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2016 DIGILAW 1136 (HP)

Gulshan Tyagi v. State of H. P.

2016-06-23

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. The present petition has been preferred under Section 482 of the Code of Criminal Procedure for quashing of charge-sheet dated 6.04.2010 under Sections 336, 338, and 304-A IPC in Criminal Case No. 184-1-2010, titled as State Vs. Dharmender Gandhi & another and consequential proceedings pending adjudication before the Court of learned JMIC-II, Amb, District Una, H.P. 2. Key facts necessary for the adjudication of this petition are that the F.I.R. No.137/2009 was registered on 5.11.2009. It is averred in the petition that the In-charge of HPSEB Sub-Station at Gagret and representatives of the HPSEB Contractor M/S Angelique International Ltd. (“AIL” for short) were responsible for liaison with the In-Charge of Sub- Station for providing safe testing environment to the petitioner who was representative engineer of the supplier sub-contractor M/S AREVA T & D, India (“Areva”, for short). The petitioner was checking the automation systems, namely, Remote Terminal Unit and Local Data Monitoring System (LDMS) software (“SCADA System”, for short) installed by Areva in terms of purchase order dated 16.06.2008. The petitioner, is a Software Engineer and employee of Areva. The schedule of testing was fixed by AIL as per confirmation given by HPSEB officials. The official date i.e. 2.11.2009 was later on changed to 4.11.2009. The petitioner tested the SCADA system at Gagret Control Room and the same was found to be working in the satisfactory condition. The testing of Amb Control Room was scheduled for 5.11.2009. The petitioner visited the Control Room located at Amb along with the representative of AIL. He demonstrated the functioning of SCADA system on the instructions received from AIL representatives. The petitioner switched on the system and he was not aware that the lineman of the HPSEB has climbed the pole/tower in the sub-station at a distance of 15 Kms from the site. However, the fact of the matter is that when the SCADA System was switched on, the lineman of HPSEB who was repairing the line came in contact with live wire and died. 3. Mr. Rajnish Maniktala, Advocate for the petitioner has vehemently argued that his client has operated the system on the guidance and assurance of HPSEB and AIL. Mr. Rajnish Maniktala, Advocate has also argued that the name of his client has been included in the chargesheet after the site was gheroed by the people. 3. Mr. Rajnish Maniktala, Advocate for the petitioner has vehemently argued that his client has operated the system on the guidance and assurance of HPSEB and AIL. Mr. Rajnish Maniktala, Advocate has also argued that the name of his client has been included in the chargesheet after the site was gheroed by the people. He has also vehemently argued that it was for the HPSEB officials to take due care that on the sanctioned scheduled date of testing of SCADA system, no lineman should have climbed on the pole or tower. Mr. Parmod Thakur, Addl. Advocate General for the State has argued that the lineman has died due to the negligent act of the petitioner. 4. I have heard learned counsel for both the sides and have also gone through the records carefully. 5. It was for the petitioner to ensure that before he started the testing of SCADA system, the HPSEB has taken all the necessary precautions. He knew that once the SCADA system was put into operation, the electricity would start flowing. 6. Now, as far as the plea of Mr. Rajnish Maniktala for summoning of Sub-Station Order-Book and Sub-Station Log Sheet is concerned, it shall be open to the petitioner to summon the same during the course of the trial. The petitioner has not taken due care and precaution while switching on the system. The petitioner cannot be permitted to blame other agencies for his own negligent act. 7. On the plain reading of the contents of the charge-sheet, it demonstrates prima-facie the commission of offence by the petitioner under Sections 336, 338 and 304-A IPC. It cannot be said at this stage that the possibility of conviction of the petitioner in this case is remote or bleak. The Court while examining the petition under Section 482 Cr.P.C. has to see whether the uncontroverted allegations made in the complaint prima-facie establish the case or not. 8. Their Lordships of the Hon'ble Supreme Court in Amit Kapoor v. Ramesh Chander reported in (2012) 9 SCC 460 , have held that the power under Section 482 Cr.P.C. cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction. Their lordships have also held that mere existence of a civil dispute between the parties would not by itself alter the status of the allegations constituting the criminal offence. Their lordships have held as under: (25) Having examined the inter-relationship of these two very significant provisions of the Code, let us now examine the scope of interference under any of these provisions in relation to quashing the charge. We have already indicated above that framing of charge is the first major step in a criminal trial where the Court is expected to apply its mind to the entire record and documents placed therewith before the Court. Taking cognizance of an offence has been stated to necessitate an application of mind by the Court but framing of charge is a major event where the Court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cases where the Court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case. In a case where, upon considering the record of the case and documents submitted before it, the Court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there is a bar and there exists no ground to proceed against the accused, the Court may discharge the accused. There can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal offence with which the accused is charged. In such cases, the Court may discharge him or quash the proceedings in exercise of its powers under these two provisions. (26) This further raises a question as to the wrongs which become actionable in accordance with law. In such cases, the Court may discharge him or quash the proceedings in exercise of its powers under these two provisions. (26) This further raises a question as to the wrongs which become actionable in accordance with law. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction. In the case of Indian Oil Corporation v. NEPC India Ltd. & Ors., 2006 (6) SCC 736 , this Court took the similar view and upheld the order of the High Court declining to quash the criminal proceedings because a civil contract between the parties was pending. (27) Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be : 27.1 Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2 The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3 The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4 Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5 Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7 The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8 Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence. Even in such cases, the Court would not embark upon the critical analysis of the evidence. 27.9 Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10. It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution. 27.13 Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14 Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15 Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. 9. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. 9. Their lordships of the Hon’ble Supreme Court in the case of State of M.P. v. Surendra Kori, reported in (2012) 10 SCC 155 , have held that the High Court, under Section 482 CrPC, should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material. It has been held as follows:- “14. The High Court in exercise of its powers under Section 482 CrPC does not function as a Court of Appeal or Revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 CrPC, though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 CrPC, should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material.” 10. Accordingly, there is no merit in this petition, the same is dismissed.