ORDER : By way of this petition, petitioner has prayed for following substantive relief:- “It is, therefore, respectfully prayed that the present petition may kindly be allowed and the FIR bearing number 11/2019, lodged at Police Station Bhawanagar/Nichar, District Kinnaur, dated 18.02.2019 against the present petitioner and the subsequent proceedings pending before Ld. Chief Judicial Magistrate, Kinnaur bearing No. 44/2019 may kindly be quashed and set aside in the interest of justice and fair play.” 2. Brief facts necessary for adjudication of the petition are that the Executive Engineer, National Highway Division, HPPWD, Rampur Bushahr, vide award letter dated 09.02.2018, had awarded the work of widening to two lanes with/without Geometrical Improvement in Km. 322/0 to 329/0 of NH-22 (New NH-05) in the State of Himachal Pradesh. Petitioner is Contractor by profession. The work awarded to petitioner was in District Kinnaur, Himachal Pradesh. 3. An FIR bearing No. 11, dated 18.02.2019, was registered at Police Station Bhawanagar, District Kinnaur, H.P., on the complaint of some of the residents of Village and Post Office Nichar, District Kinnaur, H.P. It was alleged in the complaint that the complainants were owners of orchards and agricultural lands near Nathpa. On 10.02.2019 and 11.02.2019, their orchards and fields were extensively damaged due to the blasting work carried out by respondent on the aforesaid dates. There were huge landslides and the complainants had been divested of their valuable orchards and lands. The reason for such damage was alleged to be negligence of Singla Company engaged in widening of National Highway. As per complainants, they had been requesting the contractor to carry out work carefully, but ignoring their requests, excessive and extensive blasting was carried out, resulting in loss to the complainants. 4. Investigation was carried out. Statements of the complainants and other persons, who had suffered losses on account of landslides were recorded under Section 161 of the Code of Criminal Procedure (for short “Cr.P.C.). 4. Investigation was carried out. Statements of the complainants and other persons, who had suffered losses on account of landslides were recorded under Section 161 of the Code of Criminal Procedure (for short “Cr.P.C.). In addition, evidence with respect to quantum of damages caused to the residents of the area was also collected and in that regard statement of Shri Roshan Lal, Tehsildar Bhawanagar, was also recorded under Section 161 of the Cr.P.C. Additionally, statement under Section 161 of the Cr.P.C., of Gian Chand, Assistant Engineer, National Highway was also recorded to the effect that the widening work of NH-5 was being carried out by Amit Singla (petitioner), in pursuance to the work awarded to him by the department. Blasting was being done. He also handed over to the investigating officer the records with respect to the issuance of explosive material to the contractor w.e.f. 01.02.2019 to 28.02.2019. It was also recorded in the statement of Gian Chand that had the blasting not been done neither the road would have been blocked nor the land belonging to people had suffered damage. He further opined that the cause of damage appeared to be excessive blasting by the contractor. 5. Investigating agency also took into possession following documents: (i) Report of Committee constituted to assess losses suffered by the residents of the area; (ii) The valuation of fruit plants damaged due to landslides; (iii) Proceedings of the meeting held on 07.12.2018 under the Chairmanship of SDO (Civil), Nichar at Bhawanagar, in respect to the damages suffered by the residents; (iv) Extract of the register showing issuance of blasting material to the contractor; (v) Report submitted by the Assistant Engineer, National Highway, Sub Division, HPPWD Nigulsari (at Solding) and; (vi) Permission granted by District Magistrate, Kinnaur on 11.09.2018, authorising use of explosive for the execution of road widening work. 6. On completion of investigation, the investigating agency presented report under Section 173 of the Code of Criminal Procedure (for short “Cr.P.C.”), recommending prosecution against petitioner under Sections 336 and 427 of the IPC. It is alleged that petitioner used excessive explosive and thereby induced landslides causing damage to the properties of complainants. 7. I have heard Mr. Sharwan Dogra, learned Senior Advocate with Shri Pranay Pratap Singh, Advocate, for the petitioner and Mr. Desh Raj Thakur, learned Additional Advocate General for the respondent/State and have also gone through the record carefully. 8. It is alleged that petitioner used excessive explosive and thereby induced landslides causing damage to the properties of complainants. 7. I have heard Mr. Sharwan Dogra, learned Senior Advocate with Shri Pranay Pratap Singh, Advocate, for the petitioner and Mr. Desh Raj Thakur, learned Additional Advocate General for the respondent/State and have also gone through the record carefully. 8. Shri Sharwan Dogra, learned Senior Advocate has contended that there was no allegation that petitioner was present on spot at the time of accident. As per him, in absence of petitioner on spot, no act of rashness and negligence could be attributed to him as he was not directly responsible for the alleged damage. Shri Dogra further contended that there is no legal evidence on record to suggest even remote connection of petitioner with the alleged incident. On the strength of such submission, he further submitted that the cognizance taken by learned Chief Judicial Magistrate, Kinnaur at Reckong Peo, H.P. in Case No. 44 of 2019, is bad in law. 9. On the other hand, Shri Desh Raj Thakur, learned Additional Advocate General, has contended that there is sufficient material on record to proceed against the petitioner. He submitted that the petitioner was the contractor and overall Incharge of the work and he cannot evade his responsibility. 10. The perusal of the investigation record and report under Section 173 of the Cr.P.C. submitted by the investigating agency, reveal that the reliance has been placed on the facts disclosed by complainants and other residents of the area who have alleged damage to their orchards and fields. 11. From the statements of all the witnesses recorded under Section 161 Cr.P.C., it can be inferred that petitioner was awarded the work of widening the NH-5 between Km 322/0 to 329/0. Explosive was being used to blast the hard strata. According to damage sufferers, the damage to their properties was caused on account of landslides induced by excessive use of explosive. 12. Prosecution of petitioner is being done for offences under sections 336 and 427 IPC. 13. Section 336 of the IPC reads as under :- “336. Explosive was being used to blast the hard strata. According to damage sufferers, the damage to their properties was caused on account of landslides induced by excessive use of explosive. 12. Prosecution of petitioner is being done for offences under sections 336 and 427 IPC. 13. Section 336 of the IPC reads as under :- “336. Act endangering life or personal safety of others.—Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both.” 14. Section 427 of the IPC reads as under : - “427. Mischief Causing Damage to the amount of fifty rupees.-Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 15. Mischief has been defined as under:- “425. Mischief.-Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief”.” 16. It is settled that for trying a person for an offence, mere existence of prima facie material is sufficient. In other words, the material which can be looked into at the initial stage of prosecution is the evidence collected by the investigating agency. If on perusal of the evidence collected by the investigation agency, prima facie involvement of a person in the commission of offence is made out, he is liable for prosecution. 17. In other words, the material which can be looked into at the initial stage of prosecution is the evidence collected by the investigating agency. If on perusal of the evidence collected by the investigation agency, prima facie involvement of a person in the commission of offence is made out, he is liable for prosecution. 17. In State of Haryana and others vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335, following categories of cases were mentioned by way of illustrations wherein the High Court may exercise the powers under Section 226 of the Constitution or the inherent powers under Section 482 of the Cr.P.C. to prevent abuse of process of Court or otherwise to secure the ends of justice:- “(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (3) Where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 18. In order to assess the rival contentions in the instant case, the category-3 as noticed above needs to be kept in mind. 19. Thus, the question arises whether from the material placed on record by prosecution prima facie involvement of petitioner in commission of alleged offences is made our? 20. Prosecution does not allege that work on spot was being executed in presence of or under direct supervision of the petitioner. It is also not alleged that petitioner was present on spot on 10.2.2019 and/or 11.2.2019. Another factor which needs to be noticed is that the petitioner was engaged in execution of work authorised by the Executive Engineer, National Highway. There is also nothing on record to suggest that the work was not being executed in the manner it ought to have been. 21. Further, the material on record itself suggests that petitioner was authorised to use explosives for breaking the hard strata. District Magistrate Kinnaur had issued permission in this regard, which has been made part of report under section 173 Cr.P.C. In fact, the explosive material was being supplied to the petitioner by the department itself. The quantity of explosives issued to petitioner by the department was being recorded in the register maintained for the purpose, which has also been relied upon by the prosecution. 22. No evidence has been collected by the investigating agency to suggest that any complaint was made by NH authorities regarding use of more than required explosive by the petitioner. Similarly, prosecution has not relied upon any expert opinion so as to suggest at least prima facie that the cause of landslides was excessive use of explosives. 23. Except for the opinion rendered by the sufferers of damage to their properties and a vague statement of Shri Gian Chand, Assistant Engineer to the effect that damage appeared to be the result of excessive blasting there is no expert opinion to substantiate the allegations levelled by the prosecution. No evidence has been collected to prove the allegations of rashness and negligence on part of petitioner. 24. The commission of rash or negligent act is sine qua non for attracting section 336 IPC. No evidence has been collected to prove the allegations of rashness and negligence on part of petitioner. 24. The commission of rash or negligent act is sine qua non for attracting section 336 IPC. To attract the mischief of rashness or negligence against a person, such act of omission or commission must be attributable to him which sans due and proper care or should be so reckless which is not expected from a prudent person in given circumstances. Further, to attract the criminal liability, there has to be some tangible material to infer such act of omission or commission. 25. The facts of the case do not suggest existence of any material sufficient to infer rashness or negligence on part of petitioner. As noticed above, there is no material on record to suggest that the there was excessive use of explosive or even if assumed to be so, was with the knowledge and consent of the petitioner. Similarly, there is nothing on record to deduce that the work was not being executed as per site conditions. 26. In addition to above the record also does not suggest that damage to the properties of complainants was direct result of a rash or negligent act of the petitioner or was the proximate and efficient cause of such damage without the intervention of another's negligence. 27. For attracting section 427 IPC it is necessary to attribute requisite intention or knowledge, to the accused, to cause destruction of any property or such change in any property or in the situation thereof as destroys or diminishes its value or utility. For attribution of requisite intention or knowledge there has to be collection of some tangible material. Once it is found that there is no material to suggest even prima facie that there was excessive use of explosive material or such use had triggered the landslides causing damage to the properties of complainants and further that even if such use was presumed, it was with the knowledge or consent of petitioner, there is no difficulty to hold that the evidence to infer requisite intention or knowledge is also clearly deficient. 28. 28. Keeping in view the entirety of circumstances, I am of the considered view that the material on record is not sufficient to hold that the alleged damage to the properties of complainants was on account of any rash or negligent act of petitioner and also that petitioner had used the explosive material with the intention or knowledge to cause destruction of the properties of complainants or to cause such changes thereto so has to diminish its value or utility. 29. Criminal prosecution cannot be launched on mere assumptions and presumptions. 30. In view of the above discussion, the instant petition is allowed and the proceedings against the petitioner initiated in pursuance to FIR No. 11/2019, dated 18.02.2019, under Sections 336, and 427 of the IPC and consequent criminal proceedings pending before learned Chief Judicial Magistrate, Kinnaur at Reckong Peo, H.P., in Case No. 44/2019 are ordered to be quashed. 31. The petition is accordingly disposed of. Pending applications, if any, shall also stand disposed of.