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1997 DIGILAW 728 (PAT)

Birla Institute Of Technology Mesra v. State Of Bihar

1997-10-01

P.K.SARIN

body1997
Judgment P.K.Sarin, J. 1. This petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioner for issuing writ, order or direction in the nature of certiorari for setting aside the judgment and order of acquittal dated 25.2.1995 passed by Second Additional judicial Commissioner, Ranchi, in sessions Trial No. 318 or 1984 arising out of Sadar P.S. Case No. 94 of 1982. Further relief has been sought for directing the trial Court to hold re- trial of the accused persons, respondents No. 2 to 19. 2. It appears that first information report (copy at Annexure-1) was filed by Sri Parmeshwar Shukla, the Officer-in-charge of P.S. Sadar, Ranchi, Camp Mesra, B.I.T. More. It was filed in respect of an incident which took place on 16.4.1982 where in a clash took place between the student of the petitioner. Institution and a mob of villagers including the accused respondents No. 2 to 19. Number of students were injured in the incident and two out of the injured persons subsequently succumbed to their injuries. After investigation charge- sheet was submitted against the accused respondents No. 2 to 19 who pleaded not guilty to the charge. It further appeared that only one witness could be examined by the prosecution and the learned Sessions Judge, on appraisal of evidence on record, found the charges to be not proved and acquitted the accused respondents No. 2 to 19. The State does not appear to have filed any appeal against the said order of acquittal. The petitioner-Institution has filed the present petition for setting aside the order of acquittal and for direction for re- trial. 3. A preliminary objection has been raised about the maintainability of the present petition at the instance of the petitioner-Institution, who is third party to the criminal proceedings in which the impugned order and judgment have been passed. 4. It has been contended by the learned Counsel for the petitioner that the injured and the deceased students were students of the petitioner-Institution which shall be deemed to be the local guardian of the said students as such it has a right to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. 5. 4. It has been contended by the learned Counsel for the petitioner that the injured and the deceased students were students of the petitioner-Institution which shall be deemed to be the local guardian of the said students as such it has a right to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. 5. On the other hand, the learned Counsel for the accused respondents No. 2 to 19 has contended that the petitioner cannot be said to be aggrieved person and it has no locus standi to maintain the present petition for setting aside the impugned judgment. In support of his contention the learned Counsel has placed reliance on the judgment of the Apex Court in the case of Thakur Ram V/s. State of Bihar -- , wherein it has been observed by the Apex Court that in a case which has proceeded on a police report a private party has no locus standi. It was observed that barring a few exceptions in criminal matters who is treated as the aggrieved party is the State which is the custodian of the social interest of the community at large and so it is for the state to take all the steps necessary for bringing the person who has acted against the social interest of the community to book. The present case has proceeded on police report therefore in view of the observation of the Apex Court in the said case it is only the State who can be said to be the aggrieved person in the respect of the impugned judgment. At the most the informant may also be said to be an aggrieved person as on his report the criminal law was set in motion. The present petitioner is not the informant of the case. Moreover, the incident did not take place inside the campus of the petitioner-Institution. It took place at a distance from the Institution where clash took place between students and the mob of villagers. The present petitioner is not the informant of the case. Moreover, the incident did not take place inside the campus of the petitioner-Institution. It took place at a distance from the Institution where clash took place between students and the mob of villagers. The Apex Court with reference to the locus standi of a person to file petition under Article 226 of the Constitution of India has observed in the case of Gadde Venkateswara Rao V/s. Government of Andhra Pradesh -- , that a petitioner who seeks to file an application under Article 226 of the Constitution should "ordinarily" be one who has a personal or individual right in the subject matter of the petition. It was further observed that in exceptional cases a person who has been prejudicially affected by an act or omission of an authority can file a writ even though he has no propriety or even fiduciary interest in the subject matter thereof. The petitioners institution cannot be said to have been prejudicially affected by the impugned judgment. The petitioner-Institution is not the injured person nor can be said to be the both (sic). 6. In the case of Jasbhai Moti Bhai Desai V/s. Roshan Kumar and Ors. -- the Apex Court has held that in order to have the locus-standi to INVOKE certiorari jurisdiction the petitioner should be an "aggrieved person". It was observed that the expression "aggrieved person" denotes an elastic and, to an extent, an elusive concept. Its scope and meaning depends on a diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case; the nature and extent of the petitioners interest and the nature and extent of the prejudice or injuries suffered by him. Considering the present case in the light of observations made by the Apex Court in the said case, petitioner does not appear to be aggrieved person. He cannot be said to have been affected prejudicially by the result of the trial. 7. A decision of the Apex Court in the case of Northern Plastics Ltd. V/s. Hindustan Photo Films Mfg. Co. He cannot be said to have been affected prejudicially by the result of the trial. 7. A decision of the Apex Court in the case of Northern Plastics Ltd. V/s. Hindustan Photo Films Mfg. Co. Ltd., -- has also been cited at the Bar but the said decision does not appear to be relevant for the purposes of the present case as in the said case the Apex Court considered the term "persons aggrieved" within the meaning of Sec. 129-A (1) of the Customs Act. The decision was in respect of the right to file appeal under the Customs Act by the aggrieved person. 8. It is well settled that the writ of certiorari can be issued only when it is found that the subordinate court or the Tribunal had acted without jurisdiction or the decision is without any evidence. 9. The decision in the case of Gauransa Chandra Deb V/s. The Collector of Central Excise and Land Customs AIR 1968 Tripura 39, relied upon by the learned Counsel for the petitioner, also lays down that the writ of certiorari is not meant to take the place of an appeal and its purpose is only to determine on an examination of the record whether the inferior Tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirement of the law which it is meant to administer. It was further observed in the said case that mere formal or technical errors even though of law will not be sufficient to attract this extraordinary jurisdiction. 10. In the case of Md. Yunus V/s. Md. Mustquim -- , the Apex Court, while considering the scope of Article 227 of the Constitution of India has observed that the supervisory jurisdiction under Article 227 of the constitution is limited "to seeing that an inferior court to Tribunal functions within the limits of its authority and not be correct an error apparent on the face of the record much less an error of law. It was observed that in exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. In the case of Chanavarkar S.R. Rao V/s. Ashlata S. Guram, -- . It was observed that in exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. In the case of Chanavarkar S.R. Rao V/s. Ashlata S. Guram, -- . the Apex Court observed that the High Court should not interfere with a finding within the jurisdiction of the inferior court or Tribunal except where the finding is perverse in law in the sense that no reasonable person properly instructed in law could have come to such a finding or there is misdirection in law or view of fact has been taken in the teeth of preponderance of evidence or the finding is not based on any material evidence or it resulted in manifest injustice. In the present case, the finding cannot be said to be perverse in law and cannot be said to be not based on appraisal of evidence on record. Therefore, there does not appear to be any occasion for exercising the powers of this Court under Articles 227 of the Constitution of India to set aside the impugned judgment. 11. It has been contended by the learned Counsel for the petitioner that only one witness was examined and no other witness was examined. Under Sections 230/231 of the Code of Criminal Procedure the prosecution has to lead evidence and the court is required to issue process only when an application is made on behalf of the prosecution to issue processes for procuring the attendance of a witness. If the prosecution does not move an application for issue of process the court is not duty bound to issue process on its own accord unless it feels inclined to exercise the discretion under Sec. 311 of the Code of Criminal Procedure. Moreover, that relates to the procedural aspect and the would not give any right to a third party to invoke the jurisdicton of this Court under Articles 226 or 227 of the Constitution of India. The contention of the learned Counsel for the petitioner that the petitioner is the local guardian of the injured students or the deceased students as such petitioner is aggrieved person, cannot be accepted for the purposes of the present case. Merely because, one is a student of an Institution, the Institution does not become guardian of the student in respect of any activity which takes place outside the campus of the Institution. Merely because, one is a student of an Institution, the Institution does not become guardian of the student in respect of any activity which takes place outside the campus of the Institution. Can it be said that for any act done by any student outside the campus of the Institution if results into injury or damage to a person, the Institution would also be liable for the act of the student and would be liable for damages on the plea that the Institution is the. guardian of the students enrolled in an Institution. In my opinion, Institutions role is only limited to the imparting of education and maintaining discipline within the campus of the Institution. It cannot be vicariously liable for any act done by the students as that would only be the personal liability of the concerned student. In criminal cases even in revision against the order of acquittal at the instance of a private party (informant) the settled view is that the revisional jurisdiction has to Be exercised only in exceptional and rarest of rare cases where there appears to be manifest error of law resulting into miscarriage of justice. This view finds support from the decisions of the Apex Court in the case of Pakalavati Narayana Gajapathi Ram V/s. Bonapalli Veda Appadu and Anr. -- and Bansi Lal V/s. Laxman Singh -- . It has been held in the said cases that the revisional power should not be exercised merely because the trial Court has mis-appreciated the evidence or has reached to wrong conclusion. Thus, where even the revisional power is very much limited against the order of the acquittal at the instance of the informant, the power under Sec. 226 of the Constitution of India is not to be invoked by a third party who is not an aggrieved person. 12. Considering the entire facts and circumstances of the case, the petitioner does not appear to be aggrieved person by the impugned judgment and he cannot be said to have any locus standi to move this Court for issuance of writ of certiorari for quashing the impugned judgment and order. Further, no case appears to be made out for exercising the jurisdiction of this Court either under Article 226 or Under Article 227 of the Constitution of India. 13. Further, no case appears to be made out for exercising the jurisdiction of this Court either under Article 226 or Under Article 227 of the Constitution of India. 13. In view of discussions made earlier in this order the writ petition is liable to be dismissed and is dismissed hereby.