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2003 DIGILAW 1280 (ALL)

ASHOK CHATURVEDI, CHAIRMAN v. STATE OF U. P.

2003-05-23

R.K.DASH

body2003
R. K. DASH, J. ( 1 ) NARESH Kumar Shukla (hereinafter referred to as the deceased), a chemical engineer joined as a trainee on 28. 4. 1996 with M/s. Flex Industries Limited, Noida in the newly created district of Gautam budh Nagar. He in course of employment in the industry met with an accident resulting in his death. Respondent no. 2, father of the deceased filed a complaint before the Chief Judicial Magistrate, ghaziabad alleging that the petitioners being the officials of the said industry had assigned creation of a plant imported from france and asked the deceased to work over time. After the tragic incident the complainant visited the premises of the industry and came to know that heavy steel roller which was kept at a height of 1. 5 meter supported by two wooden stakes on both sides suddenly feel down on the deceased who was sitting on the floor and making some adjustment of the bracket of the roller. The deceased was immediately rushed to a Nur Singh Home where he breathed his last. Further case of the complaint is that on being asked as to how the deceased was asked to sit and work on a small and narrow place, accused Anil Gupta and Mahabir Saran confessed that the accident took place due to rash and negligent act of all the accused persons and requested to pardon them. The complainant approached the district Magistrate, Ghaziabad and requested the police to enquire into the incident but it was to of no effect. It was thereafter that he moved the court by filing complaint. Learned Magistrate upon examination of the complainant and the witness produced by him took cognizance of the offence under Section 304-A. I. P. C. and Summoned all the accused persons. Thereupon, the accused persons filed a petition to recall the order of cognizance and the same having been rejected, they approached the Sessions Court in revision which also did not yield desired result. Aggrieved by the order of the revisional court, they filed present petition under section 482 Cr. P. C. seeking quashing of the proceedings in the com[plaint case bearing no. 627 of 1996 pending in the court of Chief Judicial Magistrate, ghaziabad. Aggrieved by the order of the revisional court, they filed present petition under section 482 Cr. P. C. seeking quashing of the proceedings in the com[plaint case bearing no. 627 of 1996 pending in the court of Chief Judicial Magistrate, ghaziabad. ( 2 ) SRI Gopal S. Chaturvedi, learned senior Counsel appearing for the petitioner contended that even if the allegations made in the complaint are taken in entirety and on their face value do not make out any offence under section 304-A I. P. C. and since the deceased was a young engineer and met with tragic death due to accident in the factory, the learned Magistrate made emotional approach to the case and without there being sufficient ground for proceeding against the accused persons took cognizance of the aforesaid offence and issued process for their appearance. It is true, while taking cognizance of the offence, the Magistrate is not required to give reasons, but his order must show that he applied judicial mind to fined if prima-facie case is disclosed from the averments made in the complaint and the statements of the complainant and his witness if any, for proceeding against the accused. In the case on hand, the impugned order, annexure-4 does not reveal that the learned Magistrate made a judicial approach to the case and was satisfied from the available materials that prima-facie case under Section 304-A I. P. C. is made out. In that view of the matter, it was urged that the criminal complaint being the outcome of anger of the complainant, order of the Magistrate taking cognizance of the offence under section 304-A I. P. C. and consequent order issuing notice to the accused persons should be quashed. Per contra, learned counsel appearing for the complainant would strenuously urge that law does not mandate that the magistrate should pass a detailed order about his satisfaction before taking cognizance of the offence and therefore, the impugned summoning order, annexure-4 which is the based on satisfaction of judicial conscience cannot be scraped or rejected. Per contra, learned counsel appearing for the complainant would strenuously urge that law does not mandate that the magistrate should pass a detailed order about his satisfaction before taking cognizance of the offence and therefore, the impugned summoning order, annexure-4 which is the based on satisfaction of judicial conscience cannot be scraped or rejected. As to the factual aspect of the case, he submitted that since death of the deceased was as a result of the accident, occurred due to rash or negligent act of the accused persons and at this stage when cognizance of the offence has only been taken, the Court should be loathe to interfere with the impugned order and bring the criminal proceeding to a halt in exercise of inherent power. ( 3 ) BEFORE adverting to the arguments advanced by the counsel appearing for the parties, at the outset it is desirable to decide the question, though not raised by the complainant whether the petitioners, whose revision against the order of the magistrate taking cognizance of the offence having been dismissed in revision can move this court under section 482 Cr. P. C. Judicial opinion of various High courts on this aspect is not unanimous. Some say that in view of the legislative intention enacting Section 397 (3) second revision in the garb of a petition under section 482 Cr. P. C. is not maintainable. Others have taken contrary view observing that where the order of the sub-ordinate court is wrong and illegal and if allowed to remain grave injustice would ensue, the Court for the ends of justice should invoke inherent power and quash the said order. Experience shows that sometimes Sessions Judges order is wrong, illegal and perverse. So, if the said order is not interfered with when challenged in view of the embargo placed by Section 397 (3), it will cause irreparable injury to the person aggrieved and consequently justice will be a casualty. The question has been settled at rest by the Supreme Court in the case of krishnan Vs Krishnaveni, AIR 1997 SC 987 = 1997 Cr. The question has been settled at rest by the Supreme Court in the case of krishnan Vs Krishnaveni, AIR 1997 SC 987 = 1997 Cr. L. J. 1519 Where the court observed thus: "ordinarily, when revision has been barred by Section 397 (3) of the Code, a person -accused/complainant-cannot be allowed to take recourse to the revision to the High Court under Section 397 (1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397 (3) or Section 397 (2) of the Code. It is seen that the high Court has suo moto power under section 401 and continuous supervisory jurisdiction under Section 483 of the code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice of order passed or sentence imposed by the magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensure. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397 (1)read with Section 401 of the Code. . . . . . " ( 4 ) SO far the present is concerned, for the reasons to follow I would old that notwithstanding the bar of second revision as envisaged in Section 397 (3), it is a fit case where this Court in exercise of inherent power should upset the order of the Magistrate taking cognizance of the offence under Section 304-A I. P. C. and quash the criminal proceedings. ( 5 ) THE grievance of the petitioners in the present case is that since the facts narrated in the complaint do not constitute any offence, more so an offence under section 304-A I. P. C. and this aspect of the matter having not been considered both by the Magistrate as well as the revisional court, this Court would be well within its jurisdiction to consider the same and quash the impugned order consequent criminal proceedings in exercise of inherent power. ( 6 ) INHERENT powers are in the nature of extra- ordinary power to be used sparingly for achieving the object as mentioned in Section 482 Cr. P. C. It is the settled position of law that such power should be exercised sparingly and in rarest of rare case. On a bare reading of the FIR or the complaint where the Court finds that no offence is made out and continuance of the criminal proceeding will cause unnecessary harassment to the accused, it would be justified to exercise inherent power and bring the proceeding to a close. Reference in this context may be made to a decision of the Supreme court in the case of State of Bihar Vs murad Ali Khan, 1994 (4) SCC 655 where the Court observed: "it is trite that jurisdiction under section 482 Cr. P. C. , which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court Should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. In exercising that jurisdiction the High Court Should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet do not in law constitute or spell out any offence an that resort to criminal proceeding would, in the circumstances, amount to an abuse of the process of the court or not. " ( 7 ) KEEPING in mind the aforesaid dictum of law, it is necessary to elude to the allegations made in the complaint petition. Admittedly, the complainant was not an witness to the incident. As alleged, he alongwith others visited the site where the accident occurred. In paragraph 12 of the complaint petition, it is stated: "there the complainant and his companions were shown a steel roller which was kept at height of 1. 5 meter supported by two wooden stakes on both sides the weight of that roller as mention on is 1. 8 tones. There was no blood spot on the site. There was no crack or damage on the floor. The entire site of accident was cleaned and the entire evidence of the accident were removed/washed away the accused persons. That on the site the accused no. 5 and 7 Mr. Gupta pointed towards the same roller which was kept on wooden stakes and its weight was 1. 8 tones. Further Mr. Gupta informed that Naresh was sitting on the floor and making some adjustments relating to mounting of the roller on the left bracket. He said that the bracket on nareshs left side broke down and pointed his finger towards a broken steel bracket which appeared to have been welded and fabricated out of the solid steel bars. The complainant and his companions notices that the broken bracket had a welded joint which appeared to be a fresh welding. As per Mr. He said that the bracket on nareshs left side broke down and pointed his finger towards a broken steel bracket which appeared to have been welded and fabricated out of the solid steel bars. The complainant and his companions notices that the broken bracket had a welded joint which appeared to be a fresh welding. As per Mr. Gupta the body of Late Naresh was crushed by this heavy steel roller which fell down as the left bracket broke down on which this roller was kept. . . " ( 8 ) EVEN assuming that the aforesaid allegations are true, yet it cannot be said by any stretch of imagination that the accident and consequent death of the deceased was as result of any rash or negligent act of the accused persons. To bring a case within the purview of Section 304-A I. P. C. , it must be shown that the act was a rash or negligent. An act would be construed rush, if is done without due care or caution. negligent act means, an act done without exercise of reasonable and proper care and precaution to guard against any injury. ( 9 ) IN the case on hand, the case as narrated in the complaint does not remotely suggest that the accused person had neglected their duty and failed to take proper care and precaution in the factory premises resulting in the accident. Had the learned Magistrate taken care to fined out from the complaint petition as well as the statement of the complainant as to if a prima-facie offence under Section 304-A i. P. C. is made out, he would have been slow to take cognizance of the said offence and issued process against the accused persons. ( 10 ) IT is the right of everyone to bering an offender to justice; equally it is right of every person that he is not unnecessarily harassed by false and frivolous persecution. It cannot be lost sight of that a person passes thought mental agony when asked to face a criminal charge and if the offence is non-bail able, he is sent to prison till bail granted by the court. Besides, long drawn adjudicatory process makes him financially cripple which ultimately affects is in jeopardy, the duty of the court becomes onerous. As has been well said, judicial process should not be an instrument of oppression or needless harassment. Besides, long drawn adjudicatory process makes him financially cripple which ultimately affects is in jeopardy, the duty of the court becomes onerous. As has been well said, judicial process should not be an instrument of oppression or needless harassment. ( 11 ) LAW confers a right on a person wronged either to approach the police or file a complaint in the court seeking legal action the person who violated law. When a complaint is filed, the Magistrate on examining the complainant and his witnesses, if any present, should be satisfied whether there is sufficient ground for proceeding against the person complained of. It is true, law does not envisage that the Magistrate should record the reasons of his satisfaction before issuing process, but scrutiny of the order must show that he applied judicial mind to find whether prima-facie case is made out of the complaint or other materials for proceeding against the accused. In this context reference may be made to a decision of the Supreme Court in the case of Punjab National Bank Vs. Surendra prasad Sinha, AIR 992 SC 1815 where the Court observed "there lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for only on satisfying that the law costs liability or creates offence against the juristic person or the person impleaded, there only process would be issued. At that stage the Court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complainant as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime object of criminal justice but it would not be the means to wreak personal vengeance xxxxxxx" ( 12 ) SIMILAR view was also taken in the later decision in the case of KM. Vindication of majesty of justice and maintenance of law and order in the society are the prime object of criminal justice but it would not be the means to wreak personal vengeance xxxxxxx" ( 12 ) SIMILAR view was also taken in the later decision in the case of KM. Mathew vs. K. A. Abraham, (2002) 6 SCC 670 coming to the case on hand, the impugned order which is cryptic in nature does not show the required satisfaction of the learned Magistrate while taking cognizance of the offence under Section 304-A I. P. C. ( 13 ) REGARD being had to the facts and circumstances of the case as discussed above, I am of the considered opinion that there being no case under section 304-A I. P. C. , the order of the magistrate taking cognizance of the said offence is illegal and unsustainable in law. In such view of the matter, the said order and the consequent criminal proceeding in complaint case no. 627 of 1996 are quashed. However, when the complainant has lost his son, a young engineer, which loss cannot be compensated by any means, in my opinion, for doing complete justice, the accused persons, petitioners here-in should pay a sum of rupees five lacs to the complainant as a solace. It is accordingly, so ordered. The amount shall be paid within four weeks hence. In the event, payment is not made within the stipulated time, on approach being made by the complainant, the District magistrate, Gautam Budh Nagar shall recover the said amount as arrear of land revenue and pay the same to him. ( 14 ) THE criminal misc. application thus succeeds and is allowed with above observation and direction.