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2021 DIGILAW 15 (JK)

Nirja Devi v. State of J&K

2021-02-07

SANJEEV KUMAR

body2021
JUDGMENT : SANJEEV KUMAR, J. 1. The petitioner is wife of one Ashok Kumar, who met with an accident while driving his tractor on 29th April, 2015 at 8.30 a.m. in his village Neota, Bhaderwah. The accident occurred when the tractor driven by the deceased rolled into a deep gorge and as a result, the husband of the petitioner lost his life. Respondent No. 2, upon receipt of information, registered FIR No. 41/2015 under Section 279/304-A RPC and entrusted the matter to the Investigating Officer for investigation. On completion of investigation, the Investigating Officer found the deceased, prima facie, guilty of rash and negligent driving resulting in his own death. He, therefore, presented a challan against the deceased under Section 279/304-A RPC before the Judicial Magistrate 1st Class, Bhaderwah. The challan was, however, dismissed by the learned Magistrate on the ground that no criminal challan can proceed against the deceased. With the dismissal of the challan by the Judicial Magistrate, apparently no grievance of the petitioner is left to be addressed, however, the petitioner has approached this Court through the medium of instant petition to call in question the registration of FIR against the deceased, which ultimately resulted in finding the deceased husband of the petitioner prima facie guilty of commission of offence under Section 279/304-A RPC. She is also aggrieved of the order passed by the Judicial Magistrate 1st Class, Bhaderwah dismissing the challan simply on the ground that same could not proceed against the deceased person rather than holding registration of the FIR without jurisdiction and beyond the powers of the police. 2. Mr. Jagpaul Singh, learned counsel appearing for the petitioner has raised an important point for adjudication in this case. He submits that no FIR under Section 154 Cr.P.C. can be registered against a dead person nor any investigation can be set in motion against the deceased. He further submits that commission of cognizable offence is sine qua non for registration of the FIR and in a case of motor vehicular accident, which has resulted into death of the driver without there being any negligence on the part of any third person, the offence under Section 279 or 304-A RPC are not made out. 3. Having heard learned counsel for the petitioner and perused the material on record, it is necessary to first set out Section 154 Cr.P.C. which reads thus: “154. 3. Having heard learned counsel for the petitioner and perused the material on record, it is necessary to first set out Section 154 Cr.P.C. which reads thus: “154. Information in cognizable cases: (1) Every information relating to the commission of a cognizable offence if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as [the Government] may prescribe in this behalf: Provided that if the information is given by the woman against whom an offence under section 326-A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 375, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Ranbir Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer and such woman shall be provided legal assistance and also the assistance of a healthcare worker or women's organisation or both: Provided further that: (a) in the event of such woman being temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such woman's choice, in the presence of a special educator or an interpreter or a medical officer, as the case may be. (b) the recording of such information may, as far as practicable, be videographed. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant against a proper receipt. (b) the recording of such information may, as far as practicable, be videographed. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant against a proper receipt. (3) Any person aggrieved by a refusal on the part of an officer-in-charge of a Police Station to record the information referred to in sub-section (1) may deliver personally or cause to be delivered or send by post the substance of such information, in writing to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code and such officer shall have all the posers of an officer in-charge of the police station in relation to that offence.” 4. From a reading of Section 154 reproduced herein above, it is abundantly clear that an FIR can be registered by the in-charge of Police Station concerned only, if he receives information relating to commission of cognizable offence. Indisputably, Section 279 RPC and 304-A RPC are cognizable offences and if the in-charge of Police Station concerned receives information that there is commission of a cognizable offence under Section 279 or 304-A RPC, he has no option but to register FIR. However, in the instant case, if we look to the contents of the FIR, it clearly transpires that the information, which the Police Station, Bhaderwah received with regard to the accident does not disclose the commission of any cognizable offence. With a view to appreciate this aspect, it is necessary to reproduce Sections 279 and 304-A RPC. However, in the instant case, if we look to the contents of the FIR, it clearly transpires that the information, which the Police Station, Bhaderwah received with regard to the accident does not disclose the commission of any cognizable offence. With a view to appreciate this aspect, it is necessary to reproduce Sections 279 and 304-A RPC. Section 279 reads thus: “Rash driving or riding on a public way - Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” Section 304-A reads thus: “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 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.” 5. Insofar as Section 279 RPC is concerned, it pertains to rash driving or riding on public way and lays down that if a person drives any vehicle or rides on any public way in a rash and negligent manner as would have the potential to endanger human life or is likely to cause hurt or injury to any other person, shall be guilty of commission of offence under Section 279 RPC. 6. Admittedly, as is apparent from a reading of the FIR, the deceased was driving his tractor in his own fields and not on any public way nor the driving of the tractor had the potential of endangering any human life or causing hurt or injury to any other person. 6. Admittedly, as is apparent from a reading of the FIR, the deceased was driving his tractor in his own fields and not on any public way nor the driving of the tractor had the potential of endangering any human life or causing hurt or injury to any other person. Similarly, as is clear from a bare reading of Section 304-A, if a person causes death of any person by doing any rash or negligent act not amounting to culpable homicide would be guilty of commission of offence under Section 304-A RPC. Assuming that deceased was driving the tractor in a rash and negligent manner but in doing so he did not cause death of any person. Needless to say that the term “any person” used in Section 304-A refers to a person other than the accused. In the instant case, it was the deceased, accused in the FIR, who died of his own. Whether or not it was a rash or negligent act may not be relevant for our purposes. It is, thus, a foregone conclusion that in a motor vehicular accident where the driver himself dies because of his own act of rash and negligent driving, he cannot be made accused nor his such rash and negligent act could be made subject matter of investigation by registering FIR. It would, therefore, not be wrong to hold that no criminal case can be registered against a dead nor any investigation can be embarked upon by registering an FIR. It is a different matter where the cause of death of a person is not known and inquest proceedings to find out the cause of death are initiated by the police in terms of Section 174 Cr.P.C. 7. Having said that I am of the considered view that with the dismissal of the challan by the learned Judicial Magistrate 1st Class, Bhaderwah, there was no grievance of the petitioner left to be redressed and she should have felt satisfied with the aforesaid order. Anyway having regard to the nature of question raised, I have considered the issue only to provide guidelines to the police as to how they should act in such circumstances. The Registration of FIR against the deceased, embarking upon the investigation and then presenting a police challan against the dead before the Judicial Magistrate is nothing but a sheer wastage of public time. The Registration of FIR against the deceased, embarking upon the investigation and then presenting a police challan against the dead before the Judicial Magistrate is nothing but a sheer wastage of public time. The police could utilize this time for some better cause. 8. In view of the aforesaid, this petition is disposed of by holding that registration of the FIR, investigation taken thereon and presentation of the challan against a dead person i.e. husband of petitioner was nullity and non-est in the eye of law and therefore, of no consequence.