Madhya Pradesh High Court
Harimohan Yadav vs The State Of Madhya Pradesh on 19 June, 2019
HIGH COURT OF MADHYA PRADESH JABALPUR
Miscellaneous Criminal Case No.16421/2019
Harimohan Yadav
Vs.
State of M.P. & another
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Present : Hon'ble Shri Justice Vishnu Pratap Singh Chauhan
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Name of counsel for the parties:
Shri Satyam Agrawal, learned counsel for the applicant.
Shri Kush Singh, learned Dy. Govt. Advocate for the respondent
No.1/State.
None for the respondent Nos.2.
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ORDER
(19.06.2019) The applicant has filed this petition under Section 482 read with Section 397/401 of Cr.P.C. being aggrieved by order dated 28.03.2019 whereby dismissed the application under Section 199 of Cr.P.C. and charge sheet came to be filed in the Court of JMFC registered as R.T. No.880/2017 arising out of the crime No.116/2017 at Ahmadpur, District Sehore under Section 304-A of IPC and prays to quash the whole proceeding arising out of crime No.116/2019.
2. Facts giving rise to this petition, in brief, are that one Kapil Kushwaha, on the direction of applicant and other co-accused, went to repair the high voltage line on 09.06.2017 situated at Badar Khan Sahni Feeder. 2 M.Cr.C. No.16421/2019 The electric supply was cut at that time while Kapil Kushwaha was doing the repair work, suddenly, connected the electric supply by the applicant as well as other, Co-accused Santosh without collecting the information whether the work has been completed or it was going on owing to the sudden running of electric current, Kapil Kushwaha, who was working at the pole got electrocuted. On seeing the incident, Harinarayan Lodhi shouted for stopping the electric current. Rashid Khan reached at the spot and Harinarayan went to electric office situated at Barkheda Hasan Feeder and shouted for electric cut.
3. Applicant Harimohan Yadav and other co-accused Santosh Ahirwar came out of the office. He narrated the whole incident, then applicant cut power supply then Kapil Kushwaha fell down from the pole. He was suffering burn injuries on his person. He was rushed to the hospital but on the way he succumbed, doctor declared him braught-dead. Merg intimation No.12/17 registered under Section 174 of Cr.P.C. and during enquiry on that merg it was found that on account of negligent work of applicant as well as other co-accused, this incident happened and Kapil Kushwaha got electrocuted and died. Thereafter. Crime No.116/2017 for the offence punishable under Section 304-A read with Section 34 of IPC had been registered at Police Station Ahmadpur, District Sehore. After investigation submitted challan against the applicant as well as other co-accused Santosh. It is further alleged that trial Court registered case No.880/2017. Applicant filed an application under Section 197 of 3 M.Cr.C. No.16421/2019 Cr.P.C. praying therein that without obtaining permission of competent authority/department the case could not be tried against the applicant. Learned trial Court vide order dated 28.03.2019 dismissed the said application under Section 197 of Cr.P.C. holding that cognizance has already been taken against the applicant. Court cannot review its own order, on that account, the application has been dismissed.
4. Being aggrieved by whole proceedings, the applicant filed this petition on the ground that deceased Kapil Kushwaha was not permitted to do electric work. Neither he was employee of MPSEB nor he was contacted to do the work. With his own will, he was doing electric work without knowledge of the applicant. The applicant was not negligent at the time of incident. FIR has been registered on the false ground. The applicant was called to appear before the Court, he filed an application under Section 197 of Cr.P.C. The Court did not consider the application on merit, however, simply rejected on the ground that cognizance has already been taken, therefore, the Court cannot review its own order with regard to the application filed under Section 197 of Cr.P.C. and dismissed the same. In view of the aforesaid, he prays to set aside the whole criminal proceeding initiated against him.
5. Learned Dy. Govt. Advocate for the respondent/State submits that after investigation charge-sheet has been filed against the applicant and there are sufficient material available on record against the applicant, therefore, no question arises for quashing of the criminal proceedings. 4 M.Cr.C. No.16421/2019
6. Case diary of crime No.116/2017 has been perused. After perusal of the statement of witness Harinarayan and other witnesses, prima-facie this fact emerges out that Kapil Kushwaha was repairing jumper work on the pole and he joined two jumpers and when he started the work on 3rd jumper then electric current suddenly supplied, on account of that, he got electrocuted and died. The main objection of the applicant in this petition is that Kapil Kushwaha had not been assigned to work on the pole.
7. After perusal of the statement of witnesses, this fact emerges out that a line-man Rashid Khan was posted for maintenance of electric line and he also engaged Kapil Kushwaha as helper. On 09.06.2017, line- man Rashid Khan was not at work. As per statement of Harinarayan and Rafiq Shah, the applicant and other co-accused Santosh called Kapil Kushwaha for repairing the jumper at the site of Badar Khan Sahni Feeder. Kapil Kushwaha went there and this fact also reflected from the statement that before starting the work on site he informed the applicant to cut the electric current. When he received the message that line had been switched off, no electric current supplied in the electric line, then Kapil Kushwaha, on the instruction of applicant, rode up the pole and started repairing work. He joint two jumpers of the electric line, however, when he was joining 3rd jumper, suddenly electric current supplied in wire and he electrocuted. Rafiq Shah and Harinarayan shouted for helping. Harinarayan went to Barkheda office where applicant and other co- 5 M.Cr.C. No.16421/2019 accused Santosh were present. He requested both to switch off electric current because Kapil Kushwaha got electrocuted, then the electric supply was switched off. This fact goes to show that electric supply switched on by applicant and other co-accused Santosh and also switched off by both. During investigation, mobile phone of the deceased was seized and compact disc of the chat was prepared, recorded in the mobile phone.
8. No doubt, there is prima-facie evidence against the applicant, who negligently switched on the current in the electric wire without inquiring the fact whether Kapil Kushwaha had completed the work of repairing electric line or not.
9. Learned JMFC Court took cognizance for the offence punishable under Section 304-A of IPC read with Section 34 of IPC against the applicant on the basis of documents filed along with the charge sheet. The applicant in this petition also objected on that he filed an application under Section 197 of Cr.P.C. because he is a public servant and during that period he was on public duty. The act of the applicant covers under protection of Section 197 of Cr.P.C. The trial Court has not considered that fact on merit and simply dismissed the application on the basis that Court has already taken cognizance in the case and the Court cannot review the order of cognizance later on.
10. Considering the order dated 28.03.2019, it reveals that learned JMFC Court simply dismissed this application filed under Section 197 of Cr.P.C. on the ground that cognizance has already been taken on 6 M.Cr.C. No.16421/2019 17.08.2017 and applicant belatedly filed application under Section 197 of Cr.P.C. The Court cannot review the order dated 17.08.2017 and fixed the case for argument before the charge. This Court finds that charge has not been framed against the applicant. The case was fixed for argument before charge and at that stage the applicant filed an application under Section 197 of Cr.P.C. The Court can consider the application under Section 197 of Cr.P.C. before framing the charge, this is a proper stage where learned JMFC Court can decide the application filed under Section 197 of Cr.P.C. on merits because the applicant filed an application for giving protection under Section 197 of Cr.P.C. on the basis of that, at the time of incident he was public servant and he was doing public duty and in furtherance of public duty, incident happened.
11. Learned trial Court dismissed the application on the ground that Court has taken cognizance vide order dated 17.08.2017 and cannot review that order. This Court finds that this order is not sustainable in the eye of law. The Court can consider the objection under Section 197 of Cr.P.C. before framing the charge. In the present case, trial commenced at the stage of framing of charge. Trial Court may consider the objection raised under Section 197 of Cr.P.C. before commencing trial, on the basis of foregoing discussion, this Court is of the view that the trial Court erred in dismissing the application under Section 197 of Cr.P.C. vide order dated 28.03.2019.
13. Accordingly, this petition filed under Section 482 of Cr.P.C. is 7 M.Cr.C. No.16421/2019 hereby partly allowed. Order dated 28.03.2019 passed by the trial Court is hereby set aside. The Court of JMFC is directed to hear both the parties on the application filed under Section 197 of Cr.P.C. and pass an order on merits and if the trial Court finds that Sanction under Section 197 of Cr.P.C. is required, stop the proceedings and grant time to the prosecution to obtain sanction and if prosecution fails to obtain the sanction within a reasonable time and sanction is necessary before commencing trial, the trial Court may proceed further as per law.
No order as to costs.
(Vishnu Pratap Singh Chauhan) Judge pnm Digitally signed by POONAM LONDHE Date: 2019.06.21 17:48:43 +05'30'