Sitaben Bhavarlal Darji vs State Of Gujarat
2021 Latest Caselaw 16569 Guj

 R/CR.MA/5012/2014                               CAV JUDGMENT DATED: 22/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC. APPLICATION NO. 5012 of 2014



FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI

================================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

================================================================ SITABEN BHAVARLAL DARJI Versus STATE OF GUJARAT & 1 other(s) ================================================================ Appearance:

MR NIGAM R SHUKLA (855) for the Applicant(s) No. 1 MS MONALI BHAT, ADDL. PUBLIC PROSECUTOR(2) for the

RULE SERVED BY DS (65) for the Respondent(s) No. 2 ================================================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI

Date : 22/10/2021

CAV JUDGMENT

1. By way of this application filed under Section 482 of the Code of Criminal Procedure, the applicant, original accused No.1, has prayed to quash and set aside the criminal complaint bearing C.R. No. I - 50 of 2013 registered with Kalupur Police Station, Ahmedabad for offences

R/CR.MA/5012/2014 CAV JUDGMENT DATED: 22/10/2021

punishable under Section 304 read with Section 114 of the Indian Penal Code and all incidental proceedings arising out of the said complaint.

2. The facts, in a nutshell, giving rise to the filing of the present application are as under:

On 01.03.2013 the applicant herein had purchased an immovable property bearing City Survey No.4072 (Municipal Census No.2556) from Vidyutbhai Chandulal Shah and Rashmikaben Chandulal Shah with seventeen other co-owners, by way of registered sale deed and Rashmikaben being the Power of Attorney holder for the seventeen other persons. Thereafter, the applicant purchased another house adjacent to the aforesaid house bearing City Survey No.4073 (Municipal Census No.2557) from Karamsinh Visabhai Desai by way of registered sale deed dated 06.03.2013.

2.1 It is the say of the applicant that both the above houses were constructed before about 150 years and were not properly maintained as they were not occupied by the owners. Before about ten years prior to the purchase of the said houses by the applicant, they were being illegally occupied by two brothers, named Vishnubhai Desai and Karamsinhbhai Desai and the ground floor of the houses were given on rent by these two individuals to Tailors, who were carrying out tailoring work by using electric sewing machines. In one of the houses, an additional room was constructed by the erstwhile owner on two wooden pillars in the form of an extension to the originally constructed building. It is the further say of the applicant that the entire deal for the purchase of the above two dwelling houses was done through the said two brothers - Vishnubhai Desai and Karamsinhbhai Desai and at the relevant time, they both had

R/CR.MA/5012/2014 CAV JUDGMENT DATED: 22/10/2021

agreed that the tenants would vacate the premises within three months from the purchase of the properties by the applicant.

2.2 The facts suggest that on 22.03.2013 two electricians visited one of the houses for carrying out some electrical repair work. On the same day, at around 1530 hrs., the applicant came to know that the extended room constructed on two wooden pillars with the fitting of electric metres had collapsed and that the two electricians, viz. Maheshbhai Oza and Natubhai Mochi, sustained injuries and had died on the spot. The brother of one of the deceased, named Kalpesh Kishorbhai Oza had informed Kalupur Police Station about the aforesaid incident and an entry to that effect was made in the Police Station in the form of Accidental Death No.10 of 2013. Pursuant thereto, on 23.04.2013, the respondent No.2- Police Inspector of Kalupur Police Station registered a First Information Report in C.R. No. I - 50 of 2013 with Kalupur Police Station for offences punishable under Section 304 read with Section 114 of IPC. Being aggrieved by the same, the present application has been preferred.

3. Learned advocate Mr. Nigam Shukla appearing for the applicant submitted that the applicant herein is a lady-accused and is not related to the death of the deceased in any manner whatsoever. Even after purchasing the houses, the applicant never resided in any of them at any point of time nor was she present in any of them at the time when the additional room had collapsed. The applicant had neither sent anyone for carrying out any type of repair work at the premises nor the visit by the two individuals was within the knowledge of the applicant. The electricians were called either by any of the two brothers, named Vishnubhai Desai and Karamsinhbhai Desai, who are the co-accused in the impugned complaint or by any of the tenants, who were residing in

R/CR.MA/5012/2014 CAV JUDGMENT DATED: 22/10/2021

the ground floor of the premises. Simply because the applicant was the registered owner of the premise on the date of alleged offence, she has been arraigned as an accused in the impugned complaint.

3.1 Referring to the statements of the previous owner and the tenant recorded by the police, it was submitted on behalf of the applicant that there is not an iota of evidence to connect the applicant with the alleged offence. The applicant neither carried any intention nor had the knowledge that the electrical repair work that was to be carried out by the deceased was likely to cause their death. Hence, the ingredients of Section 304 IPC are missing in this case. It was, accordingly, urged that the application may be allowed by quashing and setting aside the impugned complaint.

3.2 In support of his submissions, learned advocate Mr. Shukla placed reliance upon the following judgments:

(a) Mahadev Prasad Kaushik v. State of Uttar Pradesh and another reported in (2008) 14 SCC 479.

(b) Ambalal D. Bhatt v. State of Gujarat reported in 1972 (3) SCC 525.

(c) Kurban Hussein Mohamedalli Bangawalla v. State of Maharashtra reported in AIR 1965 SC 1616.

(d) State of Gujarat v. Haidarali Kalubhai reported in 1976 (1) SCC 889.

4. Learned APP Ms. Monali Bhatt appearing on behalf of the respondents submitted that the matter involves disputed questions on facts. Whether the repair work was carried out at the instance of the

R/CR.MA/5012/2014 CAV JUDGMENT DATED: 22/10/2021

applicant or not and whether it was within the knowledge of the applicant that the carrying out of any kind of repair work in the premises may prove detrimental to the life of labourers carrying out such work are disputed questions of fact and could be decided at the time of trial. Hence, this Court may not exercise its inherent jurisdiction under Section 482 of Cr.P.C. in favour of the applicant. In support of her submissions, she referred to the judgment of the Apex Court in the case of Union Carbide Corporation v. Union of India, AIR 1990 SC 273.

5. Heard learned advocates on both the sides. It appears from the material on record that the applicant herein had purchased the residential property bearing City Survey No.4072 (Municipal Census No.2556) from Vidyutbhai Chandulal Shah and Rashmikaben Chandulal Shah by way of registered sale deed dated 01.03.2013 and thereafter, purchased another residential property bearing City Survey No.4073 (Municipal Census No.2557) by way of registered sale deed dated 06.03.2013. Both the residential properties are situated adjacent to each other. Thus, it is a matter of fact that the applicant herein was the registered owner of both the aforesaid houses when the incident took place in which two persons lost their lives.

6. The applicant herein is alleged to have committed the offence punishable under Section 304 IPC. It reads thus:

"304. Punishment for culpable homicide not amounting to murder.-

Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is

R/CR.MA/5012/2014 CAV JUDGMENT DATED: 22/10/2021

done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or

with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

6.1 A plain reading of the above section makes it clear that it is in two parts. The first part of the section is generally referred to as Section 304 Part-I, whereas the second part as Section 304 Part-II. The first part applies where the accused causes bodily injury to the victim with the INTENTION to cause death or with the INTENTION to cause such bodily injury as is likely to cause death. The second part, on the other hand, comes into play when death is caused by doing an act with the KNOWLEDGE that it is likely to cause death but without any INTENTION to cause death or to cause such bodily injury as is likely to cause death. Thus, the most important ingredient in a trial for this offence is the intention or knowledge with which the act which caused death, was done.

6.2 In the sale deed dated 01.03.2013 relating to purchase of the residential property bearing City Survey No.4072, it has been stated that electric fittings in the property are in working condition and that the applicant has been handed over indirect possession of the property, as it was occupied by tenants. The incident occurred on 22.03.2013 and the alleged offence came to be registered on 27.04.2013. The residential property that collapsed is situated in Kalupur Devshapada Pole area of Ahmedabad City. It is alleged that both the deceased got buried in the debris and had died owing to the injuries so sustained. The complaint

R/CR.MA/5012/2014 CAV JUDGMENT DATED: 22/10/2021

suggests that the residential property belonged to Rashmikaben Chandulal Shah and that in the year 2004, she had vacated the premises and had shifted to some other place. Thereafter, possession of the residential property was illegally taken over by Vishnubhai Desai and his brother Karamsinh Desai and had given the property on rent to Mukeshbhai Hiraji Darji and Mehndi and others. Since House No.2556 was in the possession of Vishnubhai and Karamsinh, who were not vacating the premises, she had decided to sell the property and on their bargain she sold the property to the applicant herein on 01.03.2013 and House No.2557 was of Manish Kumar Sanatkumar Shah and was purchased by Vishnubhai Desai and Karamsinh on 26.06.2012 by sale deed, the said house was sold by Karamsinh Desai and Vishnubhai Desai to the present petitioner on 06.03.2013. The FIR conveys that both the houses were managed by Karamsinh and Vishnubhai and the houses were in the possession of tenants and these two were recovering rent and were handling the repair works.

6.3 The rear side of the dilapidated house broke down, which fell on the deceased to cause death. Though knowing the house being old and dilapidated, while repairing would anytime come down and would endanger the life of the people going for repair work, It is alleged that the applicant, as the owner of the house, had not taken any step by raising pillars for the support / safety of deceased who had gone for carrying out the repair work.

7. In Vineet Kumar v. State of Uttar Pradesh, AIR 2017 SC 1884, the Apex Court observed as under:

"23. A three-Judge Bench in State of Karnataka vs. M.

R/CR.MA/5012/2014 CAV JUDGMENT DATED: 22/10/2021

Devenderappa and another, 2002 (3) SCC 89, had occasion to consider the ambit of Section 482 Cr.P.C. By analysing the scope of Section 482 Cr.P.C., this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. Following was laid down in paragraph 6:

"6. .....All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/ continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

R/CR.MA/5012/2014 CAV JUDGMENT DATED: 22/10/2021

8. The question, therefore, that arises for consideration of this Court is whether the applicant herein carried the intention or knowledge that her act would cause death or cause such bodily injury as was likely to cause death of the two individuals. It is pertinent to note that in the impugned complaint filed by respondent No.2-Police Inspector, not a single averment has been made to show as to how the applicant is connected with the alleged offence. No where in the complaint it has been averred that the repair work was carried out under the instructions of or at the instance of the applicant or for that matter that the applicant was present at the premises when the incident in question took place. It appears that the premises in question are very old, which is also evident from the Property Cards of the premises produced on record by the applicant along with the Additional Affidavit. Even in the charge-sheet papers, there is nothing to show that the applicant was aware of the fact or had the knowledge that repair work was being carried out at the premises at the relevant point of time. Under the circumstances, no intention or knowledge could be attributed to the applicant behind the death of the deceased persons so as to fall within the ambit of Section 304 IPC.

9. It is a matter of record that the premises in question were under occupation of tenants when they were purchased by the applicant. A reference regarding such occupation is also made in the sale deed dated 01.03.2013. Even in the impugned complaint filed by respondent No.2, it has been averred that physical possession of the premises is with the brothers - Vishnubhai Desai and Karamshibhai Desai and other tenants. No where in the complaint it has been averred that physical possession of the two premises had been taken over by the applicant at any time after the premises were purchased by the applicant. The statement of Rashmikaben, the earlier owner, recorded by the police on 05.04.2013

R/CR.MA/5012/2014 CAV JUDGMENT DATED: 22/10/2021

shows that in the year 2004, Vishnubhai Desai and his brother broke open the keys of the closed house and had taken over the possession of the house, who, thereafter, informed the neighbours that they had purchased the house. While during her visit at the place, she had inquired from them as to why they had rented away her property, so they started asking the house at throw away price, but by illegally keeping the tenant and collecting the rent they were not vacating the premises, she sold House No.2557 to Vishnubhai in October 2012. It is further noted in the police statement that the possession of another house was with them and by keeping tenant had started repairing work and when she said that that house too belonged to her, they asked her to sell that house to them, thus, decided to sell at Rs.7,00,000/- to Vishnubhai but while executing the sale deed, they brought applicant to the Court. Thereafter, when she went to collect the remaining amount as agreed, they failed to pay, thus she had given an application to Kalupur Police Station. Thereafter, she says that on 22.03.2013, at about 04:00 pm, Vishnubhai Desai and Karamsinh Rabari started repair work and the mishap occurred taking the lives of two persons. The statement of Rashmikaben shows how these two persons Vishnubhai and Karamsinh had illegally taken over the property since long and were collecting rent from persons inducted as tenant and how Rashmikaben was compelled to sell the properties to them. Even the house of which the sale deed is in favour of the applicant was decided to be purchased by Vishnubhai.

10. The statement of tenant Mukeshbhai Hiraji Darji recorded on 10.04.2013 by the police states that since last eight months he had taken the property on monthly rent of Rs.4500/- from Vishnubhai Desai and was having tailoring work done through his workers Babubhai Bahotra and Najyap, as he had stomach pain on 11.03.2013 was hospitalized and

R/CR.MA/5012/2014 CAV JUDGMENT DATED: 22/10/2021

after appendix operation he was discharged on 17.03.2013, he came to know that some repair work was going in the adjacent house. On 21.03.2013 he had gone for removal of stitches at the hospital and when he returned, he noticed two persons carrying out some work on the exterior side of the house, one was carrying out light work and another was pulling the soil and while asking from them, they informed him that Vishnubhai and Karamsinhbhai had send them for that work. The said tenant further informed the police that on 22.03.2013 the work was going on and as the light went off in his house, he came out and found that both these persons were doing electrical work. Since the lights were turned off, he went back to his room to sleep. Thereafter, at about 03:30 pm, the outer post of the house suddenly collapsed and hearing the sound, he came out where he saw both of them got buried. The statement of both the witnesses, thus, suggests that the repair work was done at the behest of Vishnubhai and Karamsinhbhai. The applicant appears to have been arraigned as accused only on the ground that she is the registered owner of the two properties. In the opinion of this Court, merely because the applicant is the registered owner of the premises on the date of incident, she could not be attributed with the intention or knowledge to do away the deceased persons so as to fall within the ambit of section 304 IPC.

11. In Mahadev Prasad Kaushik's case (supra), the Apex Court has held that before section 304 IPC can be invoked, the ingredients which must be satisfied are: (i) the death of the person must have been caused;

(ii) such death must have been caused by the act of the accused by causing bodily injury; (iii) there must be an intention on the part of the accused (a) to cause death; or (b) to cause such bodily injury which is likely to cause death (Part I); or (iv) there must be knowledge on the part of the accused that the bodily injury is such that it is likely to cause death

R/CR.MA/5012/2014 CAV JUDGMENT DATED: 22/10/2021

(Part II). If we consider the facts of the case in light of the principle propounded by the Apex Court in the above decision, the alleged act of the applicant would not fall within the purview of Section 304 IPC.

12. In State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court observed as under:

"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:

(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no

R/CR.MA/5012/2014 CAV JUDGMENT DATED: 22/10/2021

prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

14. Having considered the allegations made in the impugned complaint in light of the principle laid down by the Apex Court in the above decisions, this Court is of the opinion that the impugned complaint filed by respondent No.2 deserves to be quashed and set aside qua the applicant herein in exercise of the inherent powers under Section 482 of Cr.P.C.

15. For the foregoing reasons, the application is allowed. The impugned complaint bearing C.R. No. I - 50 of 2013 registered with Kalupur Police Station, Ahmedabad and all consequential proceedings initiated in pursuance thereof are quashed and set aside qua the applicant. Rule is made absolute.

(GITA GOPI, J)

PRAVIN KARUNAN