HC-NIC

R/SCR.A/5085/2015

ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 5085 of 2015
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PRABHABEN NARESHBHAI PATEL....Applicant(s)

Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR BM MANGUKIYA, ADVOCATE for the Applicant(s) No. 1
MS BELA A PRAJAPATI, ADVOCATE for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 28/08/2015
ORAL ORDER

1.

On 27 August, 2015, the following order was passed;

th

1 This matter was mentioned in the morning by Mr.

Mangukiya, the learned advocate praying for circulation today
at 2.30 p.m. Having regard to the urgency in the matter,
permission was granted. The matter was notified on a separate
Board to be taken up at 2.30 p.m. The matter is therefore
accordingly taken up for hearing.
2 Mr. Mangukiya, the learned advocate appearing for the
petitioner is permitted to implead the Superintendent, Civil
Hospital, Ahmedabad, as party respondent No.5.
3 This petition is filed by the mother of deceased Swetang,
aged 32, alleged to have been mercilessly beaten by the police
and, ultimately, succumbing to the injuries. It is the case of the
mother that her son was in the house at about 10.30 p.m. on
25.08.2015. It is alleged that few police officers entered in the
society of the petitioner, broke the wind screen of cars and
other vehicles parked in the society and forcibly took away five
persons who were sleeping in the bedrooms of their respective
houses. The son of the petitioner was one of those five persons
who was picked up by the police at about 10.30 in the night. It
is alleged that he was mercilessly beaten on the main road and,

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thereafter, was taken to the Bapunagar Police Station. It is her

case that at the Bapunagar Police Station also, he was
mercilessly beaten. The boy complained of excruciating pain,
but the same was ignored by the police officers. Ultimately, the
boy succumbed to the injuries. The body was taken to the Civil
Hospital, Ahmedabad and I am told that the postmortem has
been performed. The report has not been yet declared. I am
told that the body of Swetang has been kept in the morgue. In
such circumstances referred to above, the petitioner has
prayed for the following reliefs:
18 (A). Be pleased to admit this petition;
(B) Be pleased to issue a writ of mandamus or any other
appropriate writ, order or direction in the nature of
mandamus, and to direct to constitute a Special
Investigation Team to investigate the custodial death of
the son of the petitioner and atrocity and tortuous
actions taken by the police in the Ahmedabad City.
(C) Be pleased to issue a writ of mandamus or any other
appropriate writ, order or direction in the nature of
mandamus, and to direct the police officers to forthwith
produce before this Honble Court all the records in
relation to the custodial death of the son of the petitioner
and be pleased to direct them to handover report of the
autopsy of the body of the son of the petitioner;
(D) Pending admission and final disposal of the present
petition, be pleased to direct that the postmortem report
of the son of the petitioner be brought before this Honble
Court forthwith and copy thereof may be given to the
petitioner forthwith.
(E) Pending admission and final disposal of the present
petition, be pleased to direct the respondents to preserve
the dead body of the son of the petitioner at minus 20
degree temperature, so that in case postmortem report
appears to be tempered with, the second opinion can be
taken;
(F) Be pleased to pass such other and further orders as
may be deemed fit and proper.
4 The allegations levelled in this petition are extremely serious
and if ultimately found or proved to be true would be nothing
short of murder. Since the body of Swetang is still in the
custody of the Civil Hospital authorities, I direct that the second

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postmortem be performed at the earliest. The second

postmortem shall be performed by a Team of four Medical
Officers. The Head of Department of Forensic Science shall be
one of the officers in the team who will perform the second
postmortem. The Postmortem Report shall be prepared and
produced tomorrow before this Court.
5 Let Notice be issued to the respondents returnable on
28.08.2015. Mr. Mitesh Amin, the learned Public Prosecutor
waives service of notice for and on behalf of the respondents.
6 The body of Swetang shall not be disposed of until further
orders, which shall be passed tomorrow i.e. on 28.08.2015 at
11.00 a.m. The body of Swetang shall be maintained well and
kept in the morgue. A responsible officer shall remain present
tomorrow with the Postmortem Reports.
7 Mr. Amin, the learned Public Prosecutor is directed to inform
the concerned authority of the Civil Hospital, Ahmedabad to
start with the second postmortem. It goes without saying that
since this is a case of custodial death, the postmortem shall be
videographed.
8 S.O. to 28.08.2015.

2.

The panel of doctors who performed the postmortem are

personally present in the Court with the reports. Two

postmortems of the deceased have been performed. When this
Court passed the order referred to above, the first postmortem
was already completed. In the facts of the case, I thought fit to
direct that the second postmortem shall be performed by a
panel of four doctors headed by the HOD, Forensic Science.
The two postmortem reports have been placed before me. The
first postmortem report reveals the following external injuries
on the body of the deceased as noted in column No.17.
Following injuries present on body.
(1)4x4 cm size red colour contusion present on tip of
right shoulder. Underlying sub-cutaneous tissue shows
extravasation of blood (2) red colour 12x2 cm size with

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intervening 1 cm pale area, trumline contusion vertically

oblique present on posterolateral aspect of upper part of
rigtht side of back of body. Its upper lateral end is 3 cm
below tip of right shoulder. Its inferomedial end is 13 cm
below right upper
shoulder line. Underlying subcutaneous tissue shows extravasation of blood (3) red
colour 8x3 cm size contusion obliquely present on
posterolateral aspect of right arm. Its lower anterior end
is 4 cm above lateral aspect of elbow joint and its upper
posterior end is 7 cm above tip of elbow. Underlying subcutaneous tissue shows extravasation of blood. (4) red
colour 1x0.5 cm size abrasion present on back of right
elbow joint (5) red colour 5.5x2 cm size with 1 cm
intervening pale area, trumline contusion transversly
present on right scapular region, 11 cm below right
shoulder line and its medial end is 6 cm right to midline.
Underlying sub-cutaneous tissue shows extravasation of
blood (6) red colour contusion of size 15x15 cm present
on posterior end lateral aspect of left arm. Its upper end
is just below left axilla and 11 cm below left shoulder tip.
Underlying sub-cutaneous tissue shows extravasation of
blood (7) red colour vertically oblique contusion of size
5x2 cm present on inner aspect of left forearm. Its lower
lateral end is 7 cm above wrist joint. (8) red colour
vertical trumline absaded contusion of size 5x2 cm with 1
cm intervening pale area present at dorsum of left hand.
Its upper medial end is at midline of dorsum of left wrist
joint. (9) red absaded contusion of size 5x1 cm present
on left scapular region of body, 7 cm below left shoulder
line and 9 cm left to midline. (10) 2.5x0.5 cm size red
colour contusion transversly present on lateral part of
right upper eyelid. Underlying sub-cutaneous tissue
shows extravasation of blood.
3.

The postmortem report reveals the following internal

injuries as stated in column No.20.

20. CRANIAL CAVITY:HEAD:
(i)injuries under the scalp, their nature.
One V shaped contused-lacerated wound present at
left occipital region of scalp. Size of both wings of V are
1.5x0.2 and 1.5x0.2 cm. Apex of V shaped wound is 5
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cm above and 4 cm left lateral to external occipital

protuberance . Margins are irregular and hemorrhagic.
4X3 cm reddish colour contusion present under occipital
region of scalp. Corresponding to above lacerated wound
of scalp another 1.5x2 cm size reddish colour contusion
present on under right frontal region of scalp near
cosonal sutuse and 0.5 cm right to midline. Scalp tissue
underlying both contusion shows exravasation of blood.
(II) Skull vault and base-describe fractures, their sides,
dimensions, directions, etc.
No fracture present.
(III) BRAIN: The appearance of its covering, size, weight
and general condition of the organ itself and abnormality
found in its examination to be carefully noted.
Meninges are intact. Thin layer of diffuse subarachnoid
hemorrhage present over surface of both cerepsal
hemisphere. Brain is oedematous. Weight of brain-1333
gm.
4.

The cause of death assigned is shock and hemorrhage

due to head injury associated with multiple injuries sustained

over body. The viscera has been preserved for chemical
analysis and histopathological examination.
5.

The second postmortem report reveals the following

external injuries as stated in column No.17. The second

postmortem report reveals the following internal injuries as
stated in column No.20.

20. CRANIAL CAVITY:HEAD:

(i)injuries under the scalp, their nature.
(1) One contused lacerated wound V shaped present
over the left side of the back aspect of the head. Size of
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both limbs of this wound is 1.5x0.2 cm each. This wound

is 5 cm above and 4 cm left to the external occipital
protuberance. One dark red colour contusion of size 5x4
cm present under the left occipital region of the scalp
corresponding with the above mentioned V shaped
laceration. (2) one dark red colour contusion of size 2x2
cm present under the right frontal region of the scalp.
(II) Skull vault and base-describe fractures, their sides,
dimensions, directions, etc.
Skull is opened. No any antemorte fracture found in
scalp..
(III) BRAIN: The appearance of its covering, size, weight
and general condition of the organ itself and abnormality
found in its examination to be carefully noted.
Dura is cut opened skull cavity is containing a piece of
cerebrum rest of the brain is absent. Dark red colour
subarachnoid hemorrhage is present over the surface of
piece of cerebrum.
6.

The cause of death assigned in the second postmortem

report is subarachnoid hemorrhage as a result of head injury.

7.

The autopsy performed makes one thing very clear of

course prima facie that the case is of homicidal death. Now the
next question that crops up is who is responsible for the
homicidal death of the deceased. It is the case of the
petitioner, i.e., the mother of the deceased that it is the police
officers who were on duty on that date are responsible for the
death of her son as her son was mercilessly beaten up by the
police.
8.

Mr. Mitesh Amin, the learned Public Prosecutor appearing

for the State pointed out that the inquest panchnama of the
dead body has been drawn. Mr. Amin also pointed out that the

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concerned police also informed the Magistrate of the death of

the deceased and an inquiry under section 176 has been
initiated. The Magistral inquiry under section 176 of the
Criminal Procedure Code has been registered as Accidental
Case No.42 of 2015. The inquiry is being conducted by the
learned Additional Chief Metropolitan Magistrate, Court No.14,
Ahmedabad, It shall be open for the concerned Magistrate to
proceed further with the inquiry as contemplated under section
176 of the Code. However, the matter should not rest over
here.
9.

While

holding

the

enquiry

under

Section

176

the

Magistrate does not function as a Criminal Court. The object of

an enquiry is merely to elucidate the facts of a violent or
unnatural death before there is any reasonable suspicion of
the commission of any offence, and when such grounds do
exist, the enquiry comes under other portions of the Code. The
Magistrate's determination, if he chooses to make one, lacks
finality and authoritativeness and is neither binding nor
conclusive. He has no jurisdiction to deliver or power to
enforce, a judgement. It is at best a proceeding before a
Magistrate acting in his executive or administrative capacity,
for the grant of power to hold an enquiry under Section 176 is
incidental to an executive or administrative function. It has
nothing to do with the exercise of judicial power. The
Magistrate is not even required to arrive at a finding or to
make a report.
10.

It was expected of the highest police officers to have

immediately registered the first information report of the

mother of the deceased or any other person acquainted with

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the facts of the alleged incident. The PI of the Bapunagar

Police Station shall record the first information report of the
mother of the deceased in accordance with law at the earliest.
He shall supply a copy of such first information report to the
mother at the end of the registration of the first information
report. After the registration of the first information report, he
shall forward the same to the CID Crime, State of Gujarat for
the investigation of the same. The CID Crime, on receipt of
such first information report from the PI of the Bapurnagar
Police Station, shall immediately start with the investigation in
accordance with law. It is expected of the CID Crime to go
deep into the investigation in accordance with law and see to it
that the investigation is completed at the earliest.
11.

The

learned advocate appearing for the petitioner

submitted that the investigation should be assigned to any

officer of the rank of IPS. In my view, the designation or rank of
a police officer is not important. What is important is the
honesty and sincerity with which the investigation is carried
out. I am sure that if the investigation is carried out honestly
and with all dedication, then the Investigating Agency will be
able to find out the truth.

12.

Let this matter appear on 31.8.2015 to report further

progress in the matter. A copy of this order be provided to Mr.

Amin, the learned Public prosecutor appearing for the State.
The two postmortem reports shall be kept on the record of the
case. The Registry shall keep the postmortem reports in the
sealed cover. Since the postmortems have been already
performed and the reports have been placed on record, the

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body of deceased Shwetang shall be handed over to the family

members so that the final rites can be performed at the
earliest.

(J.B.PARDIWALA, J.)

Vahid

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