Calcutta High Court (Appellete Side)
4211/2008 on 1 March, 2010
1.3.2010..
C.R.R. No. 4211 of 2008.
An application under Section 482 of the Code of Criminal Procedure.
In re : Dr. Syed Ahmed Ferozie & Ors. ... petitioners.
Mr. Syed Shahid Imam
Md. Salahuddin ... for the petitioners.
Sk. Kasem Ali Ahmed .. for the State.
By filing the present application under Section 482 of the Code of Criminal
Procedure, the petitioners have sought for quashing of the charges-sheet no.92/02 dated
29.5.2002 arising out of New Market P.S. Case No. 386 dated 11.9.2001 under Section
304(A)/338/427/34 of the Indian Penal Code. The said case is now pending before the
learned 7th Court of Metropolitan Magistrate, Calcutta being G.R. No.2557 of 2001.
Heard Mr. Imam appearing as learned counsel for the petitioners and Mr. Ahmed
for the opposite party/State and perused the relevant materials. The backdrop of the
present case may briefly be stated as follows :-
The petitioner no. 1 is the proprietor of the Cinema Hall 'Society' situated at 2,
Corporation Place, Calcutta. The said Hall is in existence for more than 60 years. The
petitioner nos. 2 and 3 are employees under the petitioner no. 1. On 10th September,
2001 at about 18-10 hrs., the suspended balcony of the 'Society' Cinema Hall collapsed
trapping 18 persons. It was due to heavy rain. Out of those 18, four persons expired and
other sustained various injuries. The police authority naturally suo motu started a case.
A team of inspection from the Forensic Science Laboratory, Government of West Bengal,
headed by Mr. Marjit examined the collapsed over-head balcony on 11th September,
2001. They submitted a report. According to them, on examination it could be found that
iron rods of the collapsed balcony were worn out and damaged due to regular contact
with water. There was allegation of lack of proper maintenance. The load of balcony also
appeared to have become heavier in view of gradually weakened structure of the same.
Mr. Imam submits that the Commissioner of Police being the Licensing Authority caused
random inspection of the entire building. License is granted only on the basis of a
favourable report. On 23rd August, 2001, i.e., soon before the unfortunate accident, a
detailed inspection was held and it was reported that the Cinema Hall was in a fair
condition. In fact, after the expiry of the lease which was granted in respect of such Hall
to the petitioner no. 1, there was renewal of the same in his favour. There had been
litigation in respect of the said Hall and its users. Mr. Imam has categorically submitted
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that the collapse of the balcony can at best be the act of God and for that, none of the
petitioners could even remotely be held responsible.
Mr. Ahmed appears as learned counsel for the opposite party/State. On
examination of relevant materials, it is found that there is a report of one Dr. Marjit
which remotely suggests that iron rods which were sent for examination were found to
be in bad condition. Even assuming the same to be true, I am afraid, there could be no
offence under Sections 304A/338/427/34 of the Indian Penal Code.
In order to establish an offence of rashness and/or negligence, the prosecution
itself has to prima facie show that there was something more than mere error of
judgement. Mere fact that the petitioner no. 1 was in charge of the said Cinema Hall as
its lessee and it was his duty to take proper care of the said Hall does not even remotely
connect him with the unfortunate incident of collapse of balcony leading to death of a
few persons and severe injuries to a few others.
So far the offence under Section 427 of the Indian Penal Code is concerned, there
is no allegation of any mens rea on the part of the petitioners. It may also be mentioned
that to sustain charge under Section 304A of the Indian Penal Code, the prosecution has
to prove that it was much more than a simple negligence.
Here, in the present case, the petitioner no. 1 used to run the said Cinema Hall
and such materials on record reveal, he was the lessee in respect of the same. The
petitioner nos. 2 and 3 have been described as his employees. It is further revealed that
there had been torrential rain on the particular day of the incident which resulted in
partial collapse of the suspended balcony. The word 'maintenance' does not demand that
even the steel-frame or iron rods which are concealed are also to be taken out and
subjected to examination or test from time to time. It is true that at this stage, this court
certainly cannot rely upon any document or report which has been sought to have been
relied upon by the petitioners/accused persons. But in order to justify the continuation
of a proceeding, there must be some materials available before this court which could
constitute any offence. Even assuming the entire prosecution allegation to be true and
correct, I am afraid, no offence under Sections 304A/338/427/34 of the Indian Penal
Code could be made out. The fact that there had been a thorough inspection by the
police authority at the time of granting of license or for that matter it was under
consideration of the concerned authority of the Municipal Corporation at the time of
granting of lease, may not be a matter of serious consideration at this stage. But relying
upon the materials which have been placed on behalf of the prosecution, I do not think
that any such offence could be made out against all the three present petitioners.
Accordingly, continuation of the said proceeding will certainly amount to abuse of
process of law and the present application being C.R.R. 4211 of 2008 be allowed and
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further proceeding of the case being G.R.2557 of 2001 now pending before the learned
7th Court of Metropolitan Magistrate, Calcutta be quashed.
The petitioners/accused persons, if on bail, be released from the respective bail
bonds at once.
Criminal Section is directed to supply urgent xerox certified copy of this order, if
applied for, to the parties expeditiously.
(S.P. Talukdar, J)
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