PANAJI
The Bombay High Court at Goa on Tuesday directed that the Crime Branch register an FIR based on the complaint filed by Mario Dias the brother of deceased Bismarque Dias agreeing with the argument that an investigation under an FIR is qualitatively different than an investigation done under section 174 of the code of criminal procedure.
Disposing of two petitions filed separately -- one filed by Kennedy Afonso, Sudeep Dalvi and Samir Kelekar and another filed by Maria Monteiro e Dias representatives of the family of activist Dias, the court opined that the “state owes an obligation to the deceased and his family that investigation into the cause to solve the alleged crime has been duly conducted.”
“On perusal of the complaint (lodged by Mario Dias on November 7, 2015) it prima facie does disclose the commission of a cognizable offence. The police are not justified in refusing to register an FIR.”
“The fact remains that ultimately a conclusive solution to the manner in which the deceased had died has not been explained by any pointed and reliable evidence,” the court observed.
“The state owes an obligation to the deceased and his family that an investigation be carried out to solve an alleged crime has been duly conducted. All aspects duly considered suggest that the petitioners are not satisfied and have brought to our notice different aspects remain unsolved,” the court observed.
The petitioners pointed out that Dias who was an activist who took up different issues concerning him and had filed complaints against various persons went missing on November 5, when he was last seen alive leading to various inquiries in the village about his whereabouts.
The petitioners also pointed out contradictions in the various versions of persons who had met him on the day until November 7, when his body was found floating in the River Mandovi. The contradictions gave rise to suspicions that the investigations have not been fair or in accordance with law.
Two autopsies later and after two separate investigations both by the Old Goa Police Station and the Crime Branch, who submitted their reports to the Sub Divisional Magistrate (SDM), the SDM passed an order under section 174 of the Code of Criminal Procedure on April 21, 2016 that the deceased died due to asphyxiation and hence a result of drowning in water and the cause of death was classified as an accidental death.
Aggrieved by the decision, the petitioners approached the High Court calling for records in the proceedings, to quash the order of the SDM and further to direct the Central Bureau of Investigation to conduct an investigation in the manner of death after registering an FIR.
Brother of Bismarque, Mario Dias had lodged a complaint alleging foul play in connection with the death and it was the contention of the petitioners that the investigation done was not in accordance with law and that the SDM was not justified in recording the death as an accidental death.
In response, the prosecution disputed the claims saying that the death was investigated by two agencies -- the local police station as well as the Crime Branch -- which along with the help of the family lawyer Adv Jos Peter de Souza who was taken on board in the investigation but arrived at the same conclusion.
Crucially, Adv S S Kantak appearing for the activist petitioners pointed out that investigations under section 174 of the CrPC were qualitatively different than that done after registering an FIR and that on a bare perusal of the complaint of the brother of the deceased would itself disclose the commission of a cognizable offence and that the prosecution had no justification to refuse to register an FIR.
“We are of the considered opinion to seek the registration of an FIR based on the complaint dated November 7, 2015 as expeditiously as possible and to submit a report every three months,” the division bench of the Bombay High Court at Goa revealed.
