Delhi High Court
Nakul Dev Gupta vs State & Ors on 27 March, 2012
Author: Suresh Kait
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1074/2012
% Judgment delivered on: 27th March, 2012
NAKUL DEV GUPTA ..... Petitioner
Through: Mr. Suryakant Singhla, Adv.
versus
STATE & ORS ..... Respondent
Through: Mr. Navin Sharma, APP.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
CRL. M.A. 3808/2012 (Exemption)
Exemption is allowed subject to just exceptions.
Criminal M.A. stands disposed of.
+ CRL. M.C. 1074/2012
1 Notice issued.
2 Learned APP accepts notice on behalf of State/R1.
3 Ld. counsel Mr. Sanjeev Ailawadi, Advocate accepts notice on behalf
of respondents No. 2 to 4.
4 With the consent of the learned counsels for the parties, the instant
petition is taken up for final disposal.
5 Learned counsel for the petitioner submits that vide the instant
petition, the petitioner has sought quashing of FIR No. 30/2012 dated
08.02.2012 registered at P.S. Bharat Nagar, Delhi for the offences
punishable under Sections 304/34 Indian Penal Code, 1860 against the
petitioners on the complaint of respondent No.3/Mr. Rahul.
6 The unfortunate incident took place on 08.02.2012. Petitioner resides
at Flat No. 12, SFS Flats, Ashok Vihar, Phase IV, Delhi which happens to be
the top floor. Sh. Ravinder Nath Malhotra (deceased) and his family living
on the first floor in Flat No. 4 of the same building. The overhead water
tanks of the entire building are located on the roof above the flat of the
petitioner.
7 On 08.02.2012, an altercation took place between the petitioner and
deceased Ravinder Nath Malhotra‟s family with regard to the replacement of
water pipe as laid on the roof above the flat of the petitioner. Deceased
Ravinder Nath Malhotra, who was a heart patient and had undergone bypass
surgery once, suffered a massive heart attack while on the roof of that day.
He was immediately taken to the hospital but unfortunately was declared
brought dead.
8 Learned counsel for the petitioner further submits that the deceased
died a natural death on account of heart attack for which the petitioner
cannot be held responsible. Since the deceased was suffering from heart
ailment for which he had been operated upon on earlier occasions, therefore,
his death only become the co-incidence.
9 Further submits that post mortem was conducted on the body of
deceased which revealed no signs of any internal or external injury on the
body of deceased. On the post mortem being conducted, it was revealed that
deceased was a heart patient and had 100% blockage in his right coronary.
Besides this, three metallic sutures were also found on the left side of the
sternum. Since deceased was suffering from heart disease and had
undergone bypass surgery, therefore he had died due to massive heart attack,
therefore, the petitioner cannot be held liable for his death.
10 Ld. counsel refers to Post Mortem being conducted on the body of the
deceased. Relevant parts of the Post Mortem report is being reproduced
here:-
External Injuries : No external injuries on the body
except old healed surgical scar marks on the left side of
sternum, inner aspect of left leg and inguinal area, right
side.
Internal Examination
1 Neck : Soft Tissues
f) Any Foreign Body in Trachea/Its Divisions : Three
Mettalic Sutures pres left side of sternum.
3 Chest : Both lungs congested, edematous, full of frothy
hemorrhagic fluid.
d) Heart : patient, right coronary 100%
blocked.
4 Abdomen & Pelvis
a) Liver & Gallblader : Congested
b) Spleen : Congested
c) Kidneys : Congested
d) Pancreas : Congested
e) Stomach -- Contents - full of food, undigested
about AD
OPINION : Cause of death can only be given after
receipt of the viscera analysis report.
11 Further submits that the deceased was an Advocate by profession and
had undergone by-pass surgery of heart in 1994. Even as per Post Mortem
report, right coronary was 100% blocked. There were no marks of external
injuries on the body of deceased.
12 Ld. counsel further submits that in the circumstances, otherwise also
the petitioner could not be booked under Section 304 of Indian Penal Code,
1860.
13 Be that as it may, Respondents No.2 to 4 are present in person, who
are wife and two sons respectively of the deceased.
14 It is submitted that the petitioner has already compensated to
respondent No.2, who is widow of deceased, by paying Rs. 4 Lacs as she has
no source of income. Respondents No.3 and 4 has also joined their mother
while reaching at an amicable compromise.
15 Ld. APP on the other hand submits that the parties has reached an
amicable compromise and the matter has already been settled between them,
but Section 304 of Indian Penal Code, 1860 is non-compoundable in nature.
16 Learned APP referred the decision of Hon‟ble Supreme Court in Gian
Singh v. State of Punjab & Anr. in SLP (Crl.) No.8989/2010 wherein the
Division Bench of the Supreme Court has referred three earlier decisions
viz, B.S. Joshi v. State of Haryana (2003) 4 SCC 675, Nikhil Merchant v.
Central Bureau of Investigation & Anr. (2008) 9 SCC 677 & Manoj
Sharma v. State & Ors. (2008) 16 SCC 1 to the larger Bench for re-
consideration whether the abovesaid three decisions were decided correctly
or not. Therefore, she has prayed that till the matter is decided by the larger
Bench of the Apex Court, instant petition may be adjourned sine-die.
Alternatively, she prayed that in the event, the FIR is quashed, heavy costs
should be imposed upon the petitioners, as the government machinery has
been pressed into and precious public time has been consumed.
17 The Division Bench of Mumbai High Court in Nari Motiram Hira v.
Avinash Balkrishnan & Anr. in Crl.W.P.No.995/2010 decided on
03.02.2011 has permitted for compounding of the offences of „non-
compoundable‟ category as per Section 320 Cr. P.C. even after discussing
Gian Singh (supra).
18 Therefore, I feel that unless and until, the decisions which have been
referred above, are set aside or altered, by the larger Bench of the Supreme
Court, all the above three decision hold the field and are the binding
precedents.
19 In addition, the Supreme Court in Shiji @ Pappu & Ors. v. Radhika
& Anr in Crl.Appeal No.2064/2011 decided on 14.11.2011 that the cases of
non-compoundable nature can be compounded, certainly not after the
conviction observing as under:-
„...... That being so, continuance of the prosecution
where the complainant is not ready to support the
allegations which are now described by her as arising
out of some "misunderstanding and misconception";
will be a futile exercise that will serve no purpose. It is
noteworthy that the two alleged eye witnesses, who are
closely related to the complainant, are also no longer
supportive of the prosecution version. The continuance
of the proceedings is thus nothing but an empty
formality. Section 482 Cr.P.C. could, in such
circumstances, be justifiably invoked by the High
Court to prevent abuse of the process of law and
thereby preventing a wasteful exercise by the Courts
below.‟
20 Learned APP further submits that if this court is inclined to quash the
FIR in the present case, then the compensation given to the respondent No.2
may be enhanced as the deceased was an Advocate from profession and was
61 years old only. He was expected to live 15-20 years more according to
average living age.
21 I find force in the submission of learned APP for State on
compensation.
22 At this stage, learned counsel upon instruction from petitioner has
come forward and submits that the petitioner has offered to pay Rs.3lacs
more as compensation to respondent No.2 in addition to already given as
mentioned above.
23 I appreciate this gesture of petitioner.
24 Accordingly, petitioner is directed to pay additional Rs.3lacs as
compensation to respondent No.2 within two weeks from today. Proof of the
same shall be placed on record.
25 Further, respondent No.2 is directed to keep this additional
compensated amount in form of FDR, initially for a period of 05years and be
renewed thereafter periodically. Interest accrued thereupon can be
withdrawn by respondent No.2, if required.
26 In case of financial constraint, she can withdraw maximum amount of
Rs.25,000/- in a year from the said FDR amount.
27 Keeping in view the above discussion, statement of respondents into
view and in the interest of justice, I quash FIR No. 30/2012 registered at P.S.
Bharat Nagar, Delhi.
28 Criminal M.C. 1074/2012 is disposed of on above terms.
29 Dasti.
SURESH KAIT, J
MARCH 27, 2012
j/jg
