Madhya Pradesh High Court
Prem Narayan Bansal vs The State Of Madhya Pradesh on 4 April, 2017
1 MCRC.13074.2016.
HIGH COURT OF JUDICATURE AT JABALPUR
BENCH GWALIOR
S.B : Hon'ble Mr. Justice G.S.Ahluwalia
M.Cr.Case No.13074/2016.
Prem Narayan Bansal
Vs.
State of M.P. And others.
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Shri Arvind Dudawat, counsel for the applicant. Shri G.S.Chauhan, PP for the respondent no.1/State.
None for the respondent no.2 though served.
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O R D E R. (Passed on 4rth April, 2017) This petition under Section 482 of Cr.P.C has been filed for quashing the FIR against the applicant in Crime No.36 of 2016 registered by Police Station Utila District Gwalior for the offence punishable under Section 304-A of IPC.
Necessary facts for the disposal of the present application in short are that M/s Banco Construction Pvt. Ltd (in short `Company') is registered under the Companies Act and the applicant is one of the Director of the company. The applicant is aged about 72 years and therefore, he claimed himself to be a silent Director and has claimed that he is not an active Director of the company. According to the applicant, construction of the remaining work of Udaipura Branch Canal of Harsi High Level Canal and its entire distribution network system of distributaries, minors and sub minors with all structures was awarded to the Company. The applicant was not handling the allotted work as a Director. The company entered into a labour contract with a labour contractor with a clear stipulation that the labour contractor will be responsible for any accident if it occurs at site. All precautions and safety measures were taken by the contractor on the awarded site by putting safety signs, diversion Board, safety tape and 2 Feet 6 Inches height wall and speed breaker adjacent to small bridge under construction. However, inspite of all safety measures, on 17.2.2016, the deceased Atul came in a drunken condition on the site on his motorcycle at a very high speed and fell down in the pit after crossing the safety 2 MCRC.13074.2016.
breaker of 2 Feet 6 Inches height wall and died.
The incident was informed to the police and a criminal case has been registered under Section 304-A of IPC. After investigation, it was also found that the deceased was not having driving license. The police after completing investigation has filed the charge-sheet against the applicant.
It is submitted by counsel for the applicant that in the charge-sheet itself, the police has relied upon the spot map prepared by the investigating officer. The incident is alleged to have taken place on 17.2.2016 at about 19.45 and the spot map was prepared on 18.2.2016 by the investigating officer. According to the prosecution case, the deceased came on a motorcycle from Bhatpura side and fell in the pit which was dug for the purpose of construction of a bridge. It is case of the prosecution that no safety measures were adopted, no speed breaker was made and no sign board was installed, as a result of which, the deceased could not notice the pit dug by the company and accidentally fell in it, resulting in his death. However, referring to the spot map prepared by the investigating officer on the very next day of the incident, it was pointed out by the counsel for the applicant that it is clear that temporary wall of mud of 2 Feet 6 Inches height was constructed on the side of Bhatpura road and thus, it is in-correct to say that the company had not taken any precaution to avoid accident. If the deceased in a drunken condition did not stop the motorcycle and did not take the diversion road which was prepared on the spot and after crossing/jumping over temporary wall made of mud of 2 Feet 6 Inches height fell into the pit, then it cannot be said that the company had done anything in a rash and negligent manner putting the life of a person in danger. It is further submitted that since the spot map has been filed by the police itself along with charge-sheet, therefore, the same cannot be ignored and it is binding on the prosecution.
Per-contra, it is submitted by counsel for the State that on 27.4.2016, a query was put to Sr.Scientific Officer who had inspected the spot on 18.2.2016 and he was asked to point 3 MCRC.13074.2016.
out that whether any speed breaker or other security measures were found on the spot or not. In reply to the said letter, it was replied by the Sr.Scientific Officer that no such security measures were found around the under-construction bridge. Referring to the statement of various witnesses, it was pointed out by the State counsel that no security measures were adopted by the company on the construction site and because of the negligence of the company, the deceased could not notice the pit and therefore, fell down resulting in his death.
In reply to this submissions made by State Counsel, the counsel for the applicant also relied upon the statements of certain witnesses which have been filed along with case diary to show that, the temporary speed breakers were constructed on both the sides of the road by putting mud and the pits were also surrounded by the security tapes.
Heard, learned counsel for the parties.
The police has recorded the statements of Ramnaresh, Ramavtar Parashar, Ravi Parashar, Pawan Parashar, Ramkumar, Mukesh, Balram, Pradeep, Shivam, Deepak, Amit, Naresh, Jagdish, Prakash Pathak, Ramkaran, Naresh, Hariom, and Premnarayan etc. These witnesses have stated that there was no sign board security measures on the construction site. However, at the same time, the police had recorded the statements of Sanjay, Dinesh Katare, Banti, Kaushlendra, Shivpal Singh, Hradesh, Mahesh Gupta and Shivraj Singh who are the employees of the construction company and have stated that all adequate measures were taken including the installation of sign boards, construction of temporary mud wall and speed breakers etc. Thus, it is clear that two sets of evidence are available in the charge-sheet itself. One is the spot map showing presence of temporary wall made of mud having height of 2 Feet 6 Inches as well as the statements of the witnesses stating that all precautionary measures were taken by the company at the construction site and the another set of evidence is the report of Sr. Scientific Officer and the 4 MCRC.13074.2016.
statements of witnesses to the effect that no precautionary/security measures were taken by the company at the site.
So far as report given by the Sr.Scientific Officer is concerned, it is dated 30.4.2016. There is nothing on record that either on 17.2.2016 or 18.2.2016, he prepared any report pointing out that there were no security measures like construction of speed breakers or of temporary wall or sign board etc on the spot.
Be that as it may. The fact of the case is that, when the police has relied upon two sets of evidence in it's charge- sheet itself, then, it cannot be said that investigating agency was sure about the evidence which has been given by the witnesses. The spot map was prepared on 18.2.2016 by the investigating officer and in that spot map he had specifically pointed out temporary speed breaker or wall made of mud having height of 2 Feet 6 Inches on either side of construction site. When construction company had prepared a temporary wall of 2 Feet 6 Inches with an intention to block the main road, it can be said that adequate security measures were taken by the company. Whether, the spot map and the statements of the witnesses who have stated that adequate security measures were taken, can be relied upon by this court at this stage or not, is the main question.
The Supreme Court in the case of State of M.P. Vs. Sheetla Sahai and Others (2009) 8 SCC 617 has held as under :
" In this case, the probative value of the materials on record has not been gone into. The materials brought on record have been accepted as true at this stage. It is true that at this stage even a defence of an accused cannot be considered. But, we are unable to persuade ourselves to agree with the submission of Mr. Tulsi that where the entire materials collected during investigation have been placed before the court as part of the chargesheet, the court at the time of framing of the charge could only look to those materials whereupon the prosecution intended to rely upon and ignore the others which are in
5 MCRC.13074.2016.
favour of the accused.
The question as to whether the court should proceed on the basis as to whether the materials brought on record even if given face value and taken to be correct in their entirety disclose commission of an offence or not must be determined having regard to the entirety of materials brought on record by the prosecution and not on a part of it. If such a construction is made, Sub-section (5) of Section 173 of the Code of Criminal Procedure shall become meaningless.
The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself has placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the court shall not put the accused to harassment by asking him to face a trial.
(See State of Maharashtra and Others v. Som Nath Thapa and Others [(1996) 4 SCC 659]."
Once the police has filed a copy of the spot map which was prepared by the investigating officer on 18.2.2016 and has also chosen to file the statements of the witnesses to the effect that the adequate security measures were taken by the construction company at the site then, the prosecution cannot say that it would not rely upon these documents. Even for the purpose of framing of the charges, once the prosecution decided to file certain documents along with the charge- sheet, then all the documents are binding on the prosecution and if the same are considered on their face value, they lead to an inference that adequate security measures were taken by the company, then, it cannot be said that the applicant had in any manner committed an offence punishable under Section 304-A of IPC.
So far as contention of the applicant that he is a sleeping Director of the company and is not responsible for the day to day business of the company is concerned, suffice 6 MCRC.13074.2016.
it to say that it is a disputed question of fact which cannot be taken note of by this Court at this stage. However, considering the fact that the prosecution itself has filed the spot map showing presence of the wall made of mud of a height of 2 Feet and 6 Inches on the either side of the construction site along with statements of some of the witnesses to the effect that the adequate security measures were taken by the company, this court is of the considered opinion that even at this stage, the prosecution cannot disown these documents and accordingly, relying on these documents, it is held that as adequate security measures were taken by the company on the either side of the constructed site, therefore, it cannot be said that the applicant has committed an offence under Section 304-A of IPC.
Accordingly, the charge sheet filed against the applicant under Section 304-A of IPC in Crime No.36 of 2016 is hereby quashed. It is made clear that this order shall not come in the way of Civil Court in case, if any suit for compensation is filed against the company.
The application succeeds and is hereby allowed.
(G.S.Ahluwalia)
Rks. Judge
04/04/2017.