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2007 DIGILAW 1809 (PAT)

Brahmdeo Prasad v. State Of Bihar

2007-11-23

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. Through this application the sole petitioner has prayed for the quashing of the entire criminal proceeding arising out of Giriyak P.S. Case No. 116 of 2004, G.R. No. 2026 of 2004 including the order dated 8.9.2005 passed by the learned Chief Judicial Magistrate, Nalanda at Biharsharif in the aforesaid case whereunder cognizance u/s. 304 of the Indian Penal Code has been taken. 2. It appears that on 7.11.2004, one Suresh Prasad Singh submitted the written report before the Officer Incharge Giriyak Police Station alleging therein that earlier that day at around 1.0.50 A.M. two minors, Nitish Kumar alias Gorey Lal, the grand son of his brother and Chandan Kumar alias Golu, were going from their house to their garden situated in Jiyan Khandha and en route when they reached near Burhiya Bagh Khandha suddenly the electric wire overhead carrying 11000 volts snapped and fell over on the two minors and as a result thereof they died immediately. On the basis of the aforesaid written report, Giriyak P.S. Case No. 116 of 2004 was registered under Ss. 287 and 304A of the Indian Penal Code against unknown electric mechanics and after due investigation the Investigating Officer finding no clue submitted a final form dated 30.4.2005. 3. It further appears that on 3.6.2005, a Protest-cum-Complaint Petition was filed by the informant in the Court of the learned Chief Judicial Magistrate, Nalanda at Biharsharif impleading the petitioner and three others inter alia alleging that 5 days prior to the occurrence there had been some interruption and sparking in the 11000 volts power line passing through Burhiya Bagh Khandha which the informant had reported to the people in Grid as also the Electrical S.D.O., Rajgir on the day of the occurrence when the aforesaid high voltage electric power line snapped and fell on the two minor children killing them. It was alleged that as soon as the power line snapped and fell on the two minors immediate telephonic message was sent to the Grid as also the accused persons about the occurrence but notwithstanding receipt of the telephonic message the power supply line was not disconnected and due to this negligence the two minors had lost their lives. It was alleged that as soon as the power line snapped and fell on the two minors immediate telephonic message was sent to the Grid as also the accused persons about the occurrence but notwithstanding receipt of the telephonic message the power supply line was not disconnected and due to this negligence the two minors had lost their lives. It has also been alleged that the Investigating Officer in order to favour the accused persons had purposely suppressed the truth and had not recorded the statement of such witnesses who had seen the occurrence as also the persons who had informed the Grid. It appears that notwithstanding the Protest-cum-Complaint Petition the learned Chief Judicial Magistrate on 29.9.2005 differed with the final form submitted by the Investigating Officer and took cognizance under Ss. 304 of the Indian Penal Code only against the petitioner and another. 4. It has been submitted on behalf of the petitioner that he is innocent and was hot present at the place of occurrence on the alleged date and time of the occurrence and that he is posted as a Helper in the Power Sub Station, Raitar whereas the occurrence took place in the Burhiya Bagh Khandha near Village-Puri which is at a distance of 10 Kilometers from the place of posting of the petitioner. It has also been submitted that the learned Magistrate has taken cognizance in a routine manner without any cogent material available in the records and although he has relied on the paragraphs-8, 9, 10 and 21 of the case diary, there is, in fact, nothing in those paragraphs to implicate the petitioner in this case. 5. The submission advanced by the learned counsel for the petitioner has been vigorously opposed by the learned counsel for the Opposite Party No. 2 who submitted that there was no illegality in the learned Chief Judicial Magistrate differing with the final form submitted by the police as he found sufficient materials in the case diary to make out a prima facie case against the petitioner and another. It was also sought to be submitted that what the learned counsel for the petitioner contended before this Court were all matters of his defence which could not be looked into by the Court exercising power u/s. 482 of the Code of Criminal Procedure. 6. It was also sought to be submitted that what the learned counsel for the petitioner contended before this Court were all matters of his defence which could not be looked into by the Court exercising power u/s. 482 of the Code of Criminal Procedure. 6. Section 304 of the Indian Penal Code postulates two situations when the offence can be said to have been made out, namely, (1) if the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death and (2) if the act is done with knowledge that it is likely to cause death but without intention to cause death or such bodily injury as is likely to cause death and different punishments are provided for them. 7. In the instant case, the death of the two minors were caused by accidental snapping of the over head high voltage electric supply lines and the petitioner in no way could be said to have caused such snapping of the electric supply line. The act apart from not being attributable to the petitioner also could not be said to have been premeditated. This fact takes the matter out of the ambit of Part-I as also Part-II of Sec. 304 of the Indian Penal Code. 8. Due regard being had to the facts and the circumstances of the case, the prosecution of the petitioner would be an abuse of the process of the Court which cannot be sustained in the eyes of law. 9. Accordingly, the taking of cognizance, so far as the petitioner is concerned, is hereby quashed and the application is allowed.