Madhya Pradesh High Court
Dilip Suryavanshi vs Shri Santosh Singh on 27 September, 2019
1
W.P. Nos.14987/2016 & 15907/2016
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
W.P. No. No. 14987/2016
(M/s. JMC Projects (India) Ltd. and others Vs. Santosh
Singh and others)
&
W.P. No.15907/2016
(Dilip Suryavanshi and another Vs. Shri Santosh Singh
and others)
Date of Order 27.09.2019
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay
Dwivedi
Whether approved for
reporting
Name of counsels for For Petitioners: Shri Surendra
parties Singh, Senior Advocate with Shri
Akshay Sapre, Advocate.
For Respondent No.1 : Shri
Prakash Upadhyay, Advocate.
For respondent Nos.2 and 3 : Shri Tabrez Sheikh, Advocate.
Law laid down Whether the Court below can take cognizance of an offence under Section 8B of the national Highways Act, 1956, without catering to the ingredients of 'Mischief' as adumbrated under Section 425 of the Indian Penal Code.
Significant Para Nos.
Reserved on : 08.08.2019 Delivered on : 27.09.2019 2 W.P. Nos.14987/2016 & 15907/2016 (O R D E R) (27.09.2019) These petitions under Article 227 of the Constitution of India, as in view of the order dated 16.07.2018 on an objection raised by respondent No.1, the learned counsel for the petitioner has given undertaking that these petitions be treated as petition filed under Article 227 of the Constitution of India.
2. As pleadings are complete and the parties agreed to argue the matter finally, it is heard finally.
3. Since the issue in both the cases is similar, therefore, they have been taken-up analogously and are being decided by this common order. Although, for the purpose of convenience, the facts narrated in W.P. No.14987/2016 are being taken-up.
4. To decide the controversy involved in these cases, it is appropriate to consider the facts of the case in brief which are thus, that a complaint case filed by respondent No.1 in the Court of Judicial Magistrate First Class, Rewa (M.P.). The learned Magistrate has 3 W.P. Nos.14987/2016 & 15907/2016 taken cognizance of the offence punishable under Section 8B of the National Highways Act, 1956 (hereinafter referred to as the 'Act, 1956') and issued Process. The complaint filed by respondent No.1 before the Magistrate is available on record as Annexure-P-1 containing allegations, on the basis of which, offence against the petitioners and against respondent Nos.2 and 3 has been registered. Respondent Nos.2 and 3 have also filed a petition which is connected along with this petition i.e. W.P. No.15907/2016.
5. The petitioner No.1 is a company incorporated under the provisions of the Companies Act, 1956 (for short the 'Companies Act') and is engaged in the business of infrastructural development in various parts of the country. Respondent No.3 is also a company incorporated under the provisions of the Companies Act and is wholly owned subsidiary of petitioner No.1. Respondent No.3 is a citizen of India and holding the 4 W.P. Nos.14987/2016 & 15907/2016 post of Deputy Managing Director and C.E.O. of petitioner No.1.
6. As per Annexure-P-4, earlier National Highway-7 originating from Mirzapur, passed through various townships like Mangawan, Rewa, Katni, and finally terminated at Cape Comorin in Kanyakumari. The Central Government, in exercise of its powers conferred under the Act, 1956 issued a notification that National Highway-7 be divided into two parts till Mangawan. The Highway from Allahabad to Mangawan was renumbered as National Highway-30, the Highway from Mirzapur that joined National Highway-30 to Mangawan was numbered as National Highway-135. Thereafter, the Highway from Mangawan till Kanyakumari was numbered as National Highway-30. Therefore, by notification dated 05.03.2010, National Highway-7, as it was previously understood and known, ceased to exist.
7. The petitioner No.2 and MPRDC, entered into a Concession Agreement dated 25.01.2012 5 W.P. Nos.14987/2016 & 15907/2016 (Annexure-P-5) to construct a section of National Highway-30 as well a section of National Highway-
135. The said project was to Design, Build, Finance, Operate and Transfer (DBFOT).
8. In accordance with the said terms of the Concession Agreement, petitioner No.2 submitted detailed drawings, designs and construction methodology to MPRDC and the independent Engineer who reviewed the same, had verified it to be in accordance with the specification laid down by MPRDC. It is noteworthy to mention that in terms of the Concession Agreement a Vehicular Underpass was envisaged at Ch.240.080 at the end point of Mangawan bypass, but the same was deleted from the scope of the works as there was a minor bridge at KM 203.754, which was coming within the approach of the said Vehicular Underpass. This deletion was duly acknowledged and approved by MPRDC and its independent Engineer, while approving the final Plan and Profile through its Minutes of the meeting dated 6 W.P. Nos.14987/2016 & 15907/2016 04.07.2013.
9. As per the specification provided for construction plan drawn by petitioner No.2, the contract was completed. The said construction was being reviewed and verified at every stage by MPRDC and as such, they left no scope for the petitioners to interfere or to change the drawings and design as specified.
10. However, being aggrieved by the drawings and design of the project of Highways, respondent No.1 has instituted a complaint i.e. Annexure-P-1 alleging inter alia that;
a. In order to construct National Highway-135 the petitioners are using heavy vehicles to transport material on the erstwhile National Highway-7. This caused breakage of the road leading to inconvenience;
b. That, no underpass has been constructed on National Highway-135 at Jarha to enable the inhabitants of that area to access National 7 W.P. Nos.14987/2016 & 15907/2016 Highway-135, which constructed much higher than the erstwhile National Highway-7.
c. That, the petitioners have connected the erstwhile National Highway-7 to National Highway-135 by constructing a temporary road of 8 feet width which goes to height of 25 feet, resulting in hazard to vehicular traffic. It is alleged that many accidents have occurred on this temporary road including one in which five persons lost their lives; d. That, no underpass has been constructed on National Highway-135 at Tiwani;
e. That, National Highway-135 has been blocked at Jarha so also Tiwani.
11. The learned trial Magistrate has taken cognizance of the offence and issued summons against the petitioners and respondent Nos.2 and 3.
12. It is also averred by the petitioners that though the summons issued by the Magistrate were 8 W.P. Nos.14987/2016 & 15907/2016 not served upon the petitioners, therefore, a warrant was issued against them. Thus, the said action of the trial Magistrate taking cognizance of the complaint and issuing summons of consequent proceedings be quashed.
13. The challenge is founded mainly on the ground that the cognizance of complaint and issuance of process against the petitioners is patently illegal, erroneous and contrary to law. It is contended by the petitioners that if the averments made in the complaint and statement of witnesses recorded before the Court are seen, then they do not fulfill the requirement of Section 8B of the Act, 1956 and as per the available material, the ingredients required for registration of an offence under Section 8B of the Act, 1956 are missing, it is clear that the trial Court acted illegally as no offence under the respective section is made out and the Court could not proceed under Section 204 (1)(a) of the Code of Criminal Procedure, 1973.
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W.P. Nos.14987/2016 & 15907/2016
14. It is also submitted by the petitioners that neither in the complaint nor in the statement of the witnesses, there is any allegation that the petitioners have caused destruction/damage to National Highway-30 or National Highway-135 or that by such destruction or change of property, said National Highways have become impassable or less safe for travelling and transportation and this is the germane of the offence. The order of the learned Judicial Magistrate First Class also nowhere states that such destruction/damage of National Highway-30 or National Highway-135 has been caused, therefore, no offence under Section 8B of the Act, 1956 is made out.
15. It is further contended by the petitioners that looking to the statement of the witness i.e. PW-5 (P.K. Joshi) who is a technical person, Divisional Manager of MPRDC, in paragraph-4 has very categorically stated as under:-
"4- iz-ih&3&d] esa euxoka ls fetkZiqj dks tkus okys jk"Vªh; jktekxZ dzekad&7 tks orZeku esa jk"Vªh; jktekxZ dzekad&135 gks x;k gS] mlds feyk;s tkus dk izLrko ewy ;kstuk esa cuk Fkk] mldh dkih iz-ih- &3&d&lh gSA iz-ih-&3&d esa tgk ij lM-d dks 10 W.P. Nos.14987/2016 & 15907/2016 feyk;k tkuk Fkk] mldk orZeku QksVks vkfVZdy&ch esa ch ls ch va'k gS vkSj ogk ij jk"Vªh; jktekxZ dzekad&7 dks mUu;u ekxZ ls ugha feyk;k x;k gS] Lor% dgk fd mls lqj{kk dkj.kksa ls lqj{kk fo'ks"kKksa dh fjiksVZ ds vk/kkj ij jksM fuekZrk daiuh us jksdk gS] fdUrq mls jk"Vªh; jktekxZ dh vf/klwpuk esa ifjorZu ugha djk;k x;kA"
16. It is contended by the learned senior counsel for the petitioners that the order of the trial Court is totally silent as to how it arrived to the satisfaction that there are sufficient grounds, when there is no ingredient of mischief available in the complaint and also in the statement of the witnesses. But, on the contrary, from the statement of PW-5, it is clear that the alleged road block was done for the safety purpose and as per the report of the safety experts to that extent, no modification was made in the notification of the National Highways.
17. As per the learned senior counsel for the petitioners, even if it is a faulty design of National Highways, it does not attract criminal liability as contemplated under Section 8B of the Act, 1956. It is further contended by him that in view of the law laid down by the Supreme Court in case of Shivjee Singh 11 W.P. Nos.14987/2016 & 15907/2016 vs. Nagendra Tiwari and ors reported in AIR 2010 SC 2261, there are no sufficient grounds available to make out prima facie case and in view of the said case law, sufficient ground means - there should be satisfaction that a prima facie offence is made out against any person. It is his contention that there is no element of mens rea involved in the instant case to cause any mischief or obstructing Highways and in absence of mens rea, no offence can be registered. It is further contended by him that there is no evidence available on record to substantiate that there was any element of mens rea available. He further contended that Section 8B cannot be read in isolation, but it should be read concurrently with Section 8A of the Act, 1956 and allegation of intentionally blocking of road and obstructing the movement of vehicles is completely false and baseless, as also, as per the statement of witness No.1, the petition i.e. W.P. No.13482/2015 (Prabhat Mishra Vs. Union of India and others) has already been filed in the High Court 12 W.P. Nos.14987/2016 & 15907/2016 containing similar allegation, which is pending, therefore, the complaint before the trial Court was not maintainable as the Higher Court had already ceased the matter.
18. As per the petitioners, the construction of Highway was done strictly in accordance with the design and specification contained in the Concession Agreement and if nothing found contrary to it, then the offence under Section 8B of the Act, 1956 is not made out. No allegations have been made in the complaint or in the evidence recorded by the trial Court that respondent No.3 had never inspected the alleged construction of National Highway, but merely because he is holding the post of Deputy Managing Director, he has been made accused. With the aforesaid premise, the petitioners are seeking quashment of the complaint so also the order whereby Process has been issued against them.
19. The learned counsel appearing for respondent No.1 has opposed the contention of the 13 W.P. Nos.14987/2016 & 15907/2016 learned counsel for the petitioner and raised an objection regarding maintainability of this petition on the ground that the petitioners should have filed the petition under Section 482 of the Code of Criminal Procedure, but not under Article 227 of the Constitution of India because the scope under Article 227 is very limited and in this regard he has relied upon the decisions reported in (2003) 3 SCC 524 parties being Sadhana Lodh Vs. National Insurance Co. Ltd. and another, (1969) 1 SCC 741 parties being Shaik Mohammed Umar Saheb Vs. Kaleskar Hasham Karimsab and others and (2010) 9 SCC 385 parties being Jai Singh and others Vs. Municipal Corporation of Delhi and another.
20. The learned counsel for respondent No.1 further contended that the petition is premature because at the stage of cognizance, the Magistrate is required to apply his judicial mind prima facie with a view to take cognizance and also contended that cognizance taken of the offence does not mean that 14 W.P. Nos.14987/2016 & 15907/2016 the person against whom such cognizance is taken is an offender, but he would get an opportunity to pray for his discharge at the time of framing of charges.
21. The learned counsel for respondent No.1 further contended that the petitioners have not filed the document i.e. Concession Agreement which contained terms and conditions of the contract. In such a situation, if the complaint contained assertion that sufficient averments and facts or events which if taken as a proof, can culminate in order of conviction against the accused person, then order of issuing process is justified. He relied upon a decision reported in (2012) 1 SCC 699 parties being Heious and Matheson Information Technology Limited and others Vs. Rajeev Sawhney and another.further submitted that the High Court has to see whether prima facie case is made out or not. But again entered into a debatable area of deciding which of the version was true, is relying upon the cases reported in (1996) 7 SCC 440 parties being Mushtaq Ahmad Vs. Mohd. 15
W.P. Nos.14987/2016 & 15907/2016 Habibur Faizi and others, (2006) 6 SCC 736 parties being Indian Oil Corpn. Vs. NEPC India Ltd. and others, for determining whether any mischief is involved or not. He further submitted that failure of adapting various safety measures while performing the contract of construction, is an offence under Section 8A of the Act, 1956. He also contended that in view of the allegations made in the complaint and the statement of the complainant, it is clear that the order passed by the Court below taking cognizance of the offence is justified and no interference is called for.
22. Arguments heard and record perused.
23. Respondent No.1 has raised preliminary objection regarding maintainability of the petition under Article 227 of the Constitution of India. It is contended by him that revision and remedy of petition under Section 482 of the Code of Criminal Procedure is available to the petitioner, therefore, petition under Article 227 is not maintainable.
24. The learned counsel for respondent No.1, in 16 W.P. Nos.14987/2016 & 15907/2016 support of his contentions relied upon the decisions of Sadhana Lodh (supra), Shaik Mohammed Umar Saheb (supra), Jai Singh (supra), Heious and Matheson Information Technology Limited (supra), Mushtaq Ahmad (supra) and Oil Corpn. (supra), however, I am not satisfied with the contention raised by the learned counsel for respondent No.1 for the reason that Article 227 of the Constitution of India, provides/reads as under:-
"227. Power of superintendence over all courts by the High Court.- [(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.] (2) Without prejudice to the generality of the foregoing provisions, the High Court may-
(a) call for returns from such courts;
(b) make and issued general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) of clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law 17 W.P. Nos.14987/2016 & 15907/2016 relating to the Armed Forces."
25. In view of the aforesaid provisions, it is clear that the High Court has power to superintendence over all courts. Supervisory jurisdiction is not only the conduct for correcting the mistake committed by subordinate courts rather inspire the subordinate court to act in accordance with law. If subordinate court has, an improper manner, reached finding of facts, the same can be corrected under Article 227 of the Constitution of India.
26. The case reported in (2006) 3 SCC 312 parties being Kishore Kumar Khaitan Vs. Praveen Kumar Singh has to be appreciated. The jurisdiction vested in the High Court under Article 227 of Constitution of India is of exceptional in nature and to be used in most exceptional cases where the court has acted arbitrarily, illegally and exceeded its jurisdiction. The High Court can exercise power under Article 227 of the Constitution of India to examine the validity of 18 W.P. Nos.14987/2016 & 15907/2016 the order passed by the subordinate court. It can also be exercised where it is shown that the grave injustice has been done, to aid any party.
27. The cases, on which, the learned counsel for respondent No.1 has placed reliance, it is provided that when a particular Act provides an appeal against the order passed by the subordinate court, then jurisdiction under Article 227 of the Constitution should not be exercised. Here in this case, against the order passed by the subordinate court, the revisional power can be exercised by the High Court under the provision of Code of Criminal Procedure, but considering the grave injustice and the nature of order, the High Court can exercise the revisional jurisdiction as has been provided under Article 227 of the Constitution of India.
28. In the case of Sadhana Lodh (supra), an order has been passed under the Motor Vehicles Act and provision of appeal is provided under Section 173 of the Motor Vehicles Act, 1988, therefore, the Court 19 W.P. Nos.14987/2016 & 15907/2016 has observed that the petition under Article 227 of the Constitution cannot be entertained, but the facts of the present case are different.
29. In case of Shaik Mohammed Umar Saheb (supra), the Supreme Court has dealt with the situation, in which, the High Court under Article 226/227 of the Constitution has re-appreciated the evidence as adduced before the Election Tribunal and was properly appreciated.
30. In case of Jai Singh (supra), again the Supreme Court has elaborated the scope of exercising the power provided under Article 227 of the Constitution by the High Court and has held that the said power cannot be exercised like 'Bull in a China Shop', to correct all errors of judgment of a Court, but simultaneously, the Supreme Court has observed that correctional jurisdiction can be exercised where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principle of law or justice.
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W.P. Nos.14987/2016 & 15907/2016
31. Even otherwise, the Supreme Court in case of Mosaraf Hossain Khan Vs. Bhagheeratha Engg. Ltd. And Others reported in (2006) 3 SCC 658, dealing with the identical petition regarding maintainability, has observed as under:-
"In a criminal matter also the High Court may exercise its extraordinary writ jurisdiction but interference with an order of the Magistrate taking cognisance under Section 190 CrPC will stand somewhat on a different footing as an order taking congnisance can be the subject-matter of a revisional jurisdiction as well as of an application invoking the inherent jurisdiction of the High Court. A writ of certiorari ordinarily would not be issued by a writ court under Article 226 of the Constitution against a judicial officer. The High Court under Article 226 should not ordinarily interfered with an order taking cognisance passed by a competent court of law except in a proper case. Furthermore only such High Court within whose jurisdiction the order of the subordinate court has been passed, would have the jurisdiction to entertain an application under Article 227 of the Constitution unless it is established that the earlier cause of action arose within the jurisdiction thereof. The High Courts, however, must remind themselves about the doctrine of forum non conveniens also."
32. In view of the above, it is clear that in the present case also the High Court has revisional power under Section 401 of the Code of Criminal Procedure, 1973 over the order passed by the subordinate court, therefore, the High Court can exercise the power under Article 227 of the Constitution of India to 21 W.P. Nos.14987/2016 & 15907/2016 consider the correctness of the order passed by the subordinate court.
33. This Court has also dealing with the same issue in case of Ved Prakash v. Chhotelal (2014 SCC OnLine MP 6180), relying upon Pepsi Foods Ltd. v. Special Judicial Magistrate (AIR 1998 SC 128), has followed as under:-
"The Apex Court opined that Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the Court finds that the appellants could not invoke its jurisdiction under Art. 226, the Court can certainly treat the petition one under Art. 227 or S. 482 of the Code. It may not, however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief S. 482 of the code of Art. 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate Courts. The present petition though filed in the High Court as one under Arts. 226 and 227 could well be treated under Art. 227 of the Constitution.
This is settled in law that jurisdiction under Art. 226/227 can be invoked despite availability of other remedy if the order is shown to be without jurisdiction, passed by incompetent authority etc. Prima facie, the order is without jurisdiction because no sanction was taken under Section 197 Cr.P.C."
The petition, therefore, is maintainable under Article 227 of the Constitution of India and the objection raised by respondent No.1, is hereby rejected. 22
W.P. Nos.14987/2016 & 15907/2016
34. In view of the above, I am not inclined to refer the cases, on which, the learned counsel for respondent No.1 has relied upon stating that the petition under Article 227 of the Constitution of India is not maintainable, for the reason that those cases are not applicable in the present case because the facts of those cases are not similar to the present one.
35. The Court below in its order has observed that in view of the available material and on the basis of evidence produced by the complainant, there are sufficient grounds for taking cognizance, for registration of offence under Section 8B of the Act, 1956, against the accused and as such, issued summons against the petitioners as well as respondent Nos.2 and 3.
36. It is necessary to quote Section 8B of the Act, 1956, which is registered against the petitioners, which reads as under:-
"8B. Punishment for mischief by injury to national highway. - Whoever commits mischief by doing any act which renders or which he knows to be likely to render any national highway referred to in sub-section (1) of section 8A impassable or less safe 23 W.P. Nos.14987/2016 & 15907/2016 for travelling or conveying property, shall be punished with imprisonment of either description for a term which may extend to five years, or with a fine, or with both."
37. It is expedient to see that the offence under Section 8B of the Act, 1956 is made out when the alleged act is committed out of 'Mischief', therefore, before taking cognizance, it should be seen whether mischief has been committed or not. Since mischief has not been defined under the Act, 1956, therefore, the definition as provided under Section 425 of the Indian Penal Code has to be taken note of, which provides 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"."
38. Looking to the above definition, it is clear that the mischief is nothing but an intention to cause, or knowing that it is likely to cause, wrongful loss or damage to the public or any person, causes destruction of any property or any such change in property or in the situation thereof as destroys or 24 W.P. Nos.14987/2016 & 15907/2016 diminishes its value or utility, or affects it injuriously. First, lets advert to the meaning of 'Intention'. As per Cambridge Dictionary Intention is "something that you want and plan to do or an aim". Secondly, for the commission of an offence under Section 425 of the Indian Penal Code, it is necessary to prove that there was wrongful loss or damage to the property in question. He submits that unless it is proved that the property was destroyed or underwent such a change that it diminished the utility or value of the property no offence under Section 425 of IPC could be held to have been committed. Therefore, the following ingredients are material and found to be involved;
(i) There should be destruction of property, or any such change in any property or in the situation thereof is destroying or diminishing its value or utility, or affects it injuriously.
(ii) That such destruction or change of property must intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or any person. 25
W.P. Nos.14987/2016 & 15907/2016
(iii) That by such destruction of property or change in property of National Highways becomes impassable or less safe for travelling or conveying properly.
39. Now, for considering the prima facie case, the Court has to see the averments made in the complaint, but here in the whole complaint, nowhere it is stated that as per the agreement executed with the petitioners-company, they have been asked to complete the construction of National Highways without having closed the earlier existing road. On the contrary, it is clear from paragraphs 1 and 2 of the complaint that the earlier existing National Highway known as National Highway-7 was converted into National Highway-30 and the basic grievance of the complainant was that there was no direction ever issued for closing the earlier existing National Highway-7 and closure of the same is causing inconvenience to the residents of the village and also causing accidents, but no material was produced to support his contention, however, erstwhile National 26 W.P. Nos.14987/2016 & 15907/2016 Highway-7 was converted into National Highway-30, therefore, there was no reason to keep part of National Highway-7 alive. In absence of any specific allegation for change of design with a mischief to cause damage to the National Highways, the ingredient of Section 8B of the Act, 1956 is not fulfilled.
40. Before taking cognizance of an offence, it is also the duty of the Court to first satisfy itself as to whether ingredients of the offence are available in the material produced before it by the complainant or not. Had it been a case, in which, it was alleged by the complainant that the petitioners have intentionally, even after knowing the fact that the meeting point of erstwhile National Highway-7 with changed design of converted National Highway-30 is closed, would cause multiple accidents and would also damage the existing National Highway, sufficient ground would have been carved out. In the case in hand, no sufficient ground can be said to be available for taking cognizance of the offence under Section 8B of the Act, 1956. The 27 W.P. Nos.14987/2016 & 15907/2016 intention is not carved out by the complainant as nowhere it is stated by the complainant and his witnesses that as per the agreement and work awarded to the petitioners-Company, the erstwhile National Highway-7 was to be kept alive and that cannot be closed by the petitioners-Company. In absence of any such material, it is highly improbable to reach to the satisfaction that there is sufficient cause available that the petitioners with an intention or knowledge to cause damage or loss to the National Highways and also to cause inconvenience to the public by blocking the communication of erstwhile National Highway-7 with the existing National Highway-30.
41. On perusing the provisions of Section 8A of the Act, 1956, it is clear that the Central Government has been empowered to enter into an agreement for development and maintenance of National Highways. If it is stated by the petitioners that they have completed the construction as per the specified design 28 W.P. Nos.14987/2016 & 15907/2016 which was approved by the MPRDC and they have carried out the work strictly as per contract awarded to them, then it is difficult to understand as to on what basis the trial Court has found sufficient ground or prima facie case for taking cognizance of the offence under Section 8B of the Act, 1956 against the petitioners as well as respondent Nos.2 and 3.
42. It is neither the case of the complainant nor the Court has stated that despite the agreement and contract awarded to the petitioners-Company, it has committed mischief, violated the terms of the contract and blocked the road connecting erstwhile National Highway-7 existing National Highway-30. In absence of any such specific allegation and material available on record proving the said fact, it appears that the Court below acted arbitrarily and also illegally forming an opinion that sufficient material is available to find prima facie case against the petitioners under Section 8B of the Act, 1956.
43. It is specific case of the respondent- 29
W.P. Nos.14987/2016 & 15907/2016 complainant that while constructing Mangawan bypass under contract, the petitioners failed to properly connect Jarha village end of National Highway and infact virtually blocked National Highway at Jarha village rendering 3 k.m. of National Highway passing through Mangawan town to Jarha village impassable. It is also stated by them that at a certain point proper barricade was not placed on the side of the road, which was making the Highway unsafe for use and they have heavily damaged the Highway between Mangawan to village Jarha and made it unsafe for use.
44. However, from the material produced by the complainant, it is nowhere substantiated that the petitioners have intentionally not connected the road from Jarha village to bypass and intentionally blocked it. It is also nowhere substantiated by producing cogent evidence and material that the petitioners have intentionally avoided putting up the barricade thus making National Highway unsafe. There should be 30 W.P. Nos.14987/2016 & 15907/2016 some material to show that the petitioners and respondent Nos.2 and 3 have intentionally committed mischief by not complying the terms and conditions of the contract under which they have constructed the road. Merely because some inconvenience is being caused to the villagers and residents of that area, does not mean it is an offence committed by the petitioners and respondent Nos.2 and 3. The Court below has also not stated as to on what basis the basic ingredient of mischief can be inferred on the part of the petitioners. Accordingly, I am of the opinion that the Court below has committed an error in forming sufficient satisfaction to take cognizance of the alleged offence under Section 8B of the Act, 1956, even when there was no material available before the Court and the complainant failed to produce the same to form an opinion against the petitioners and respondent Nos.2 and 3 about the alleged offence, in which, cognizance has been taken by the order impugned.
45. Before parting, another aspect has to be 31 W.P. Nos.14987/2016 & 15907/2016 considered that the contract is not a part of the record and it was not produced before the Court below as also before this Court, then surprisingly as to on what basis the Court can form an opinion that it is mischief on the part of the petitioners and intentional causing of damage to the National Highway by not connecting the road of Jarha village to National Highway. On the contrary, the complaint's witness has clarified that for the safety reason that road of Jarha village was blocked, it shows that there was no mischief on the part of the petitioners and as such proceeded illegally taking cognizance of the offence. In absence of availability of contract on record, it is impossible to form an opinion that the petitioners have breached the contract and also breached the law. It can easily be ruled out that the alleged conduct of the petitioners constitute any offence especially when the ingredient of mischief is missing.
46. Here in this case, it is apparent that the Court below exceeded its jurisdiction and has shown 32 W.P. Nos.14987/2016 & 15907/2016 grave dereliction of duty taking cognizance of offence even in absence of any material available before it for constituting an offence. Thus, in my opinion, the objection raised by the respondents regarding maintainability of this petition under Article 227 of the Constitution of India, has no substance and therefore, it is rejected.
47. However, looking to the over all circumstance and considering the basic principle as has been laid down in case of State of Haryana and Ors. Vs. Ch. Bhajanlal and Ors, reported in 1992 SC 604, even if taking un-controverted allegations made in the FIR and evidence collected during investigation, if prima facie does not constitute the commission of offence alleged against the petitioners, the order taking cognizance, offence can be set aside. The yardstick framed by the Supreme Court in case of Ch. Bjahanlal (supra) has full application in the present case and as such, in view of the discussion made hereinabove that the order impugned taking 33 W.P. Nos.14987/2016 & 15907/2016 cognizance of alleged offence under Section 8B of the Act, 1956, though is not made out against the present petitioners and also against respondent Nos.2 and 3, therefore, it is set aside.
48. The petitions are allowed. Parties shall bear their own costs.
(SANJAY DWIVEDI) JUDGE ac/-
Digitally signed by ANILCHOUDHARY Date: 2019.09.30 12:57:58 +05'30'