Prafulla S/O. Narendra Deshmukh ... vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 7711 Bom

 2909APL573.17-Judgment                                                                         1/5


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.


            CRIMINAL APPLICATION (APL)  NO.  573   OF   2017


 APPLICANTS :-                  01. Prafulla   S/o.   Narendra   Deshmukh,   aged
                                    about   34   years,   Occ:   Busines,   R/o   14A,
                                    Shrikrishna   Residency,   Khare   Town,
                                    Dharampeth, Nagpur. 

                                02. Ravishankar   s/o.   Bholaram   Rahangdale,
                                    aged about 30 years, Occ: Service, R/o. Near
                                    Khel   Bhavan,   Railway   Quarter   No.177/2,
                                    Motibagh, Nagpur. 

                                03. Suresh s/o. Shobelal Maraskhole, aged about
                                    48   years,   Occ:  Contractor,   R/o   Plot   No.33,
                                    Wardha Vihar, Panchadeep Nagar, Nagpur.  


                                         ...VERSUS... 


 NON-APPLICANT :-                     State of Maharashtra, through Police Station
                                      Officer, Sitabuldi Police Station, Nagpur. 



 ---------------------------------------------------------------------------------------------------
                           Mr.Anil Mardikar, sr.counsel with 
                       Mr.S.G.Joshi, counsel for the applicants.
   Mr.S.S.Doifode, Additional Public Prosecutors for the non-applicant. 
 ---------------------------------------------------------------------------------------------------



                                        CORAM : SMT. VASANTI    A    NAIK & 
                                                    M. G. GIRATKAR
                                                                   ,   JJ.

DATED : 29.09.2017

2909APL573.17-Judgment 2/5

O R A L J U D G M E N T (Per : Smt.Vasanti A Naik, J.)

The criminal application is admitted and heard finally at

the stage of admission with the consent of the learned counsel for the

parties.

2. By this criminal application, the applicants have sought

the quashing and setting aside of the first information report registered

against them for the offences punishable under sections 304 and 304-A

read with section 34 of the Penal Code.

3. As per the non-applicant, between 18.07.2017 and

19/07/2017 a woman named Kisaniya, who was staying at the

construction site on which construction was in progress, died due to the

drowning in the water that was accumulated in the basement of the

construction site. After the information about the accident was received

by the non-applicant, the matter was sought to be investigated. An

offence was registered against the applicant Nos.2 and 3 under section

304-A of the Penal Code. However, after investigating the matter

further, the offence was registered against all the three applicants under

sections 304 and 304-A of the Penal Code. The applicants have sought

the quashing and setting aside of the first information report.

2909APL573.17-Judgment 3/5

4. Shri Mardikar, the learned senior counsel appearing for

the applicants, submitted that the applicants would not press for the

quashing and setting aside of the first information report under section

304-A of the Penal Code at this stage and would take recourse to the

appropriate proceedings at an appropriate stage. It is submitted that

since the offence under section 304 of the Penal Code could not have

been registered against the applicants, even if the allegations in the first

information report are accepted at their face value, in the totality, the

applicants have sought for the quashing and setting aside of the first

information report insofar as the offence under section 304 of the Penal

Code is concerned. It is stated that a similar matter came up for

consideration before this court in Criminal Application (APL) No.207 of

2017 (Yogesh s/o Ramniwas Mandhani v. The State of Maharashtra) and

this court has, by the judgment dated 25/09/2017, quashed and set

aside the first information report registered against the applicants, who

were running the manufacture and sale unit. It is submitted that for the

reasons recorded in the said judgment, the first information report

registered against the applicants under section 304 of the Penal Code

needs to be quashed and set aside. It is submitted that it cannot be said

by any stretch of imagination on the basis of the allegations made in the

first information report registered against the applicants that an offence

of culpable homicide not amounting to murder could be prima facie

2909APL573.17-Judgment 4/5

made out against them so as to register the offence under section 304 of

the Penal Code.

5. Shri Doifode, the learned Additional Public Prosecutor

appearing for the non-applicant, does not dispute the position of law, as

laid down in the judgment dated 25/09/2017 in Criminal Application

(APL) 207 of 2017. It is stated that an offence under section 304-A of

the Penal Code could be surely made out against the applicants on the

basis of the allegations that are made in the first information report. It

is stated that an appropriate order may be passed in the circumstances

of the case.

6. On a reading of the first information report, it appears that

even if the allegations made in the same are accepted at their face

value, an offence of culpable homicide not amounting to murder cannot

be made out against the applicants. It is only alleged in the first

information report that the applicants are responsible for the death of

Kisaniya as the applicants had not taken appropriate safety measures for

ensuring that there should no water logging in the basement and pits.

On a reading of the provisions of sections 299, 300 and 304 of the Penal

Code, it appears that the offence punishable under section 304 of the

Penal Code could not have been registered against the applicants. It is

2909APL573.17-Judgment 5/5

held by the Hon'ble Supreme Court in the judgment in the case of State

of Haryana v. Bhajan Lal reported in (1992) SCC (Cri) 426 that the

allegations in the first information report, if accepted at their face value,

do not prima facie make out an offence registered against the accused,

the first information report registered against the accused is liable to be

quashed and set aside, as permitting the continuation of the

proceedings in such a case would result in the abuse of the process of

the court. We find that the case in hand is similar to the case involved

in Criminal Application (APL) No.207 of 2017.

7. Hence, for the reasons recorded herein above and also for

the reasons recorded in the judgment, dated 25/09/2017 in Criminal

Application (APL) No.207 of 2017, the criminal application is partly

allowed. The first information report registered against the applicants

for the offence punishable under section 304 of the Penal Code is

hereby quashed and set aside. Order accordingly.

                        JUDGE                                                   JUDGE 




 KHUNTE