No liability under Section 304A IPC exists without established negligence or intent; presence as an SHO solely for law enforcement does not incur personal culpability.

JUDGMENT :

NEENA BANSAL KRISHNA, J.

1. Petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘CrPC’) has been filed on behalf of the Petitioner, Prakash Lal Khera for quashing of the Order dated 26.10.2016, passed by the Court of learned CMM (North West), Rohini, Delhi, who has summoned the Petitioner for the offence under Section 304A of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) in Complaint Case bearing CC No.1594/2001.

2. Briefly stated, Respondent No. 2, Mohd. Iliyas filed a Complaint case bearing CC No. 1594/2001 against the Petitioner and two others, for having committed the offence under Section 304A of the IPC.

3. The basic averments made in the Complaint, were that the Respondent No. 2, Mohd. Iliyas was having his Jhuggi bearing Plot No. 138 WPIA, Delhi where he had been residing with his family since 1981. Aside from his Jhuggi, there were various other jhuggis of others, on the said plot.

4. It was contended that the owner of the plot got the demolition Order dated 27.11.2003 from this Court in respect of 36 Jhuggis only in which the Jhuggi of Respondent No. 2, was not named. Despite that, in the execution of the demolition of the Jhuggis, the Respondents also demolished the Jhuggi of the Complainant without prior Notice and without giving ample time to the family members to vacate it. The request of the Complainant to the Petitioner and others to stop the bulldozer was ignored and on the instructions of the accused persons, Jhuggis were demolished. The seven years old daughter of the Complainant, who was present in the Jhuggi, expired because of the debris which fell on her. Hence, the Complaint under Section 200 of CrPC was filed for taking cognizance of offence under Section 304A IPC against the Petitioner and others. The Complainant in support of his assertions examined himself as CW-3 and also corroborated his evidence by examining CW-1, namely, Mr. Tasleem Ahmad and CW-2, namely, Mr. Ram Avadh, who deposed on similar lines.

5. Learned Metropolitan Magistrate in the impugned Order dated 26.10.2016 observed that the testimony of the Complainant, which was fully corroborated by CW-1 and CW-2, is prima facie established that the Jhuggi of the Complainant was not in the list of Jhuggis which were directed to be demolished by this Court. The Petitioner along with the others, without paying any heed got the Jhuggi demolished, without giving any warning or time for the family members to come out, which led to the demise of his seven years old daughter, who was present in the Jhuggi and thus, summoned the Petitioner under Section 304A IPC.

6. It was also noted that the FIR bearing No. 883/2004 under Section 304A IPC had also been registered at Police Station Ashok Vihar but persistently, Cancellation Report was submitted thrice. On two occasions, the learned Metropolitan Magistrate directed the fresh investigations but the third time while considering this Complaint vide Order dated 26.10.2016, it was observed that no fruitful purpose would be served by directing further investigations as the material evidence would have been lost with passage of time and the FIR was clubbed with the Complaint in which the summoning has been allowed.

7. Aggrieved by the Order of the learned Metropolitan Magistrate, the present Writ Petition has been filed on behalf of Mr. Prakash Lal Khera, SHO, impugning the Order on the ground that Cancellation Reports in the FIR No. 883/2004 registered in regard to the same incident, have already been filed before the learned Metropolitan Magistrate. The Respondent No. 2/Complainant had already filed a Criminal