard to payment of amount of Rs.61 lakh in cash resulted into one complaint by present applicant on 09.01.2021 against deceased for not honoring agreement to sell. It also appears that deceased also entered into one agreement with Mr. Neel Poojari on 16.04.2021 and subsequently, the applicant issued public notice on 29.04.2021 in the local newspaper. On 04.05.2021, deceased committed suicide and prior to committing suicide, he administered poison to his two children.

(iv) The analysis and scrutiny of police papers, as it is, does not disclose with unqualified clarity to come to conclusive finding at threshold the applicant's unassailable finding of culpability under Section 306 of the IPC. The materials on record do not indicate, prima facie, any act of cruelty or harassment, mental or physical, so as to persistently/continuously provoke the deceased to take extreme step with no other option. No such persistent or consistent applicant's conduct, which requires culpability, is found in the police papers. No doubt, the deceased died due to unnatural death and he was not happy. To attract section 306, there has to be clear mens rea to commit an offence and active and direct role leading the deceased to commit suicide.

(v) The alleged offence under section 306 of IPC provides punishment to the extent of 10 years and therefore, there is no likelihood or possibility to escape trial and flee from justice out of fear of conviction.

(vi) The applicant has deep root in the society, no apprehension as to flee away or escape trial or tempering with the evidence /witnesses is expressed.

(vii) In view of above position emerging at the end of hearing, the application deserves consideration, but by imposing suitable condition to be observed by the applicant, pending investigation and trial.

Hence, the application is allowed and the applicant is ordered to be released on bail in connection with F.I.R. registered at I-C.R.No.11208053211150 of 2021 with Rajkot Taluka Police Station, Rajkot on executing a bond of Rs.10,000/-(Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that the applicant 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] not leave the territory of India without prior permission of the Sessions Judge concerned;

[d] appear before the Investigation Officer concerned, as and when required for investigation purpose and attend the Court concerned regularly.

[e] furnish the present address of residence along with the proof to the I.O. concerned and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of Sessions Court concerned;

The competent authority will release the applicant only if the applicant 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 take appropriate action in the matter. Bail bond to be executed before the lower court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.

Rule made absolute to the aforesaid extent.

Direct service is permitted.