Gujarat High Court
Aalamkhan Aasamkhan Sipai vs State Of Gujarat & on 18 December, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/17667/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 17667 of 2015
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AALAMKHAN AASAMKHAN SIPAI....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR VIRAT G POPAT, ADVOCATE for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the RESPONDENT(s) No. 1
DS AFF.NOT FILED (N) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 18/12/2015
ORAL ORDER
1. The respondent No.2-original first informant although served with the notice of rule issued by this Court yet has chosen not to remain present and oppose this application either in person or through an advocate.
2. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused person seeks to invoke the inherent powers of this Court, praying for quashing of the First Information Report being C.R. No. I-376 of 2015 registered with the Naroda Police Station, Ahmbadabad for the offence punishable under Sections 279, 304A of the Indian Penal Code as well as Section 177, 184, 134(B) of the Motor Vehicles Act.
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3. The case of the prosecution in brief is as under:-
3.1. The applicant was driver of Bolero Pickup Van bearing Registration No. GJ7-VV8388. The husband of the first informant sitting in the rear up part of the pickup van. There was a machine placed in the rear part of the pickup van. The said machine was meant for spread pesticides. It is the case of the first informant that at about 4 'O' clock in the evening somewhere near Ranasan Tole Plaza at Naroda, the driver of the vehicle i.e. the applicant herein apply breaks all of a sudden as there was a bump as a result of the jerk, the machine which was kept on the rear portion of the pickup van fell on the deceased resulting in head injuries. 108 Ambulance was called for and he was sifted to the hospital where in the night hours during treatment the husband of the first informant died. According to the first informant, the act of the applicant herein as a driver in applying break all of a sudden as a result of which the machine fell on the deceased amounting to culpable negligence punishable under Section 304(A) of the Indian Penal Code. What is complaint is of a rash and negligence act Mr. Popat, the learned advocate appearing for the petitioner vehemently submitted that even if the entire case of the first informant is accepted as true no case of any rash or negligence act could be said to have been made out.
4. In a prosecution for an offence under Section 304(A) of the Indian Penal Code., the Court has to examine whether the alleged act of the accused is the direct result of a rash and negligent act, and that act was the proximate and efficient cause of death without the intervention of others negligence.Page 2 of 17
HC-NIC Page 2 of 17 Created On Tue Dec 22 01:50:40 IST 2015 R/CR.MA/17667/2015 ORDER To put it in other words, whether the mere fact that the applicant herein had to apply breaks all of a sudden because of a bump on the road by itself is sufficient to establish an offence under Section 304(A) of the Indian Penal Code. The answer to this question will determine whether the applicant's act as alleged by the prosecution as the causa causana or has there been a causa interveniense, which has broken the chain of causans so as to make his act, though and negligent one was not the immediate cause or whether had amounts to an act of gross neglience or reckless negligence conduct.
5. I had an occasion to deal with this question at length. In the case of Girishbhai Maganlal Pandya V. State of Gujarat, Criminal Misc. Application No.2942 of 2014, decided on 23rd March, 2015 I may quote the relevant observations made by this Court in that regard:-
"As to what is meant by causa causans, has been explained by the Supreme Court in the case of Sushil Ansal v. State through Central Bureau of Investigation, (2014)6 SCC 173, as under :
As to what is meant by causa causans we may gainfully refer to Blacks Law Dictionary (Fifth Edition) which defines that expression as under:
Causa causans. - The immediate cause; the last link in the chain of causation. The Advance Law Lexicon edited by Justice Chandrachud, former Chief Justice of India defines Causa causans as follows: Causa causans. - The immediate cause as opposed to a remote cause; the last link in the chain of causation; the real effective cause of damage Page 3 of 17 HC-NIC Page 3 of 17 Created On Tue Dec 22 01:50:40 IST 2015 R/CR.MA/17667/2015 ORDER The expression proximate cause is defined in the 5th Edition of Blacks Law Dictionary as under: Proximate cause. - That which in a natural and continuous sequence unbroken by any efficient, intervening cause, produces injury and without which the result would not have occurred. Wisniewski vs. Great Atlantic & Pacific Tea Company, 226 Pa. Super 574 : 323 A2d 744 (1974), A2d at p. 748. That which is nearest in the order of responsible causation. That which stands next in causation to the effect, not necessarily in time or space but in causal relation. The proximate cause of an injury is the primary or moving cause, or that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the accident could not have happened, if the injury be one which might be reasonably anticipated or foreseen as a natural consequence of the wrongful act. An injury or damage is proximately caused by an act, or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.
I may also refer to the earlier decision of the Supreme Court in Kurban Hussein Mohamedalli Rangawalla Vs. State of Maharashtra, AIR 1965 S.C. 1616. On the interpretation of Section 304-A, holding:
4. We may in this connection refer to Experor V. Omkar Rampratap, 4 Bom LR 679, where Sir Lawrence Jenkins had to interpret S. 304-A and observed as follows:
To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death Page 4 of 17 HC-NIC Page 4 of 17 Created On Tue Dec 22 01:50:40 IST 2015 R/CR.MA/17667/2015 ORDER should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non.
This view has been generally followed by High Courts in India and is in our opinion the right view to take of the meaning of S.304-A. It is not necessary to refer to other decisions, for as we have already said this view has been generally accepted. Therefore, the mere fact that the fire would not have taken place if the appellant had not allowed burners to be put in the same room in which turpentine and varnish were stored, would not be enough to make him liable under S.304-A, for the fire would not have taken place, with the result that seven persons were burnt to death, without the negligence of Hatim. The death in this case was, therefore, in our opinion not directly the result of a rash or negligent act on the part of the appellant and was not the proximate and efficient cause without the intervention of anothers negligence. The appellant must, therefore, be acquitted of the offence under S.304-A. In my view, having regard to the materials on record, the incident in this case cannot be treated as a direct and proximate cause of the negligence, even if I assume one on the part of the applicant herein in not getting the defective bus repaired. Many other factors might have resulted in the unfortunate incident. It was the Driver and the Cleaner who were actually handling the bus. If little care would have been taken by the Cleaner to ensure that no student occupied the seat beneath which there was a cavity, then probably this incident would not have occurred. Therefore, the alleged negligence from the part of the applicant herein cannot be regarded as the causa causans. Although it may be a causa sine qua non.
31. It must be pointed out that rashness and Page 5 of 17 HC-NIC Page 5 of 17 Created On Tue Dec 22 01:50:40 IST 2015 R/CR.MA/17667/2015 ORDER negligence are not the same things. Mere negligence cannot be construed to mean rashness. There are degrees of negligence and rashness and in order to amount to criminal rashness or criminal negligence one must find that the rashness has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences. Criminal negligence is gross and culpable neglect, that is to say, a failure to exercise that care and failure to take that precaution which, having regard to the circumstances, it was the imperative duty of the individual to take. Culpable rashness is acting with consciousness that mischievous consequences are likely to follow although the individual hopes, even though he hopes sincerely, that such consequences may not follow. The criminality lies in not taking the precautions to prevent the happening of the consequences in the hope that they may not happen. The law, in my view, does not permit a man to be un-cautious on a hope however earnest or honest that hope may be.
32. In the case of - 'A. W. Lazarus v. The State', AIR 1953 All 72 (A), a Bench of the Allahabad High Court held, following the decisions in - 'Empress of India v. Idu Beg', 3 All 776 (B) and - 'H.W. Smith v.
Emperor', AIR 1926 Cal 300 (C), that criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. It was pointed out that the criminality in such a case lay in running the risk of doing such an act with recklessness or indifference as to the consequences. The Bench further held that the criminal negligence under Section 304-A, I.P.C. was gross and culpable neglect of failure to exercise that reasonable and proper care and to take precautions to guard against injury either to Page 6 of 17 HC-NIC Page 6 of 17 Created On Tue Dec 22 01:50:40 IST 2015 R/CR.MA/17667/2015 ORDER the public generally or to an individual in particular, which, having regard to all the circumstances attending the charge, it was the imperative duty of the accused person to have adopted. Another important element which goes to make the offence is that the act of the accused must be found to be the immediate cause of the death, that is to say, the act and the death must be 'causa causans'.
33. I may here refer to a very instructive judgment of the House of Lords in - 'Andrews v. Director of Public Prosecutions', 1937-2 All ER 552 (D). In this case Lord Atkin reviewed several of the earlier cases and delivered the leading opinion of the House. Lord Atkin pointed cut that the connotations of 'mens rea' are not helpful in distinguishing between degrees of negligence, nor do the ideas of crimes and punishments in themselves carry a jury much further in deciding whether, in a particular case, the degree of negligence shown is a crime and deserves punishment. According to Lord Atkin, "the principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established."
34. Lord Atkin observed that the most appropriate epithet which can be applied to such cases is "reckless". He further pointed out that "it is difficult to visualise a case of death caused by "reckless" driving, in the connotation of that term in ordinary speech, which would not justify a conviction for manslaughter, but it is probably not all-embracing, for "reckless" suggests an indifference to risk, whereas the accused may have appreciated the risk, and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction."
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35. In an earlier case Lord Ellenborough had pointed out that to substantiate the charge of manslaughter the prisoner must be found to have been guilty of criminal misconduct arising either from the grossest ignorance or the most criminal inattention. Lord Atkin explained this observation of Lord Ellenborough in these words :
"The word "criminal" in any attempt to define a crime is perhaps not the most helpful, but it is plain that Lord Ellenborough meant to indicate to the jury a high degree of negligence."
36. Attention was also drawn by Lord Atkin to a passage in a considered judgment of Lord Hewart, Lord Chief Justice the passage to which attention was drawn was this:
"In a criminal Court, on the contrary, the amount and degree of negligence are the determining questions. There must be 'mens rea'."
But, as was pointed out by Lord Atkin, the connotation of mens rea do not always prove helpful in determining the guilt of an accused in a particular case.
37. The essence of criminal liability under Section 304-A IPC is culpable rashness or negligence and not any rashness or negligence. The difference between the two is what marks off a civil from a criminal liability. The distinction is often an intricate matter and depends on the particular time, place and circumstances. In civil law negligence means inadvertence, which, if it resulted in injurious consequences to person or property, may involve liability to compensate for the damage. In Halsbury's Laws of England, 3rd Edn. Vol. 28, paragraph 1, it is stated :
''Negligence is a specific tort and in any given circumstances is the failure to exercise that care with which the circumstances demand. What amounts to negligence depends on the facts of each particular case and the categories of negligence are never closed. It may consist in Page 8 of 17 HC-NIC Page 8 of 17 Created On Tue Dec 22 01:50:40 IST 2015 R/CR.MA/17667/2015 ORDER omitting to do something which ought to be done or in doing something which ought to be done, either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the accompanying circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury."
38. The consequence flows from a state of mind which is blank or devoid of any advertence, and the liability for such consequence is to be judged from the standpoint of reasonable foreseeability and the failure to exercise the care which such foreseeability necessarily implies. That I conceive to be the principle of tortious liability for negligence. Kenny in his "Outlines of Criminal Law'' at page 29 observes, "But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence. The word 'negligence', therefore, in our jurisprudence is used to denote blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury, who may sue him in tort for damages. But it should now be recognised that at common law there is no criminal liability for harm thus caused by inadvertence.................The truth may be that he did not foresee the consequences as a reasonable man would have done, and that he was negligent in the true sense of the word, and therefore civilly, although not criminally, liable."
39. Kenny further points out that for criminal Page 9 of 17 HC-NIC Page 9 of 17 Created On Tue Dec 22 01:50:40 IST 2015 R/CR.MA/17667/2015 ORDER liability for negligence, there must be something more than such blameworthy inadvertence. This aspect is also adverted to in paragraph 1374 of Halsbury's Laws of England, 3rd Edn. Volume 10, "A higher degree of negligence is necessary to render a person guilty of manslaughter than to establish civil liability against him. Mere carelessness is not enough. Negligence in order to render a person guilty of manslaughter must be more than a matter of compensation between subjects; it must show such disregard for the life and safety of others as to amount to a crime against the State. Whether negligence is to be regarded as of such a nature is a question for the jury, after they have been properly directed by the Judge as to the standard to be applied, and depends on the facts of the particular case. The number of persons affected by a single act of negligence does not affect the decree of negligence."
40. While on this aspect, it is also instructive to refer to two English cases. Rex v. Williamson, 1807-3 C and P 635, was a case where a man who practised as an accoucheur, owing to a mistake in his observation of the actual symptoms, inflicted on a patient terrible injuries from which she died. After pointing out that in a civil case once negligence was proved, the degree of negligence was irrelevant, Lord Ellenborough, the Lord Chief Justice, said.
"In a criminal court, on the contrary, the amount and degree of negligence are the determining questions. There must be mens rea........ In explaining to juries the test which they should apply to determine whether the negligence in a particular case, amounted or did not amount to a crime, Judges have used epithets such as 'culpable', 'criminal', 'gross', 'wicked', 'clear', 'complete'. But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of Page 10 of 17 HC-NIC Page 10 of 17 Created On Tue Dec 22 01:50:40 IST 2015 R/CR.MA/17667/2015 ORDER the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against the State and conduct deserving punishment."
41. Mere negligence or rashness is, therefore, not enough to bring a case within the ambit of Section 304A I. P. C. Negligence or rashness proved by evidence must be such as should necessarily carry with it a criminal liability. Whether such liability is present may depend on the degree of culpability having regard in each case to the particular time, place and circumstances. If it is merely a case of compensation or reparation for injury or damage caused to a person or property, it is clearly not punishable under either of the sections. The culpability to be criminal should be such as concerns not merely the person injured or property damaged but the safety of the public on the road. But the nature and extent of the injury or damage will be irrelevant in fixing criminal liability for negligence under the sections.
42. I may quote with profit the case of Ambalal D. Bhatt Vs. State of Gujarat, reported in (1972) 3 SCC 525, wherein the following observations made by the Supreme Court are worth taking note of.
8. The learned Advocate contends that even if one batch number was given to several lots prepared on 12-11-62 as was done in respect of batch no 211105, the evidence discloses that this was not an isolated case but such practice was uniformly followed in S. C. L. Ltd. for which the appellant could not alone be held liable. In the circumstances the non-compliance with the rules for giving a batch number to every lot does not make the act of the appellant the causa causans of the death of the persons who were injected with glucose saline prepared by him because it was not only the duty of the Analyst Prabhakaran to test the material before they are issued to the injection department but also to test the solution Page 11 of 17 HC-NIC Page 11 of 17 Created On Tue Dec 22 01:50:40 IST 2015 R/CR.MA/17667/2015 ORDER in such a way as would trace lead nitrate in the sodium chloride content of the solution. As Prabhakaran had not applied the proper test and that too knowing fully well that several lots were given one batch number, he cannot be absolved of his responsibility to take representative samples for testing them instead of testing only one bottle out of 450 bottles comprising batch no. 211105. On this premise it is contended that though section 304A covers various fields of activity, an offence is committed only if a person charged is shown to have neglected to take such action as he is reasonably expected to take to avoid injury to others and that such reasonable steps that are expected to be taken by him should show that there was a failure to take such elementary steps it was necessary for him to take. Inasmuch as in all cases under section 304A there is a casual chain which consists of many links, it is only that which contributes to the cause of all causes, namely, the causa causans and not causa sine qua non which fixes the capability. In other words, it is submitted that it is not enough for the prosecution to show that the appellant's action was one of the causes of death. It must show that it is the direct consequence, which in this case has not been established. On the other hand, according to the learned Advocate the appellant is separated by two important steps which intervene before the glucose saline is sold for being administered to the needy. These are :
(1) that not only should the materials be tested but the solution should be tested properly to detect the dangerous components of the preparation which was the duty of the Chief Analyst; and (2) that the production report and the analysis report have to be seen by the Production Superintendent who is to satisfy himself that proper tests have been carried out before certifying them for sale. The persons who are directly responsible for the saline solution to be certified for sale are the Chief Analyst as well as the Production Superintendent and not the appellant.
9. It is, however, the case of respondent State Page 12 of 17 HC-NIC Page 12 of 17 Created On Tue Dec 22 01:50:40 IST 2015 R/CR.MA/17667/2015 ORDER that had the appellant not given a single batch number to all the four lots when he prepared the offending glucose saline, the analysis by the Chief Analyst would analysis by the Chief Analyst would have certainly discovered the heavy deposits of lead nitrate in the sodium chloride and the lot which contained this would have been rejected. As the appellant has been negligent in conforming to the rules, the deaths were the direct consequence of that negligence.
10. It appears to us that in a prosecution for an offence under section 304A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. If that were so, the acquittal of the appellant for contravention of the provisions of the Act and the Rules would itself have then examined to what extent additional evidence of his acquittal would have to be allowed, but since that is not the criteria, we have to determine whether the appellant's act in giving only one batch number to all the four lots manufactured on 12-11-62 in preparing batch no. 211105 was the cause of deaths and whether those deaths were a direct consequence of the appellant's act that is, whether the appellant's act is the direct result of a rash and negligent act and that act was the proximate and efficient cause without the intervention of another's negligence.As observed by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap. (1902) 4 Bom LR 679 the act causing the deaths "must be the cause causans; it is not enough that it may have been the causa sine qua non". This view has been adopted by this Court in several decisions. In Kurban Hussein Mohem- medali Rangwala v. State of Maharashtra, 1965-2 SCR 622 = (AIR 1965 SC 1616), the accused who had manufactured wet paints without a licence was acquitted of the charge under section 304A because it was held that the mere fact that he allowed the burners to be used in the same room in which varnish and turpentine were stored, even Page 13 of 17 HC-NIC Page 13 of 17 Created On Tue Dec 22 01:50:40 IST 2015 R/CR.MA/17667/2015 ORDER though it would be a negligent act, would not be enough to make the accused responsible for the fire which broke out. The cause of the fire was not merely the presence of the burners within the room in which varnish and turpentine were stored, though this circumstance was indirectly responsible for the fire which broke out, but was also due to the overflowing of froth out of the barrels. In Suleman Rahiman Mulani v. State of Maharashtra (1968) 2 SCR 515 = (AIR 1968 SC
829) the accused who was driving a car only with a learner's licence without a trainer by his side, had injured a person. It was held that by itself was no sufficient to warrant a conviction under section 304A. It would be different if it can be established as in the case of Balachandra v. State of Maharashtra, (1968) 3 SCR 766 = (AIR 1968 SC 1319) that deaths and injuries caused by the contravention of a prohibition in respect of the substance which are highly dangerous as in the case of explosives in a cracker factory which are considered to be of a highly hazardous and dangerous nature having sensitive composition where even friction or percussion could cause an explosion, that contravention would be the causa causans.
11. Bearing these principles in view, what we have to see is :
(1) whether there was contravention of the rule?
If so, to what extent that contravention by the appellant contributed to the non-discovery of lead nitrate in sodium chloride content of the glucose saline in Batch No. 211105? (2) Whether sodium chloride for which the said solution was prepared was obtained by the appellant from sources other than the Stores of S. C. I. Ltd.? and (3) Whether the method adopted in testing the said batch by Prabhakaran would have, but for the contravention of the rules requiring the giving of one batch number to each lot, detected the presence of lead nitrate when he analysed samples of the offending batch of glucose saline prepared by the accused. The answers to these questions will determine whether the appellant's Page 14 of 17 HC-NIC Page 14 of 17 Created On Tue Dec 22 01:50:40 IST 2015 R/CR.MA/17667/2015 ORDER act is the causa causans or has there been a cause interveniens which has broken the chain of causation so as to make his act, though a negligent one, not the immediate cause or whether it amounts to an act of gross negligence or recklessly negligent conduct. In this context it may be observed that in a case of this nature where as many as 12 persons lost their lives as a result of the parenteral administration of the drug comprised in Batch No. 211105 prepared by the appellant, those deaths however shocking and regrettable they may be, ought not to allow the mind to boggle while appreciating the evidence which must necessarily be free from any such consideration."
43. I may also quote with profit a decision of the Supreme Court in the case of Balwant Singh Vs. State of Punjab, reported in 1994 Supp (2) SCC
67. The following observations of the Supreme Court are worth taking note of.
"8. Then the question would be whether an offence under Sec. 304-A, I.P.C, is made out? The provisions of this Section apply to cases where there is no intention to cause death and no knowledge that the act done in all probabilities will cause death. Therefore this provision is directed at offences outside the range of Ss. 299 and 300, I.P.C. and obviously contemplates those cases into which neither intention nor knowledge enters. The words "not amounting to culpable homicide" in the Section are very significant and it must therefore be understood that intentionally or knowingly inflicted violence directly and wilfully caused is excluded. The Section applies only to such acts which are rash or negligent and are directly the cause of death of another person. In other words, a rash act is primarily an over hasty act as opposed to a deliberate act but done without due care and caution. Then the question whether the conduct of the accused amounted to culpable rashness or negligence depends on the amount of care and circumspection which a prudent and reasonable man would consider it to Page 15 of 17 HC-NIC Page 15 of 17 Created On Tue Dec 22 01:50:40 IST 2015 R/CR.MA/17667/2015 ORDER be sufficient and this depends on the circumstances in each case."
6. If the matter is judged applying the aforesaid principle then in my view no case of any rash or negligent act without the meaning of Section 304(A) of the Indian Penal Code could be said to have been made out.
7. Even otherwise I am told that the matter has been amicably settled between the parties. The respondent No.2- original first informant Sunitaben Wd/o. Shankarji Gajaji Thakor is personally present in the court and she confirms about the settlement. She made a statement that she has no objection if the prosecution is quashed. She has also filed an affidavit in that regard. The affidavit is ordered to be taken on record.
8. In the result, this application is allowed. The First Information Report being C.R. No. I-376/2015 lodged with the Naroda Police Station, Ahmedabad is hereby ordered to be quashed. Rule is made absolute. Direct service is permitted.
9. Once Section 304(A) of the Indian Penal Code goes to other Sections would also fail and would not apply.
(J.B.PARDIWALA, J.)
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Vahid
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