Gujarat High Court

Mosambhai Ghanshyambhai Patel vs State Of Gujarat on 30 January, 2025

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                            R/SCR.A/1420/2025                                                    ORDER DATED: 30/01/2025

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                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1420 of 2025

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                                         MOSAMBHAI GHANSHYAMBHAI PATEL & ANR.
                                                        Versus
                                               STATE OF GUJARAT & ANR.
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                      Appearance:
                      MR MAHARSHI V PATEL(6548) for the Applicant(s) No. 1,2
                      MR. MANAN MEHTA, APP for the Respondent(s) No. 1 - State
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                         CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 30/01/2025
                                                              ORAL ORDER

1. The present petition is filed for seeking the

following reliefs:

"(A) This Hon'ble Court may be pleased to issue any appropriate writ, order or direction, quashing FIR No. 11211005250023/2025 dated 21.01.2025 registered with Patdi Police Station, Surendranagar, which is annexed at "Annexure justice; A", in the interest of

(B) Pending admission, hearing and final disposal of this petition, this Honourable Court may be pleased to stay the investigation and/or further proceedings of FIR being CR No. 11211005250023/2025 dated 21.01.2025 registered with Patdi Police Station, Surendranagar for the offence punishable under Sections 105, 125 and 54 of Bharatiya Nyaya Sanhita, 2023 and Section 3(1)(j) of Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 and

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Section 7,8 and 9 of Prohibition Employment As Manual Scavenger their Rehabilitation Act, which is annexed at "Annexure-A";

C) This Hon'ble Court be pleased to pass such further and other order or order/s as may be deemed necessary by this Hon'ble Court in the facts and circumstances of the case."

2. Heard Mr. Maharshi Patel, learned advocate for the

petitioners and Mr. Manan Mehta, learned APP for the

respondent - State.

3. Mr. Maharshi Patel, learned advocate for the

petitioners, has strongly argued the matter on merits by

indicating that the action was taken by the present

petitioners, who are the Chief Officer of the Pardi Nagarpalika. He has further submitted that the

necessary precautions and actions, which was required to

be taken, should have been taken by the accused No. 3,

the contractor. He also mentioned that, as the Chief

Officer of the Nagarpalika, he is taking appropriate

action against the contractor, and necessary steps have

already been initiated following the incident. He has

further submitted that ingredients of any offence as

alleged in the FIR under the provisions of the Scheduled

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Caste and Scheduled Tribe (Prevention of Atrocities) Act,

1989, and Bharatiya Nyaya Sanhita, 2023 and the

Prohibition of Employment as Manual Scavengers and

their Rehabilitation Act, are not attracted against the

present petitioners as the present petitioners have

completed only formality on behalf of the Nagarpalika.

He has further submitted that it cannot be said that

petitioners have committed any offence in connection with

the incident, and for that, FIR is filed. He has further

submitted that it is the duty of the contractor to provide

all the necessary equipments to the workers. Lastly, he

has submitted that the petitioners cannot be saddled

with the vicarious liability of the act as the offence

committed by the contractor and, therefore, he has submitted that the present position is required to be

allowed by quashing and setting aside the impugned FIR.

4. Mr. Manan Mehta, learned APP for the respondent

- State has submitted that on bare reading of the FIR,

prima facie, case is made out and this Court should not exercise the powers at this nascent stage, which should

be exercised very sparingly. He has also submitted that

looking to the gravity of the offence, whereby two

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persons have expired due to such incident, no

interference is required to be called for by this Court at

this stage.

5.1 I have heard the learned advocates for the

respective parties and I have considered the submissions

made at the bar. I have also perused the present FIR,

whereby it is stated that when the incident has occurred

on 21.01.2025 near Devotion School at Patadi Jin Raod,

where the sewers cleaning work was going on and three

persons namely Chiuragbhai Kanubhai Patadiya,

Jayeshbhai Bharatbhai Patadiya and Chetanbhai

Mangabhai Patadiya were send for cleaning of sewers by

the Nagarpalika and his contractor. At that time, there was a gas leak from the sewer tank, resulting in the

deaths of Chiuragbhai Kanubhai Patadiya and Jayeshbhai

Bharatbhai Patadiya, who were working as sweepers.

Their deaths were declared by the doctor upon their

arrival at the hospital, and the cause of death is

attributed to the negligence of the officers and

contractors of the Nagarpalika. As a result, the FIR has

been filed. It also transpires that subsequently after the

incident has occurred, the action is taken by the present

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petitioners and prior to incident also, the contract is

executed and according to the conditions of the contract,

it appears that the contractor is duty-bound to provide

all necessary safety equipment to the workers.

5.2.1 It is fruitful to refer the provisions of Sections

105, 125 and 54 of the Bharatiya Nyana Sanhita, 2023,

which reads as follows:

"Section 105 in Bharatiya Nyaya Sanhita, 2023

105. 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 shall not be less than five years but which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is 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 and with fine, 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. [Similar to Section 304 from Old IPC-Also Refer]

125. Act endangering life or personal safety of others.

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Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months or with fine which may extend to two thousand five hundred rupees, or with both, but

(a) where hurt is caused, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five thousand rupees, or with both;

(b) where grievous hurt is caused, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine which may extend to ten thousand rupees, or with both.

Of wrongful restraint and wrongful confinement [Similar to Section 336 from Old IPC-Also Refer ]

54. Abettor present when offence is committed. Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.

[Similar to Section 114 from Old IPC-Also Refer ]"

5.2.2 It is also fruitful to refer the provisions of

Section 3(1)(j) of the Scheduled Caste and Scheduled

Tribe (Prevention of Atrocities) Act, 1989, which reads as

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follows:

"3(1)(j) makes a member of a Scheduled Caste or a Scheduled Tribe to do manual scavenging or employs or

permits the employment of such member for such purpose; "

5.2.3 It is also fruitful to refer the provisions of

Sections 7, 8 and 9 of the Prohibition of Employment as

Manual Scavengers and their Rehabilitation Act, which

reads as follows:

"7. Prohibition of persons from engagement or employment for hazardous cleaning of sewers and septic tanks.--No person, local authority or any agency shall, from such date as the State Government may notify, which shall not be later than one year from the date of commencement of this Act, engage or employ, either directly or indirectly, any person for hazardous cleaning of a sewer or a septic tank.

8. Penalty for contravention of section 5 or section 6.-- hoever contravenes the provisions of section 5 or section 6 shall for the first contravention be punishable with imprisonment for a term which may extend to one year or with fine which may extend to fifty thousand rupees or with both, and for any subsequent contravention with imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both.

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9. Penalty for contravention of section 7.--Whoever contravenes the provisions of section 7 shall for the first contravention be punishable with imprisonment for a term which may extend to two years or with fine which may extend to two lakh rupees or with both, and for any subsequent contravention with imprisonment which may extend to five years or with fine which may extend to five lakh rupees, or with both."

5.3 Considering the fact that the present petitioners are

the Chief Officers of the Nagarpalika, they can be said

to be the executive heads of the Nagarpalika. They are

responsible for taking necessary precautions, supervising

the work done by subordinates, and overseeing the

contractors. Merely, the fact that they, being the chief

officer, cannot shrug away from their liability arisen from such incident, whereby the Nagarpalika has given

contract to the contractor and contractor has not taken

care to for having any precaution during work. In fact,

this activity, which was supposed to be carried out, has

been deprecated by the Hon'ble Apex Court as well as

this Hon'ble Court through its many judgments. There

are specific guidelines to provide necessary protective

materials to workers, and such activities should be

carried out with the aid of machinery--none of which

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was done in the present case.

5.4 It is relevant to take note that the impugned FIR

was filed on 21.01.2025, and the present petition was

immediately filed before this Court and taken into

consideration on 30.01.2025, without approaching the

concerned trial court. Moreover, the investigation is still

at a very nascent stage. In light of the above, prima

facie case is made out against the present petitioners as the head of the Nagarpalika, the petitioners are equally

responsible for ensuring that any activity conducted on

behalf of the Nagarpalika is carried out in accordance

with the law and with the proper protection of the

individuals involved--something that was not done in this case. Let the matter be investigated from the proper

perspective.

5.5.1 At this stage, it would be fruitful to refer to the

recent decision of the Hon'ble Apex Court in the case of

Somjeet Mallick versus State of Jharkhand and others

reported in (2024) 10 SCC 527, more particularly Paras :

15, 17and 18 thereof, which read as under :

" 15. Before we proceed to test the correctness

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of the impugned order, we must bear in mind that at the stage of deciding whether a criminal proceeding or FIR, as the case may be, is to be quashed at the threshold or not, the allegations in the FIR or the police report or the complaint, including the materials collected during investigation or inquiry, as the case may be, are to be taken at their face value so as to determine whether a prima facie case for investigation or proceeding against the accused, as the case may be, is made out. The correctness of the allegations is not to be tested at this stage.

17. It is trite law that FIR is not an encyclopaedia of all imputations. Therefore, to test whether an FIR discloses commission of a cognizable offence what is to be looked at is not any omission in the accusations but the gravamen of the accusations contained therein to find out whether, prima facie, some cognizable offence has been committed or not. At this stage, the Court is not required to ascertain as to which specific offence has been committed.

18. It is only after investigation, at the time of framing charge, when materials collected during investigation are before the Court, the Court has to draw an opinion as to for commission of which offence the accused should

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be tried. Prior to that, if satisfied, the Court may even discharge the accused. Thus, when the FIR alleges a dishonest conduct on the part of the accused which, if supported by materials, would disclose commission of a cognizable offence, investigation should not be thwarted by quashing the FIR."

5.5.2 Furthermore, it would also be fruitful to refer

the judgment of the Hon'ble Apex Court in the case of

Neeharika Infrastructure Pvt. Ltd. versus State of

Maharashtra and Others reported in 2021 SCC OnLine

SC 315, and more particularly para 80 is relevant, which

is as under:

"80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of

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powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

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vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is

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no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the

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High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/ or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/ or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum

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can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

6. In light of the overall facts and circumstances of

the case and considering the above judgment and

provisions of law, I am of the view that prima facie,

case is made out and, therefore, it can not be said that

continuation of the proceeding pursuant to the impugned

FIR against the present petitioners would amount to

abuse of process of law and, therefore, I did not find

any reason to excise my discretion in favour of present

petitioners either under Article 226 of the Constitution of

India or under Section 528 of the Bharatiya Nyaya

Sanhita, 2023. Hence, the present petition is dismissed

at the very threshold as it is found merit-less and is