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2011 Supreme(Guj) 7
2011 (1) GCD 372 (Guj)
Hon’ble Mr. Justice Akil Kureshi
Prafulbhai J. Vaghela & Anr.
Versus
Pankaj Srikrishnakumar Saxena, Gruhpati & Ors.
Criminal Misc.Application No. 564 of 20101—Decided on 10/01/20112
Appearance :
Mr. Subramaniam Iyer, for the Applicant No. 1 – 2. (CR.MA No. 564/2010)
Mr. S.B. Vakil, with Mr. C.B. Gupta, for the Respondent No. 1 – 7. (Cr. M.A. No. 13519/2009 & SCR A No. 770/2009).
Mr. P.K. Jani, GP, for the Respondent No. 8.
Mr. Y.N. Ravani, for the Respondents No. 9 - 10.
Point in Issue :
Whether in the facts FIR for offence under Section 304 read with Section 114 IPC is sustainable.
Headnote:Head Note :
[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 304-A, 364 read with Sections 34 and 114 — Juvenile Justice (Care and Protection of Children) Act, 2000 (Central Act 56 of 2000) — Section 23 — Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sections 16 and 482 — FIR for offences under Section 304 read with Section 114 IPC and under Section 23 of Juvenile Act — Quashing of — Scope — Finding as to — Allegations in the FIR and materials collected during investigation at best amount to negligent, lethargic irresponsible behaviour on the part of accused — These may be acts and omissions which may have resulted into ultimate death of two young boys, but there are no allegations made or material found out disclosing offence of culpable homicide — For offence under Section 304 of the Code it is necessary that death should have been caused by doing an act with intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with knowledge that accused is likely by such act to cause death — In absence of these factor FIR for offence under Section 304 of the Code can not be maintained — But this is not to suggest that no case of accidental death due to negligence can be made out — For the reasons complaint so far for offence under Section 304 IPC is quashed while investigation for offence under Section 304-A IPC and for offence under Section 23 of Juvenile Act is permitted.
Held :
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 has resulted into ultimate death of two young boys and may be more care and caution, would has averted such tragic incident. Question is in the complaint is there any allegations disclosing offence of culpable homicide. For such offence it is necessary that death should has 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. [Para 15]
If Court finds that not the offence disclosed in the complaint, but some other offences is 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 is 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. [Para 25]
Law Laid Down :
If the Court finds that offence alleged in the complaint is not made out but some other offence are made out entire complaint need not be quashed.
Case Law Analysis :
Reshma Bano vs. State of Uttar Pradesh & Ors., 2008 AIR SCW 1998 [Para 26].—Relied on
Akil Kureshi, J.—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.
2. 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.
3. 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.
4. 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 student
