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Madhya Pradesh High Court · body

2013 DIGILAW 50 (MP)

Shailendra Kumar Sharma v. State of M. P.

2013-01-07

ANIL SHARMA

body2013
ORDER 1. Petitioner has filed copies of challan papers, therefore, heard finally. 2. Petitioner has filed this petition under section 482 of Cr.PC for quashing order dated 19.7.2012 passed by learned JMFC, Gwalior, in Criminal Case No. 4323/12 directing the S.H.O. Bahodapur to furnish information with regard to the contractor of company of which petitioner is an employee for impleading contractor as accused. 3. Challan has been filed against the petitioner in Crime No. 226/12 of Police Station Bahodapur, district Gwalior, M.P. for the offence punishable under section 304A IPC. Learned trial Court by impugned order held that the company which was performing the work of electrification and maintenance and according to agreement contractor is also responsible for the death of victim, therefore, the contractor, Incharge of work is also to be impleaded as accused. Since the name of contractor is not clear from the copy of contractor, therefore, learned trial Court has directed the S.H.O., Police Station Bahodapur to make an enquiry to ascertain the name of contractor for issuing show cause notice to him for his impleadment as accused. 4. Learned counsel for the petitioner has drawn attention towards the Final Report and submitted that the copy of agreement for contract is not part of the challan and the learned trial Court cannot consider a document which is not a part of challan for impleading any one as additional accused. Learned counsel for the petitioner has also drawn attention towards the provisions of section 319 of Cr.PC which require evidence against the accused to be impleaded under section 319 of the Cr.PC . Section 319 of Cr.PC is reproduced below:- “319. Power to proceed against other persons appearing to be guilty of offence -- (1) Where, in the course of my inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2)Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (2)Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not trader arrest or upon a summon, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under subsection (1) then - (a) The proceedings in respect of such person shall be commenced afresh, and witnesses reheard. (b) Subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” 5. Learned Public Prosecutor has submitted that the contractor of the company of accused is also responsible for the negligence and the learned trial Court has only ordered to issue show cause notice, therefore, such order cannot be quashed under section 482 of CrPC . 6. In reply, learned counsel for the petitioner has submitted that since the order passed by the learned trial Court is against the provisions of law and Court cannot consider a document which is not a part of the challan, therefore, an illegal order can be quashed suo moto by the Court in the interest of justice under section 482 of CrPC if it is brought to the knowledge of this Court. 7. The Police has filed challan against the petitioner after enquiry for his rash and negligence act resulting in death of victim who was lineman. There is no evidence that contractor himself was personally liable for rash and negligence act resulting in death of victim. In criminal proceedings especially where an offence is punishable under section 304A of IPC, the contractor cannot be implead as accused of principles of vicarious liability. Further, learned trial Court has not justified in issuing show cause notice to the contractor without any evidence connecting him with a crime. The question of impleading additional accused can only be considered after recording of evidence and if there is any evidence against any person other than accused before it. Further, learned trial Court has not justified in issuing show cause notice to the contractor without any evidence connecting him with a crime. The question of impleading additional accused can only be considered after recording of evidence and if there is any evidence against any person other than accused before it. Therefore, the order passed by the learned trial Court for issuing show cause notice to the contractor for impleading him as additional accused is at present only a misuse of power vested in the trial Court. Therefore, petition is allowed. The impugned order dated 19.7.2012 passed in Criminal Case No. 4323/12 by J.M.F.C., Gwalior, for issuing show cause notice to the contractor is hereby quashed.