Gujarat High Court
Prafulbhai vs Pankaj on 10 January, 2011
Author: Akil Kureshi
Bench: Akil Kureshi
Gujarat High Court Case Information System
Print
CR.MA/564/2010 20/ 20 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 564 of 2010
In
CRIMINAL
MISC.APPLICATION No. 13519 of 2009
With
SPECIAL
CRIMINAL APPLICATION No. 770 of 2009
With
CRIMINAL
MISC.APPLICATION No. 13519 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
PRAFULBHAI
J VAGHELA & 1 - Applicant(s)
Versus
PANKAJ
SRIKRISHNAKUMAR SAXENA, GRUHPATI & 9 - Respondent(s)
=========================================================
Appearance
:
MR
SUBRAMANIAM IYER for
Applicant(s) : 1 - 2.(CR.MA No. 564/2010)
MR S.B.VAKIL WITH
MR CB GUPTA for Respondent(s) : 1 - 7.(CR.MA NO.13519/2009 &
SCR.A NO. 770/2009)
MR PK JANI, GP for Respondent(s) : 8,
MR YN
RAVANI for Respondent(s) : 9 -
10.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 10/01/2011
CAV
JUDGMENT
The petitioners of Criminal Misc. Application No.13519/2009 are the original accused in FIR bearing C.R. No.13/2009 dated 7.11.2009 registered before Gandhinagar zone police station. They shall in this order be referred to as the petitioners. The incident referred to in the said FIR pertains to unfortunate death of two young inmates who went missing from Gurukul situated at Motera village, in the outskirts of Ahmedabad known as Sant Shri Asaramji Ashram. The petitioners pray for quashing of the said complaint on various grounds.
It is not in dispute that two young boys namely, Dipesh Prafulbhai Vaghela aged 11 years and Abhishek Shanitlal Vaghela aged about 10 years who were cousin brothers were admitted in the said Gurukul on 1.6.2008 in standard 6th and 5th respectively. It is also not in dispute that in the late evening of 3.7.2008, these boys went missing from the school. After lot of efforts to search them, on 5.7.2008 at about 18:30 hours, their dead bodies were found close to Sabarmati river flowing behind the Gurukul Ashram. The mysterious disappearance of these two young boys and their ultimate death received considerable public attention. Long after the said incident, above-mentioned impugned FIR came to be lodged by the detective police inspector CID Crime, Gandhinagar on 7.11.2009 alleging offences punishable under Sections 304 read with Section 114 of the IPC as well as Section 23 of Juvenile Justice(Care and Protection) Act, 2000 against the petitioners.
Special Criminal Application No.770/2009 has been filed by fathers of the deceased boys praying for following relief :
"5(A) Directing the respondent no.2 to register offence and to carry out investigation into the incident of mysterious death of two children namely Dipesh and Abhishek on 5-7-2008 at the Gurukul Ashram of respondent no.3 and take all penal actions against the offenders in accordance with law."
They are also the applicants of Criminal Misc. Application No.564/2010 in which prayer made is to permit them to be joined as respondents in the quashing petition filed by the original accused.
On 4.12.2009, when the petition for quashing i.e. Criminal Misc. Application No. 13519/2009 came up for hearing, petition was admitted granting stay against further investigation by making following observations :
"1. Petitioners are shown as accused in criminal complaint bearing No.13/2009 dated 07.11.2009 filed before Gandhinagar Police Station, alleging offences punishable under Section 304 read with Sections 34 and 114 of Indian Penal Code as well as Section 23 of the Juvenile Justice (Care and Protection) Act, 2000.
2. Complaint is with respect to unfortunate death of two young inmates aged about 10 to 11 years in Sant Shri Asharamji Ashram, Gurukul, Motera on 3rd July, 2008. These two boys Dipesh and Abhishek were students of standard 6 and 5 respectively in the said Gurukul. They went missing from their hostel on the night of 3rd July, 2008. Their dead bodies were found from the river-bed nearby, at about 6.30 in the evening on 5th July, 2008. This unfortunate incident has received considerable public attention through media, print as well as electronic.
3. Amidst allegations and counter allegations from parents of the unfortunate children and the authorities of the School, after long gap of time, present FIR came to be filed on 07.11.2009, which the petitioners want quashed, in the present proceedings.
4. I have perused the complaint and re-read it with the assistance of learned APP. Pursuant to the said complaint, some investigation has already been carried out by the police and statements of various witnesses recorded. I have briefly perused such statements also. I have also been shown the post-mortem reports and the report of the Lie Detection Tests, both of which were available before filing of the complaint.
5. In sum and substance, the complaint suggests that the accused had the responsibility of safety of the students including the deceased boys, that timely search was not undertaken and if proper search had been taken timely, unfortunate deaths could have been avoided. It is also alleged that passage behind the Gurukul leading to the river was kept open leading to possibility of such accidents, it is also alleged that some of the accused had suggested/carried out black magic to search out the missing boys.
6. Prima facie I have my serious doubt whether such allegations would constitute offence punishable under Section 304 of IPC. The statements recorded and the materials collected before and after filing of the complaint also prima facie furthers the allegations only in the direction as disclosed in the complaint, relevant elements of which I have noted hereinabove.
7. At this stage, it would not be appropriate to make any further observations except to call upon the State to explain the entire issue in detail including whether looking to the sensitive nature of incident, there is an attempt to somehow file a complaint leaving it for the Court to later take corrective measures.
8. Rule returnable on 12th January, 2010. Ad-interim relief in terms of para 11(c) till then."
This is a peculiar case where FIR is not lodged immediately upon happening of the incident raising suspicion of involvement of accused in commission of offences alleged. It is a case where FIR is lodged more than a year after the incident during which time police had sufficient opportunity and occasion to inquire into various details revolving around the incident. From the perusal of the complaint itself, reference to the contents whereof shall be made shortly hereafter, it becomes clear that after detailed inquiry, FIR has been lodged involving the present petitioners in the said offence of culpable homicide not amounting to murder under Section 304 of IPC besides Section 23 of Juvenile Justice(Care and Protection) Act, 2000.
In addition to the said preliminary inquiry carried out by the police between 7.11.2009 when the FIR was registered and 4.12.2009 when this Court granted stay against further investigation, investigating agency also got nearly four weeks time to formally investigate into the offence registered against the petitioners in the said FIR.
While hearing this quashing petition therefore, I have perused not only the impugned FIR and allegations made therein, but also materials gathered by the respondents before filing of the FIR, as also the evidence collected after registering the FIR to satisfy myself whether any case for offence punishable under Section 304 of the IPC has been made out.
Appearing for the petitioners, learned senior counsel Shri S.B. Vakil vehemently contended that a bare perusal of the FIR would establish that no case under Section 304 of the IPC is disclosed. Ingredients of the said offence are not satisfied. Registering FIR for said offence was therefore, illegal. Any investigation carried out pursuant to such a FIR would also be illegal. He further submitted that even through such unauthorised investigation also, no further evidence has come on record to establish offence punishable under section 304 of IPC against any of the accused.
8.1 He relied on the following decisions in support of his contentions :
1) S.N. Sharma v. Bipen Kumar Tiwari and others reported in 1970(1) Supreme Court Cases 653.
2) State of West Bengal and others v. Sanchaita Investments and others reported in AIR 1982 Supreme Court 949.
3) State of Haryana and others v. Bhajanlal and others reported in 1992 Supp(1) Supreme Court Cases 335
4) State of West Bengal and others v. Sampat Lal and others reported in (1985) 1 Supreme Court Cases 317.
5) Tapinder Singh v. State of Punjab and another reported in AIR 1970 Supreme Court 1566.
6) Sham alias Raju R. Anpur and others v. State of Maharashtra reported in 1997 Cri. L.J. 581.
7) Giridhari Lal Kanak v. State and others reported in 2002 Cri. L.J. 2113.
On the other hand, learned GP Shri Prakash Jani appeared for respondents and submitted that no case for quashing is made out. Two young students died under unfortunate circumstances. The petitioners who were in-charge of Sant Shri Asaramji Ashram and who were required to take proper care of the safety of the inmates, did not discharge their duties. He further, submitted that investigation is still incomplete. Some early evidence has been collected against the petitioners. Full investigation should be permitted, only upon which full facts can be ascertained. He relied on the following decisions :
1) State of West Bengal and others v. Sampat Lal and others reported in (1985) 1 Supreme Court Cases 317.
2) State of Haryana and others v. Bhajanlal and others reported in 1992 Supp(1) Supreme Court Cases 335.
3) S.M. Datta v. State of Gujarat and anr. reported in 2001(3) GLH 221.
4) State of Orrisa and another v. Saroj Kumar Sahoo reported in (2005) 13 Supreme Court Cases 540.
5) State of Karnataka & anr. v. Pastor P. Raju reported in AIR 2006 Supreme Court 2825.
6) Sanapareddy Maheedhar Seshagiri & anr. v. State of Andhra Pradesh & anr.
reported in AIR 2008 Supreme Court 787.
7) Swaran Singh and others v. Sate through Standing Counsel and another reported in (2008) 8 Supreme Court Cases 435.
9.1 Learned GP made available for my perusal all the documents at the command of the investigating agency including in particular, the statements of different witnesses recorded by IO after registration of FIR. He also referred to the efforts made by the Investigating Agency to ascertain the cause of death, different medical certificates and opinions. He also relied on the report of the lie detection test of the accused.
Before adverting to the material collected by the investigating agency, it would be useful to take note of the contents of the impugned FIR at some length.
In the complaint in question, it is alleged that the incident took place on 3.7.2008. After initial inquiry by Sabarmati police station, inquiry was handed over to CID Crimes. On 22.7.2008, Dipesh and Abhishek were admitted in the said Gurukul in 6th and 5th standards respectively. They had joined the Boarding school on 1.6.2008 for the term which was to begin on 9.6.2008. On 3.7.2008 both the children had gone to the dinning hall for dinner at 8 O' clock in the evening . Till about 8:30, they did not return to the Gurukul. Watchman Naresh Daangar took the presence. He found these two brothers missing. He informed about it to the rector Shri Pankaj Saxena. At 9:30 at night, Pankaj Saxena spoke to Prafulbhai(father of Dipesh) on telephone and inquired whether boys had come home, who answered in negative. Prafulbhai along with his elder brother Shantibhai immediately rushed to the Gurukul and gathered information from the rector Pankaj Saxena. They thereafter, along with Vikas Khemka, Minketan Patra and Yogesh Bhati and other Sadhaks looked for boys in Gurukul till about 12:30 at night. Pankaj Saxena told them that boys must have gone to sleep somewhere. They would look for them tomorrow. If proper inquires had been made, it could have been confirmed that boys were not in the Ashram and search also could have been conducted outside the Ashram. Sabarmati river flows near the Ashram. Search therefore, should have been made there which was not done by the administrators of the Ashram. Thus, if immediately after the boys were reported to be missing, after verifying that they were not in Ashram, if proper inquiry had been made, since the river flows next to Ashram, perhaps these boys could have been found alive. It is further alleged that on 4.7.2008 in the morning when the fathers of both boys came to Ashram and urged the authorities to lodge a complaint with Chandkheda police station, they were told to wait for sometime longer. Thereafter, PSI Pandya was contacted at Chandkheda police station who advised them to make public announcement. However, Vikas Khemka of Yog Vedant Committee, rector Pankaj Saxena and Miniketan Patra to avoid lodging of the complaint, had wasted time and along with fathers of the boys had come back to Ashram. Thus by not lodging the complaint immediately delayed the investigation. On 4.7.2008, none of the inmates of the Ashram accompanied the fathers of the children to the police station for lodging the complaint. Vikash Khemka advised them to soak the clothes of the boys and thereafter, to hang them for drying and said that as clothes go on drying, boys would return within three or four days. He also advised them to throw pebbles in hot water. Thus knowing fully well that such tricks would not ensure return of the children, efforts were made to delay lodging of the police complaint. Eventually fathers of boys lodged complaint before Chandkheda police station regarding their missing sons. There was delay of nearly 24 hours in lodging such a complaint. On 5.7.2008, fathers of the boys had again went to the Ashram. Sadhak Yogesh Bhati had gone towards Adalaj to look for the boys. At that time also, he had stated that he could see the boys far away in a garden. By such stories, fathers of boys were misled. Dead bodies of the missing boys were found on 5.7.2008, at 18:30 hours near the Sabarmati river, behind the Ashram. Thus though there were large number of inmates, employees and administrators in Ashram, sufficient efforts were not made to look for the boys. If proper inquires were made on the very day, dead bodies of the boys could have been found. Knowing fully well that Sabarmati flows near the Ashram and from three different ways, it is possible to reach the river, no proper search was carried out around the river bed. On the contrary, fathers of the boys were misled. If sufficient and careful search was made, perhaps the boys could have been found alive since in the postmortem report, it is opined that boys had died some three to four hours after they disappeared. Thus the administrators of the Ashram have acted in an irresponsible manner. It is further alleged that if the Sadhaks of Ashram had visited the river bed, they would have spotted the dead bodies and bodies could have been recovered before they decomposed enabling proper postmortem and ascertainment of cause of death. However, accused with mala fide intention wasted time thereby ensuring indirect destruction of evidence. It is further alleged that though accused knew that it is possible to reach river from behind the Ashram, proper search was not made. If the gate leading to the river was locked and if proper security was kept, the incident could perhaps have been avoided. Thus accused acted in such negligent manner. If proper inquires had been made, perhaps boys could have been found alive. Accused have thus committed culpable homicide. It is further alleged that accused were managing the Gurukul. They were responsible for security of the students. They have failed in ensuring their safety. They have thus committed offence also punishable under Section 23 of the Juvenile Justice (Care and Protection) Act, 2000.
As noted earlier, FIR has been lodged after more than a year of the incident. CID Crimes thus had more than sufficient time to conduct inquiry and gather material. It is not the case where FIR has been lodged immediately upon happening of the incident on the basis of some suspicion. Despite such availability of time and collection of material, all that the FIR alleges is that proper care was not taken to ensure safety of the children of the Ashram. Gate leading to the Sabarmati river flowing near Ashram was not locked or guarded thereby enabling the children to wonder towards the river. It is also stated that proper search was not conducted within the Ashram to ascertain whether boys are in the Ashram or not. This should have been ascertained without any loss of time. Had it been done, it would have come to the light of the administrators of the Ashram that boys were not inside. Proper search could have been therefore, immediately directed towards the riverbed. If this was done in time, perhaps boys could have been found alive. Other limb of allegation is that accused delayed lodging of the complaint with the police and also indulged in some sought of "tantrik vidya" to pacify fathers of the children that boys would return safely. Accused deliberately delayed informing police and prevented relatives of the boys from doing the same. In the nutshell, all the averments in the complaint point to allegations that :
1) Proper care was not taken to guard the gate leading to the river.
2) Prompt and thorough search was not made in the Ashram which would have established that boys were not inside the Ashram and search could have been immediately directed to the river bed.
3) If prompt steps were taken to look for boys around the river, perhaps they could have been found alive.
4) Accused not only delayed the search, delayed lodging of the police complaint and also took help of some hocus-pocus black magic to pacify the parents. If the authorities were informed promptly, at-least the dead bodies of the boys could have been recovered before de-composition which would lead to ascertaining the cause of death.
5) At several places in FIR it is alleged that if sufficient care was taken, if proper search was carried out, if sufficient inquires were made, perhaps boys could have been found alive.
Entire tenor of the complaint thus is that on account of alleged lethargy, negligence and irresponsible behaviour on part of the accused, death of two boys could not be averted.
As per the complainant, gate leading to the river from Ashram should either have been locked or guarded. This was not done. Upon being reported that boys are missing, sufficient search was not carried out in the Ashram to ascertain that they were not inside the Ashram premises. If proper, thorough and timely search was carried out, perhaps boys could have been found alive. At one place, it is suggested that if the dead bodies were found in time, postmortem could have been conducted without the bodies being decomposed and cause of death could have been properly ascertained. Nowhere in the complaint it is alleged that accused caused deaths of the boys. Nowhere in the complaint it is alleged that the accused had either intention or knowledge that such acts or omission would lead to death of these boys. Section 304 of the IPC provides for punishment for offence of culpable homicide not amounting to murder. Term "Culpable Homicide" has been defined in Section 299 of the IPC as under :
"299.
Culpable Homicide. -Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
Allegations in the FIR at best amount to negligent, lethargic or perhaps irresponsible behaviour on part of the accused. Negligent in not guarding the gate between the Ashram and Sabarmati river bed, particularly, when large number of young students reside there. Lethargic in not carrying out sufficient search of the Ashram. Carelessness of administrators of Ashram in not informing the police immediately or even diverting the attention of the parents of boys by assuring them that they would return safely. These may be deplorable acts. These may be acts and omissions which may have resulted into ultimate death of two young boys and may be more care and caution, would have averted such tragic incident. Question is in the complaint are there any allegations disclosing offence of culpable homicide. For such offence it is necessary that death should have been caused by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that accused is likely by such act to cause death.
FIR nowhere discloses that such acts and omission attributed to the accused were done with the intention of causing death of young boys, or with the intention of causing such bodily injury as are likely to cause death. It does not even disclose that such acts or omissions were committed with the knowledge that accused were likely by such act to cause death.
Thus insofar as FIR is concerned, to my mind ingredients of culpable homicide as defined in Section 299 of the IPC made punishable under Section 304 of the IPC are not made out.
Since pursuant to the said FIR, some early investigation has also been carried out, it would not be possible to quash the complaint only on perusal of the contents of the FIR, ignoring the material, if any, collected by the investigating agency pursuant to such complaint. With the assistance of learned GP, therefore, I have perused in detail the material available with the investigating agency in form of statements recorded during conducting of the inquiry prior to filing of FIR as well as formal statements of witnesses recorded under Section 161 of the Code of Criminal Procedure after registering FIR.
None of the statements of the witnesses or such materials collected by the investigating agency attribute any mens rea on part of the accused. Statements of witnesses further elaborate the manner in which different accused had not taken prompt steps or enough interest in searching out the boys after they were reported missing. There is nothing on record in the investigation so far carried out to attribute any role to any of the accused of having caused death of these young boys "by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death".
Insofar as first portion of the definition of culpable homicide under Section 299 of the IPC is concerned, same poses no difficulty whatsoever. Neither in the FIR nor the statements of witnesses collected by the investigating agency so far, there is any iota of allegations or material that the accused committed the acts with intention of causing death or with intention of causing bodily injury which was likely to cause death. Definition of culpable homicide contained in Section 299 of IPC however, also brings within its fold not only acts done intentionally but with requisite knowledge that by doing such act, person is likely to cause death. As noted here-in-above, I have ruled out the element of intention on part of the accused in causing death or such bodily injury as is likely to cause death. Question therefore, is can it be stated that the accused ought to have the knowledge that their actions are likely to cause death.
In this regard, if we peruse the complaint and the materials collected by the investigating agency closely, it is alleged against the accused that after the boys were reported to be missing proper inquiries were not made, the area around the river was not searched, lodging of police complaint was delayed, if sufficient and careful search was made promptly perhaps the boys could have been found alive since postmortem report suggested that boys died some three to four hours after they disappeared. In fact, the FIR suggests that if bodies would have been recovered before decomposition, it would have enabled proper postmortem and ascertainment of cause of death. It may be noted that despite repeated efforts, medical opinion on the cause of death has remained inconclusive. For example, in the postmortem report dated 30.7.2008 from the department of Forensic Medicine , B.J. Medical College, Ahmedabad with respect to cause of death of Dipesh following opinion was expressed :
"OPINION Body is in stage of decomposition and mutilation No ante mortem injury is detected over available parts of body.
Toxicology report shows "No chemical poison detected"
FSL report shows "Presence of diatoms could not detected".
Considering above FSL report and postmortem findings possibility of death due to drowning cannot be ruled out, however, "no definite opinion regarding cause of death can be given."
In connection with the said report, Detective Police Inspector, CID Crimes, Ahmedabad addressed letter dated 31.7.2008 to the concerned Doctors seeking clarification in connection with certain issues arising therein, in particular, clarification was sought with respect to the observations "Possibility of death due to drowning cannot be ruled out." and specific query was raised whether during the postmortem, there were any indications that the boys were murdered. Forensic department replied to the said queries vide letter dated 1.8.2008 favouring possibility of death due to drowning in case of both the boys but eventually concluding :
"But above findings are nonspecific as both the bodies are in stage of decomposition so, they do not confirm the death due to drowning."
"...No definite opinion regarding manner of death can be given in both the cases."
Further queries were raised by the police through letter dated 1.9.2008 which were replied to by the Medical Officer vide communication dated 3.9.2008 stating :
"6. During the postmortem examination of both the bodes there were no such injuries over neck to draw blood, no shaving of scalp hairs seen. In case of abhishek no such injury found over body to take out organs after death for "tantrik vidhi", whereas in case of Dipesh, body was decomposed and mutilated, so no definite opinion regarding the removal of organs after death in form of "tantrik vidhi" can be given."
It appears that further queries were raised by the police department. Dr. Kapesh Shah, Professor, Forensic Medicine department, therefore, sent his opinion dated 29.12.2008. After perusal of previous reports, he reiterated that bodies of boys were in decomposed condition. There were no antimortem injuries found. No chemical poison was traced. Doctors carrying out postmortem had clearly stated that no "tantrik vidya" has been performed. It is not possible to give any definite opinion as to cause of death. However, possibility of boys dying due to drowning cannot be ruled out.
All these factors may attribute a degree of carelessness, negligence, lethargy in safeguarding the inmates of the school or insensitivity towards members of the family of boys, but can knowledge be attributed to these accused that such acts were likely to cause death. In my opinion, answer has to be in the negative. Whole case built up in the FIR and the attending material is of accidental death. I do not see how elements of culpable homicide would be attracted. This is not to suggest that in no case of accidental death due to negligence, Section 304 of the IPC would not be attracted. In a given case if an act leading to death is so negligent that the accused ought to have known that such act is likely to cause death, Section 304 of the IPC may be attracted.
Under the circumstances, I am clearly of the opinion that not only the allegations contained in the FIR but also the materials collected by the investigating agency so far on the basis of such a FIR, do not reveal offence under Section 304 of the IPC against the accused.
Question however, is should FIR be quashed and investigation permanently be restrained. In my opinion, the allegations contained in the FIR would disclose offence punishable under Section 304A of the IPC namely causing death by negligence which is defined under the IPC as follows :
"304A.
Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
All the accused were part of the management of the Ashram. They were responsible for safety and well being of the inmates. Ashram school provides for boarding facility. Extremely young students are housed in such a boarding. The school management and particularly, those in-charge of the boarding facility were thus responsible for the safety of young students residing in the hostel. Admittedly, the school and the hostel are situated in the river bank. The premises are connected to the river through a gate. As per the allegations in the FIR and the investigation carried out, such gate was neither locked nor manned. Possibility of young students, out of curiosity or for playing in the river bed, getting drawn to such area therefore, ought to have been accounted for. As per the allegations even after these boys were reported to be missing, the accused did not show sufficient promptness in searching out the boys. They in fact, according to the allegations, prevented the relatives of the boys from lodging the complaint immediately. Even if such dilatory tactics may not have link with intentionally causing death of the boys and may have been employed in order not to damage the reputation of the school management, nevertheless, may have contributed to the death of the boys. All these factors need to be investigated and looked into by the investigating agency for the purpose of finding out whether any case of causing death by negligent act is made out. It is by now well settled that while exercising powers under section 482 of the Code of Criminal Procedure and examining the request of accused for quashing of the complaint, if Court finds that not the offence disclosed in the complaint, but some other offences are borne out from the allegations in the complaint, entire complaint need not be quashed, however, investigation for offences not disclosed but included in the complaint must be stopped. It is also well established that FIR need not in all cases refer to sections under which offences alleged in the complaint would fall. In my opinion, therefore, though no allegations of offence under section 304 of the IPC are made out in the complaint nor any material collected by the investigating agency, nevertheless, entire complaint is not required to be quashed. Investigation can be permitted for offence under Section 304A of the IPC.
Simultaneously in the FIR offence under Section 23 of Juvenile Justice(Care and Protection) Act, 2000 is also made. This aspect also should be permitted to be investigated. Above observations and conclusions I have reached were on the basis of investigation made so far. While permitting further investigation for offence under section 304A of the IPC, the investigating agency is permitted to file its final report on the basis of evidence that maybe collected once the investigation is over. In this respect, reliance can be placed on the decision of the Apex Court in case of Reshma Bano v. State of Uttar Pradesh & ors. reported in 2008 AIR SCW 1998, wherein the Apex Court made following observations :
"8.
The case at hand falls within the category I of the illustrations given in Bhajan Lal's case(supra). Therefore, we quash the proceedings relatable to FIR NO.316 of 2007 so far as the appellant is concerned. In other words, on the basis of the existing materials the appellant shall not be treated to be accused. It is, however, open to the Investigation Agencies to examine her as a witness. It is, further made clear that we have quashed the proceedings vis-a-vis the appellant only on the basis of the existing material."
In the result, complaint i.e. FIR bearing C.R. No.13/2009 dated 7.11.2009 registered before Gandhinagar zone police station is quashed insofar as it pertains to Section 304 of the IPC qua all the petitioners. However, investigating agency is permitted to carry out further investigation for offence under Section 304A of the IPC and Section 23 of Juvenile Justice(Care and Protection) Act, 2000. These directions are on the basis of material on record so for and will not preclude the investigating agency from filing final report on the basis of total material collected.
Criminal Misc. Application No.13519/2009 is disposed of accordingly. Special Criminal Application No.770/2009 has become infructuous. Disposed of accordingly. In Criminal Misc. Application No.564/2010, advocate of the applicants was heard on the quashing petition without granting request for joining party. Said Application is also disposed of in view of order passed in quashing petition.
(Akil Kureshi,J.) (raghu) Top