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2005 DIGILAW 427 (AP)

Chetti Krishna Rao v. State Of A. P.

2005-04-28

T.CH.SURYA RAO

body2005
T. SURYA RAO, J. ( 1 ) INASMUCH as both these petitions emanate from one criminal case in C. C. No. 595 of 1996 on the file of the IX Metropolitan Magistrate, hyderabad, they can be disposed of together. ( 2 ) THE first accused is the petitioner in Criminal Petition No. 4210 of 2003 and a. 4 and A. 5 are the petitioners in Criminal petition No. 5700 of 1999. They invoke inherent jurisdiction of this Court under section 482 of the Code of Criminal procedure (for brevity the Code ) for quashing the proceedings initiated against them in C. C. No. 595 of 1996. ( 3 ) A. 1 was working as a Coach for swimming in Hotel Bhaskara Palace, hyderabad. A. 4 and A. 5 were the Director and Managing Director respectively thereof. A. 2 was the Assistant Manager of Health club and A. 3 was the security guard in the hotel, posted near the swimming pool. On a report given by one Syed Zahed Hussain on 28-4-1994 at 21. 30 hours, the crime in this case was registered under Sections 304-A and 201 of the Indian Penal Code (for brevity the IPC ) by the Sub-Inspector of police, Panjagutta, Hyderabad. Eventually at the culmination of investigation, he laid the charge-sheet before the Court of v Metropolitan Magistrate, Hyderabad, as against A. 1 to A. 3 for the said offences. Cognizance thereof was taken by the learned Magistrate and process was issued, pursuant to which the accused appeared. At that stage, the Inspector, CB-CID took up investigation pursuant to the orders of the Additional Director General of Police, cid, Hyderabad, who filed a petition before the Court requesting to stop the further proceedings in the case. He laid the additional charge-sheet at the end of his investigation against A. 1 to A. 3 under Section 304-A of the IPC alone. The Inspector of Police filed yet another additional charge-sheet whereunder A. 4 and A. 5 were shown as accused for the offences punishable under sections 201, 202 304-A, 336 and 338 of the IPC. He laid the additional charge-sheet at the end of his investigation against A. 1 to A. 3 under Section 304-A of the IPC alone. The Inspector of Police filed yet another additional charge-sheet whereunder A. 4 and A. 5 were shown as accused for the offences punishable under sections 201, 202 304-A, 336 and 338 of the IPC. ( 4 ) THE case against them was that one Syed Alamdar Hussain (hereinafter referred to as the deceased ) along with his two younger brothers Syed Baquer Hussain and Syed Abrar Murtuza Hussain, who are aged 17, 14 and 10 years respectively, went to Bhaskara Palace so as to undergo summer coaching in swimming. The deceased paid the requisite fee in a sum of Rs. 2,700/- towards admission for all the three and after wearing swimming costumes, he approached a. 1 at the pool. He showed the receipt in token of having paid the fee to A. 1 who in turn asked the deceased and his two brothers to take shower bath first before getting into the pool. Accordingly when they came after taking shower bath, A. 1 asked the deceased to get into the pool at 5 feet depth and his younger brothers at 3 feet depth. As per the instructions of A. 1, they got into the pool at respective places. A. 1 instructed the deceased to go to 3 feet depth side of the pool as he was not swimming properly. After giving the said instructions, A. 1 left the spot deliberately without ensuring the deceased s arrival at 3 feet depth side. In the meanwhile, Syed baquer Hussain, younger brother of the deceased noticed that the deceased was drowning in the water. He immediately searched for the Coach to rescue his brother but did not find him nearby. Eventually, he found the Coach near the steps at car parking side and when he made an earnest request to help his brother, A. 1 neglected his professional responsibility and did not swing into action. As a result, the deceased died due to drowning into the swimming pool. A. 4 and A. 5 having obtained the permission from Municipal Corporation of hyderabad to construct a swimming pool in rectangular shape got it constructed in star shape in deviation to the approved plan and permission. As a result, the deceased died due to drowning into the swimming pool. A. 4 and A. 5 having obtained the permission from Municipal Corporation of hyderabad to construct a swimming pool in rectangular shape got it constructed in star shape in deviation to the approved plan and permission. A. 4 and A. 5 failed to take proper care and caution in ensuring the presence of the subordinates and thus failed to discharge their duties which resulted ultimately in the death of the deceased and thus all the accused committed the said offences. ( 5 ) SRI Pattabi, learned Counsel appearing for the petitioners seeks to contend firstly that there has been no prima facie case attracting the offences alleged; secondly having regard to the facts of the case that there has been no obligation on the part of the accused to inform the police since there is no offence; thirdly that there can be no vicarious liability on the part of a. 4 and A. 5; fourthly that at best it is a case of tortious liability; and finally since no permission of the Court was obtained, the additional charges filed by the Investigation officer are bad. ( 6 ) PER contra, Sri K. G. Kannabiran, learned Senior Counsel appearing for the second respondent, represents that it is a case of gross negligence on the part of A. 4 and A. 5 in not ensuring the staff to be presented in not taking sufficient precautions and safety measures and in having got the pool constructed in a star shape instead of rectangular shape and, therefore, all the accused are liable and that it is not a case of vicarious liability on the part of a. 4 and A. 5. The learned Senior Counsel further represents that since there has been no immediate attention at the swimming pool despite the fact that A. 1 was informed about the drowning of the deceased, it is a case of sheer culpable negligence on the part of A. 1. The learned Senior Counsel further represents that since there has been no immediate attention at the swimming pool despite the fact that A. 1 was informed about the drowning of the deceased, it is a case of sheer culpable negligence on the part of A. 1. ( 7 ) WHETHER the acts or omissions on the part of the accused would amount to negligence and that negligence, if eventually is discernable, is a mere negligence which is a tortious act giving rise to civil liability or a culpable negligence entailing penal consequences shall have to be seen in this case inasmuch as the bedrock of the case of the prosecution rests solely on that premise. ( 8 ) CHAPTER XIV of the IPC deals with various offences affecting the public health, safety, convenience, decency and morals. While Sections 268 to 278 thereof deal with public health; Sections 279 to 289 deal with public safety by seeking to prevent negligent conduct, Sections 290 and 291 deal with public nuisance, and Sections 292 to 294-A deal with decency and public morals. We are now concerned with negligent conduct. However, the IPC has not defined the expression "negligence" while providing for the penal consequences for the acts or omissions on the part of any person which endanger human life or public safety. ( 9 ) THE meaning of the expression "negligence" as given in the Text Book of winfield on Tort, 12th Edition, at page 69 may profitably be excerpted hereunder thus: "negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff. Thus its ingredients are; (a) a legal duty on the part of A towards B to exercise care in such conduct of A as falls within the scope of the duty; (b) breach of that duty; (c) consequential damage to B. As we shall see, however, these ingredients cannot always be kept apart, and it has been said that "they are simply three different ways of looking at one and the same problem. " ( 10 ) DR. Glanville Williams in his Text book on Criminal Law, 2nd Edition, at Page 88 defined the expression "negligence" thus: "intention is clearly a mental state, and a type of legal fault. Another type of legal fault not necessarily involving a mental state, is negligence. " ( 10 ) DR. Glanville Williams in his Text book on Criminal Law, 2nd Edition, at Page 88 defined the expression "negligence" thus: "intention is clearly a mental state, and a type of legal fault. Another type of legal fault not necessarily involving a mental state, is negligence. Some accidents (or other events) are so unexpected that when they happen we can only say that they were unavoidable - in legal language, "inevitable". Other accidents happen because of the neglect of some precaution that a reasonable man would have used. (The reasonable man is sometimes, and better, called a prudent man.) such accidents are the products of what we call negligence, or carelessness. Negligence, then, is failure to conform to the standard of care to which it is the defendant s duty to conform. It is failure to behave like a reasonable or prudent man, in circumstances where the law requires such reasonable behaviour. (In this context, of course, as nearly always in law, the word "man" includes "woman".) An employer may for example be negligent as to whether safety precautions are being used by his workpeople. " [emphasis is mine] ( 11 ) RUSSELL in his book "russell on crime 12th Edition, Volume 1, Page 43, defined the expression "negligence" thus:"the word "negligence" has brought great complexity and confusion into English law because it has been employed in different senses. In the law of tort an objective test of liability, the standard of the reasonable man, has been adopted, and (save in certain special cases) the defendant, irrespective of what may actually have been his mental attitude, is held liable to the plaintiff for harm which his conduct has caused him if a reasonable man in his position could be expected to have foreseen and avoided that class of harm. At common law, we are solely concerned with negligence as a subjective state of mind. , and it is necessary therefore to settle upon a clear definition of the word in order to avoid misunderstanding when dealing with the question as to whether it is an attitude of mind which comes within the term metis rea. At common law, we are solely concerned with negligence as a subjective state of mind. , and it is necessary therefore to settle upon a clear definition of the word in order to avoid misunderstanding when dealing with the question as to whether it is an attitude of mind which comes within the term metis rea. Since we have already settled on the meaning to be given to "intention" and to "recklessness", there only remains the case of the man who acts without realising that the particular actus reus in question would or might follow from what he was doing - he did not think of the result which his conduct might produce. This is a case of inadvertence. Whether he is to be blamed for not adverting to it or whether he is not held in fault, the fact remains that he did not advert to it. Negligence therefore in this connection connotes inadvertence, and in the present disquisition for the avoidance of confusion and the preservation of logical argument, the word will be used in this meaning alone. "[emphasis is mine] ( 12 ) UNDER the English Law,"negligence in order to render a person guilty of manslaughter must be more than a matter of compensation between subjects; it must show such disregard for the life and safety of others as to amount to a crime against the state". Vide Halsbury s Laws of England, 3rd edition, Volume 10, Section 1374 at Page 716. ( 13 ) THE law had been codified in india by Lord Maculay as a result of which the Indian Penal Code came to be passed. There are at least 13 Sections in the Indian penal Code dealing with offences due to criminal rashness or negligence. They are sections 279, 280, 283, 284, 285, 286, 287, 288, 289, 304-A, 336, 337 and 338. They all possess one feature in common, namely, that the act is not premeditated and done on purpose to produce the consequence. In all of them, the act is rash, that is to say, an overhasty act done without due deliberation and caution. It produces a result which the offender never expected, and which he may most regret. But he is punished, not for the effect produced which he could not perhaps foresee, but for the manner of doing the act which was fraught with danger. It produces a result which the offender never expected, and which he may most regret. But he is punished, not for the effect produced which he could not perhaps foresee, but for the manner of doing the act which was fraught with danger. The words "rash or negligent" are terms closely allied, but they are nonetheless distinguishable. In cases of negligence, the parry does not perform an act to which he is obliged; he breaks a positive duty, he does not advert to the act which it is his duty to do. In rashness, the party does an act which he is bound to forbear; he breaks a negative duty. Here he adverts to the act but not to the consequences of the act he does. In rash as well as in negligent acts, no thought is bestowed on the consequences. In the one, there is a knowledge of the consequence, but there is over-confidence which makes one believe its happening unlikely. In the other, the consequence is never adverted to. Vide Dr. Sir Hari Singh gour s Penal Law of India, 10th Edition, page 1999 under the caption "doctrine of criminal Negligence". ( 14 ) VARIOUS punishments have been prescribed for the rash and negligent acts. The peal provisions in Chapter XIV used the words "any rash or negligent act"; the disjunctive "or" emphasises the contrast between the two concepts of "rashness" and "negligence" for the purpose of criminal liability under various provisions in the IPC. The words "rash or negligent" are distinguishable and one is exclusive of the other. In the case of negligence, "the party does not do an act which he was bound to do, because he does not advert to it". In the case of rashness, "the mischief, but, in consequence of a mis-supposition begotten by insufficient advertence, he assumes that the mischief will not ensue in the given instance or case. Vide Dr. Sir Hari Singh gour s Penal Law of India, 10th Edition, volume 3, Pages 2716 and 2717. ( 15 ) TURNING to the law on the point, in empress of India v. Idu Beg, ILR 3 All. 776, staight, J. , observed as follows: "criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury but without the intention to case injury, or knowledge that it will probably be caused. 776, staight, J. , observed as follows: "criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury but without the intention to case injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. " [emphasis is mine] in Re Nidamarti Nagabhushanam, 1 MHCR 119, it has been held thus:"negligence may be defined to be the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing something which a prudent and reasonable man would not do. Negligence is not an affirmative word; it is the absence of such skill, care and diligence as it was the duty of the person to bring to the performance of the work which he is said not to have performed. The difference between culpable rashness and culpable negligence is this: culpable rashness is acting with the consciousness that mischievous and illegal consequences may follow, but the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises despite the consciousness. Culpable negligence is acting without the consciousness that illegal and mischievous result will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that, if he had, he would have had the consciousness. The imputability arises from the neglect of the civil duty of circumspection"[emphasis is mine] ( 16 ) IN Vishwanath Vishnu v. The King, air 1948 PC 183, Their Lordships are of opinion that the negligence which constitutes the offence in these circumstances must be of a higher degree than the negligence which gives rise to a claim for compensation in a Civil Court. In Tika Ram v. Rex, AIR 1950 All. In Tika Ram v. Rex, AIR 1950 All. 350, it was held thus:"this section obviously does not apply to cases where there is an intention to cause death or knowledge that the act done will in all probability cause death. It only applies to cases in which, without any such intention or knowledge, death is caused by what is described as a "rash" or "negligence" act. A negligent act is an act done without doing something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or an act which a prudent or reasonable man would not do in the circumstances attending. A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately with the consciouness that the mischievous or illegal consequences may follow, but with a hope that they will not. But, it is not necessary that there should always be this consciousness in a rash act. It has also been observed that in negligence there is no such consciousness of the consequences. This is also untrue as the observation of lord Atkin quoted hereafter will show. Now what may be called a negligent act in civil proceedings is not necessarily so in criminal cases. The principles of liability governing civil actions based on negligence differ from those governing criminal liability in two important particulars; firstly, that negligence in a criminal case must be culpable and gross and not the negligence which is merely based upon an error of judgment, or arises because of defect of intelligence; and secondly, that the principle of the avoidance of liability when there is contributory negligence by the injured person is no defence in criminal law. "[emphasis is mine] in Chaman Lal v. State, AIR 1954 All. 186, it was held thus:"rashness and negligence are not the same things. Mere negligence cannot be construed to mean rashness. There are degrees of negligence and rashness, and, in order to amount to criminal rashness or criminal negligence, one must find that the rashness has been of such degree as to amount to taking hazard knowing that the hazard was of such of a degree that injury was most likely to be occasioned thereby. There are degrees of negligence and rashness, and, in order to amount to criminal rashness or criminal negligence, one must find that the rashness has been of such degree as to amount to taking hazard knowing that the hazard was of such of a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing such an act which recklessness and indifference to the consequences. Criminal negligence is a gross and culpable neglect, that is to say, a failure to exercise that care and failure to take that precaution which, having regard to the circumstances, it was the imperative duty of the individual to take. Culpable rashness is acting with consciousness that mischievous consequences are likely to follow although the individual hopes, even though he hopes sincerely, that such consequences may not follow. The criminality lies in not taking the precautions to prevent the happening of the consequences in the hope that they may not happen. The law does not permit a man to be uncautious on a hope, however earnest or honest that hope may be. "[emphasis is mine] ( 17 ) IN Shiva Ram v. State, AIR 1965 all. 196 at Page 200, the law on the point has been summarised thus:"speaking for myself, I find that the concept of metis rea, and the descriptions given in the two above-mentioned cases of this court, of the states of mind it connotes in section 304-A, I. P. C. , are far more helpful than the notion of degrees of negligence which does not carry us far. Indeed, in defining and explaining that degree of negligence or rashness which distinguishes a criminally culpable wrong from a tort, involving a civil liability only, one is almost compelled to say that criminal negligence or rashness is one which requires a particular mens rea. That mens rea has been, as I have already observed, admirably described in chaman Lai s case and Tika Ram s case in terms more precise and clearer than the words grossly or high degree indicate. Another difficulty I find in reading words such as grossly or highly , before words rash or negligent , in Section 304-A, I. P. C. , is that such qualifying words could easily have been used by the Legislature but are not there. Another difficulty I find in reading words such as grossly or highly , before words rash or negligent , in Section 304-A, I. P. C. , is that such qualifying words could easily have been used by the Legislature but are not there. Applying a well-recognised principle of interpretation, the absence of such qualifying words must be deemed to be intentional. But, applying an equally well-recognised principle, we can read the requirements of mens rea into a provision creating a criminal offence and proceed to specify what this means with reference to a particular provision. I, therefore, prefer to conceive of criminal rashness or negligence in terms of the required mens rea" ( 18 ) IN Kurban Hussein Mohd. Rangawalla v. State of Maharashtra, AIR 1965 SC 1616 , the interpretation of Section 304-A of the IPC came up for consideration. The observations of Sir Lawrence Jenkins in emperor v. Omkar Rampratap, (1902) IV bom. LR 679, to the effect:"to impose criminal liability under section 304-A, I. P. C. , it is necessary that the death should have been the direct result of a rash or negligence act of the accused, and that act must be the proximate and efficient cause without the intervention of another s negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non. "[emphasis is mine] were quoted with approval and it was held that in order that person may be guilty under section 304-A, the rash and negligent act should be the direct or proximate cause of the death. ( 19 ) IN Suleman Rahiman Mulani v. State of Maharashtra, AIR 1968 SC 829 , the Apex Court held in Para 9 thus:"the requirements of this section are that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash or negligent act of the accused. In other words, there must be proof that the rash or negligent act of accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash or negligent act of the accused. " ( 20 ) IN Balchandra Woman Pathe v. State of Maharashtra, (1968) 1 SCR 121, the Apex Court held thus:"the expression criminal negligence" used in Section 304-A of the Indian Penal Code as meaning gross and culpable neglect or failure to exercise the reasonable and proper care, which it was the imperative duty of the accused to have exercised. "[emphasis is mine] ( 21 ) IN Ambalal D. Bhatt v. State of gujarat, AIR 1972 SC 1150 , in Para 8 the apex Court held thus:"it appears to us that in a prosecution for an offence under Section 304-A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. "[emphasis is mine] in the same para, the Apex Court quoted the observations made by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap (supra) thus:"the act causing the deaths must be the causa causans; it is not enough that it may have been the causa sine quo non. "[emphasis is mine] in B. P. Ram v. State of M. P. , 1991 Crl. LJ 473, the Madras High Court held in Para 6 thus:"the "rash or negligent act" referred to in the section means the act which is the immediate cause of death and not any act or omission, which can at most be said to be a remote cause of death. To render a person liable for neglect of duty there must be such a degree of culpability as to amount to gross negligence on his part. "that was a case where a boy surreptitiously entered into swimming pool and drowned. The Honorary Secretary of the Club and chowkidar were sought to be prosecuted under Section 304-A of the IPC. The criminal proceedings were quashed under Section 482 of the Code. "that was a case where a boy surreptitiously entered into swimming pool and drowned. The Honorary Secretary of the Club and chowkidar were sought to be prosecuted under Section 304-A of the IPC. The criminal proceedings were quashed under Section 482 of the Code. ( 22 ) IN Mohammed Aynuddin v. State of a. P. , 2000 (2) ALD (Crl.) 374 (SC) = 2000 scc (Crl.) 1281, the Apex Court in Para 9 held thus:"a rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution. "[emphasis is mine] in Para 8, the Apex Court considered the principle of res ipsa loquitur and held thus:"the principle of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrongdoer. " ( 23 ) IT is eminently discernable from the above that there has been a distinction between a rash act and a negligent act. In the case of a rash act as observed by straight, J. , in Idu Beg s case (supra), the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Again as explained in Nidamarti Nagabhushanam s case (supra) a culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow but with the hope that they will not, and often with the belief that the actor has taken sufficient precautious to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and if he had he would have had the consciousness. The imputability arises from the neglect of the civil duty of circumspection. As between rashness and negligence, rashness is undoubtedly a graver offence. ( 24 ) THE principles of liability governing civil actions based on negligence differ from those governing criminal liability in two important particulars, firstly, that negligence in a criminal case must be culpable and gross and not the negligence which is merely based upon an error or judgment, or arises because of defect of intelligence, and secondly, that the principle of the avoidance of liability when there is contributory negligence by the injured person is no defence in criminal law. Vide Tika Ram s case (supra ). Furthermore, the act complained of attracting the offence of culpable negligence must be the causa causans meaning thereby the immediate cause and it is not enough that it may have been the causa sine qua non meaning thereby a necessary or inevitable cause or a cause without which the effect in question could not have happened. Furthermore, the act complained of attracting the offence of culpable negligence must be the causa causans meaning thereby the immediate cause and it is not enough that it may have been the causa sine qua non meaning thereby a necessary or inevitable cause or a cause without which the effect in question could not have happened. ( 25 ) APPLYING these principles, if the matrix in the instant case is considered, the negligence if at all attributable to A. 4 and a. 5 in having got constructed a swimming pool in deviation to approved plan and permission, is obviously not the proximate cause, but on the other hand too remote to the act complained of. That apart, sufficient precautions seemed to have been taken by them in having appointed a Coach, a security guard and Assistant Manager of Health Club. Furthermore, that negligence assuming for a moment is attributable to them, in my considered view, for the reasons hereinabove discussed, falls far short to attract squarely the offence of culpable negligence. Therefore, a. 4 and A. 5 cannot be fastened with the criminal liability. ( 26 ) HOWEVER, the case of A. 1 appears to be different from that of A. 4 and A. 5. A. 1 is obviously a Coach appointed by the management. The allegation made inter alia in the charge-sheet shows that the deceased showed him at the swimming pool the receipt whereunder he paid an amount of rs. 2,700/- and that A. 1 asked the deceased to get into the swimming pool at a depth of 5 feet and his younger brothers to get into the pool at a depth of 3 feet. At that stage, it is not expected of from A. 1 to have left the swimming pool when the boys were novices and wanted to learn swimming. Further, the allegation furthermore shows when the younger brother of the deceased was in search of A. 1 when the deceased was drowning and eventually having found him at the staircase elsewhere and requested him to come soon, he allegedly did not respond immediately and by the time he came to the swimming pool, the deceased died on account of drowning. From these allegations, if they are ultimately found to be true, negligence can be attributed to A. 1. From these allegations, if they are ultimately found to be true, negligence can be attributed to A. 1. His act in having left the swimming pool while asking the boys to get into the pool and his act in not immediately rushing to the swimming pool on being informed about the fate of the deceased show his indifference towards the safety of the boys. The element of risk that there is likelihood of any amount of danger to the life of the boys due to drowning obviously seems to have been ignored by a. 1. In that view of the matter, the case of a. 1 is separate and distinct than the case of a. 4 and A. 5 in this case. ( 27 ) SRI T. Bali Reddy, learned Senior counsel appearing for the petitioner/a. 1, contends that in the first information report it was mentioned that no Coach was available when the boys got into swimming pool; and that even in the first charge-sheet filed it was alleged that no Coach was available at the swimming pool; and that only when the second charge-sheet was laid by the Inspector of Police, CB-CID, it was alleged that A. 1 was present at the swimming pool and in view of the inconsistent versions, the case of the prosecution as against A. 1 appears to be utter falsehood. True, from a perusal of the first Information Report and the first and second charge-sheets laid in this case the earliest version seems to be that no coach was present and that later investigation would reveal that A. 1 was present at the swimming pool when the boys reached there. It may be mentioned here that a report was given by a person who had no personal knowledge of the occurrence and the crime was registered upon that report. Anyway, probabilities and inconsistencies cannot weigh very much at this stage since it is a matter of shifting of evidence it is exclusive province of the Trial Court to appropriately consider these relevant aspects. Therefore, on this alleged inconsistency, at this stage it cannot be concluded that it is a false version given by the investigating agency in the second charge-sheet. Therefore, it is not expedient at this stage to quash the proceedings against A. 1. Therefore, on this alleged inconsistency, at this stage it cannot be concluded that it is a false version given by the investigating agency in the second charge-sheet. Therefore, it is not expedient at this stage to quash the proceedings against A. 1. The truth or otherwise of the allegations made against him shall have to be enquired into in a full-fledged trial. ( 28 ) THE other offences alleged under sections 201 and 202 of the IPC per se are not attracted in this case, when the conclusion of this Court is that it is not a case of culpable negligence. When the main offence is not made out as discussed hereinabove, there can be no offence- of screening the evidence punishable either under Section 201 or under Section 202 of the IPC insofar as a. 4 and A. 5 are concerned. ( 29 ) THE learned Counsel appearing for the petitioners seeks to contend that the investigation done in this case by CB-CID which laid the second charge-sheet and then the third charge-sheet whereunder A. 4 and a. 5 were sought to be impleaded as against them are vitiated since no permission of the magistrate was obtained. The legal position could be seen from Section 173 (8) of the code which reads as under: 1773. Report of police officer on completion of investigation: (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2 ). ( 30 ) IN Ram Lai Narang v. State (Delhi admn.), (1979) 2 SCC 322 , in Para 15 the apex Court placing reliance upon the oft- quoted Judgment of the Privy Council in king Emperor v. Khwaja Nazir Ahmad (supra) held thus:"the police thus had the statutory right and duty to "register" every information relating to the commission of a cognizable offence. The police also had the statutory right and duty to investigate the facts and circumstances of the case where the commission of a cognizable offence was suspected and to submit the report of such investigation to the magistrate having jurisdiction to take cognizance of the offence upon a police report. These statutory rights and duties of the police were not circumscribed by any power of superintendence or interference in the Magistrate; nor was any sanction required from a Magistrate to empower the police to investigate into a cognizable offence. This position in law was well-established. "of course, the Supreme Court had struck a note of caution at the end of Para 20 thus:"we should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light. " ( 31 ) FOLLOWING the said judgment, the apex Court in Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347 , held in Paras 12 and 13 thus:"12. Sub-section (8) of Section 173 of the code permits further investigation, and even de hors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted. 13. In Ram Lal Narang v. State (Delhi admn.), (supra) it was observed by this court that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. 13. In Ram Lal Narang v. State (Delhi admn.), (supra) it was observed by this court that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the Courts, In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case. " ( 32 ) IN Hemant v. Central Bureau of investigation, 2001 SCC (Crl.) 1280, the apex Court held in Para 16 thus:"although the said sub-section does not, in specific terms, mention about the powers of the Court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the court. "that was a case where the police submitted its final report recommending for dropping of the proceedings. It was held that the course open to the Magistrate in such eventuality would be to order further investigation to be made by the police besides other options available to him viz. , to accept the report, to disagree with the report and to take cognizance of the offence on the said report. The said Judgment is of no help to buttress the proposition sought to be canvassed in the instant case. , to accept the report, to disagree with the report and to take cognizance of the offence on the said report. The said Judgment is of no help to buttress the proposition sought to be canvassed in the instant case. ( 33 ) THERE is no provision in the Code, which requires a permission of the Magistrate to be obtained by the investigating agency before making further investigation after having laid the charge-sheet at the culmination of investigation. On the other hand, sub-section (8) of Section 173 of the code posits that further investigation can be made by the investigating agency and the provision does not require a previous permission of the Magistrate. However the apex Court in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, held that it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation. The position seems to be obvious. Notwithstanding the fact that the provision germane in the context for consideration does not explicitly obligate the police to obtain necessary permission from the Magistrate for making further investigation, having regard to the fact that already the Court has taken cognizance of the offence on the charge-sheet filed by the investigating agency, the agency before making further investigation in this case is expected to obtain formal permission from the Magistrate in the interest of purity of the administration of criminal justice and in the interest of the comity of various agencies and institutions entrusted with different stages of such administration. The question germane for consideration is the effect of failure to obtain necessary permission from the Magistrate by the investigating agency before making further investigation and filing a supplement charge- sheet. Illegality, if any, in the investigation, in my considered view, may not affect the merits of the case in the final analysis. It is for the Court to convince from the facts in a given case about the truth or otherwise of the charge levelled against the accused. Illegality, if any, in the investigation, in my considered view, may not affect the merits of the case in the final analysis. It is for the Court to convince from the facts in a given case about the truth or otherwise of the charge levelled against the accused. Anyway, such an illegality has to be considered by the Trial Court while appreciating the evidence let in on either side in a given case, so as to see whether it affects the merits of the case or not. But, in my considered view, that illegality, if any, cannot be the ground to quash the proceedings at the threshold. ( 34 ) THE inherent jurisdiction of this court which is extraordinary could be exercised under Section 482 of the Code where the fact situation warrants in a given case only when no offence is made out on a perusal of the allegations contained either in the complaint or in the charge- sheet filed by the police, as the case may be. Needless to dwell on the point since it is now too well settled. It is to be exercised with all circumspection and rarely, only when the fact situation warrants in a given case. ( 35 ) IT may be observed here that the observations made by this Court inter alia in the order supra shall not affect the merits of the case and the Court below without being prejudiced in any manner by any of the observations made by this Court shall proceed to conduct the trial and dispose of the case against the other accused independently and according to the merits of the case. ( 36 ) IN the result, the Criminal Petition no. 5700 of 1999 is allowed and Criminal petition No. 4210 of 2003 is dismissed.