Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
rd
% Decided on: 23 January, 2018
+ W.P.(CRL) 244/2018
PREETI ..... Petitioner
Represented by: Mr. Aditya Aggarwal, Ms.
Samia Malik and Mr. Ankit
Mutreja, Advocates.
versus
THE STATE GOVT OF NCT OF DELHI ..... Respondent
Represented by: Mr. Sanjay Lao, Additional
Standing Counsel for State with
SI Jagdish, PS Shalimar Bagh.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
Crl. M.A. No. 1390/2018 (Exemption)
Allowed, subject to all just exceptions.
W.P.(CRL) 244/2018
1. The grievance of the petitioner in the present petition is that the
opinion of the investigation agency having declined to incorporate Section
304 Part-II IPC in the FIR No. 497/2017 under Sections 279/304A IPC be
set aside and the State be directed to incorporate the Section 304 Part-II IPC
and also transfer the investigation to CBI.
2. The petitioner is the unfortunate wife of the deceased Vikas who died
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on 20 October, 2017. FIR No. 497/2017 under Sections 279/304A IPC was
registered on the statement of the eye witness Pankaj Gaur who alleged that
W.P.(CRL) 244/2018 Page 1 of 4
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on 20 October, 2017 he along with his family was going to his brother at
Mukundpur while driving Car No. DL 5CH 1178. At around 7.00 PM while
coming to the Ring Road at Azadpur they reached in front of Green Lounge
Banquet Hall, when one white I-10 whose number afterwards came to be
known as DL 8C AM 9694, was being driven by the driver speedily with
carelessness and negligence and hit the car of the complainant from the right
side and thereafter also travelled further at a high speed. While driving at a
fast speed the I-10 car hit the black colour Scooty No. DL 8S 5903 on the
left of the wall resulting in the rider of the Scooty falling from the flyover.
The complainant stopped his car and with the help of one or more drivers
caught hold of the driver of I-10 Car bearing No. DL 8C AM 9694 being
driven by the person named Saurabh Goyal. An information was given to
the PCR and Saurabh Goyal was handed over with the car to the PCR.
3. On the contents of the allegations as noted above, PS Shalimar Bagh
registered the above noted FIR under the provisions of Sections 304A and
279 IPC.
4. The grievance of the petitioner is that the contents of the FIR itself
disclose the knowledge attributable to the driver of the vehicle that the act
would cause death of the person and thus Section 304 Part-II IPC was
required to be invoked. With this grievance the petitioner filed two writ
petitions before this Court, first being W.P. (Crl.) No. 3122/2017 followed
by W.P. (Crl.) No. 3588/2017.
5. W.P. (Crl.) No. 3122/2017 was disposed of by this Court vide order
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dated 10 November, 2017 directing that the petition be treated as the
representation of the petitioner to police to look into the grievance
comprehensively and a decision in this regard be taken within four weeks
W.P.(CRL) 244/2018 Page 2 of 4
from that date, whereafter if the petitioner had any grievance it would be
open for her to seek judicial remedies as available in law.
6. When Section 304 IPC was not invoked the petitioner filed yet
another petition before this Court being W.P. (Crl.) No. 3568/2017 which
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was disposed of by this Court vide order dated 21 December, 2017 noting
that the communication from Delhi Police is cryptic one, without application
of mind. Thus the State agreed to have a fresh look on the representation
and stated that a proper order would be communicated to the petitioner
within four weeks. Pursuant to the submission of learned Additional
st
Standing Counsel in W.P.(Crl.) No. 3588/2017 on 21 December, 2017 the
ACP, MACT informed that the legal opinion through proper channels have
taken from the APP and the Chief Prosecutor, North West who had
examined the three PCR calls as well as re-examined the complainant
Pankaj Gaur who is the eye witness of the incident and it was informed that
nothing has come forward to incorporate Section 304 Part-II IPC during the
course of investigation of the aforementioned FIR.
7. As noted above the repeated allegations of the complainant in the FIR
were of rash and negligent manner in which the car I-10 was being driven.
Merely because by hitting of the car, the person on the scooty fell off the
flyover and died, it cannot be held that a knowledge was attributable to him
that he was committing an act which if death was caused would amount to
culpable homicide.
8. Be that as it may, It is well settled that on conclusion of investigation,
a final opinion has to be formed by the Investigating Officer, uninfluenced
by any factor which is to be placed before the learned Trial Court whereafter
it is in the realm of the Court on examining the entire material on record, to
W.P.(CRL) 244/2018 Page 3 of 4
find out if any other offence besides the offences for which the charge sheet
has been filed, is made out, of which the Court is competent to take
cognizance as well as frame a charge. The Court not being bound by the
opinion of the Investigating Officer can always frame charge under the
appropriate sections. It is not the case of the petitioner that statements of the
eye-witness have been recorded incorrectly. Rather the case of the
petitioner is that an inference for offence punishable under Section 304 Part-
II IPC can be derived from the allegations of the complainant. This Court
finds no reason to interfere in the finding/opinion of the Investigating
Officer, who would be free to file the charge sheet as noted above, where
after it will be for the Court concerned to form a final opinion after seeing
the charge sheet and the documents on record.
9. Petition is dismissed.
(MUKTA GUPTA)
JUDGE
JANUARY 23, 2018
‘vn’
W.P.(CRL) 244/2018 Page 4 of 4