Bombay High Court
Mr. Anand Jaiswal And Others vs The State Of Maharashtra Thr. Police ... on 17 March, 2017
Author: B.R. Gavai
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.85 OF 2017
1. Anand Jaiswal,
Aged Major, Occ. Advocate,
r/o. Anand, North Ambazari Road,
Dharampeth, Nagpur-10.
2. Prashant Vaidya,
Aged Major, Occ. Business,
r/o. F-4, Snehdeep, Laxmi Nagar,
Nagpur - 22.
3. Mr.Bhoopinder Singh Bhatti,
Aged Major, Occ. Service,
r/o. Plot No.113, Misal Layout,
Post-Jaripatka, Nagpur-14.
4. Parimal Vaidya,
Aged Major, Occ. Business,
r/o. 518/B, Congress Nagar,
Nagpur-12.
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5. Murali Pantula,
Aged Major, Occ. Business,
r/o. A-401, Lotas Court,
Near VCA Stadium, Civil
Lines, Nagpur-01.
6. Sunil Deoupadhyay,
Aged Major, Occ. Service,
r/o. Plot No.12, SC Railway,
II Layout, Pratap Nagar,
Nagpur-22.
7. Pramod Kulkarni,
Aged Major, Occ. Retired.
r/o. A-5, Samarth Apartment,
48, Ramkrishna Nagar,
Khamla, Nagpur-25.
8. Alhad Gokhale,
Aged Major, Occ. Service,
r/o. S/42, Narhar Apartment,
Saharabuddhe Layout,
Bharat Nagar, Nagpur-33.
9. Hemant Gandhi,
Aged Major, Occ. Business,
r/o. August 15 Apartment,
Opp. Sai Mandir, Dhantoli,
Nagpur-440 012.
10.Ashwin Dorairajan,
Aged Major, Occ. Business,
r/o. Flat No.402, Rudraksha
Riddhi Apartment, 109,
Telecom Colony,
Nagpur-440 022.
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11.Dilip Daga,
Aged Major, Occ. Advocate,
r/o. 97/1, Opp. CTO, Temple
Road, Near Konark Apartment,
Civil Lines, Nagpur-01.
12.Dilip Parteki,
Aged Major, Occ. Service,
r/o. Rachna Gokul Apartment,
Plot No.B-202, Mankaput Ring
Road, Near Patil Traders,
Nagpur-30.
13.Mrs.Anupama Bansod,
Aged Major, Occ. Service,
r/o. 22, SE Railway Colony-I,
Ranapratap Nagar,
Nagpur-440 022.
14.Farokh Dastoor,
Aged Major, Occ. Service,
r/o.8th Kamdin Blocks,
Near Parsi Fire Temple, Opp.
Gandhi Sagar, Nagpur-18.
15.Anand Manohar Deshpande,
Aged Major, Occ. Advocate,
r/o. Gajanan-Vijay, RPTS Road,
Ramkrushna Nagar, Nagpur. .......... APPLICANTS
// VERSUS //
1. State of Maharashtra,
Through Police Station Officer,
Police Station, Hingna, Tahsil
and District Nagpur.
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2. Ms Dipali Masirkar,
Deputy Commissioner of Police,
Zone-I, Office of the Police
Commissioner, Civil Lines,
Nagpur.
3. Ravindra Pardesi,
Deputy Commissioner of Police
(Special Branch), Civil Lines,
Nagpur.
4. Hemantkumar Kharabe,
Senior Police Inspector,
Police Station, Hingna,
District Nagpur.
5. The Collector,
Nagpur, having its Office
at Collectorate Office,
Civil Lines,
Nagpur-440 001. .......... RESPONDENTS
____________________________________________________________
Mr.Sunil Manohar, Sr. Cl. with Mr.A.A.Naik, Advocate and
Mr.R.M.Daga, Advocate for the Applicants.
Mr.Rohit Deo, Advocate General and Mrs.Bharti Dangre, G.P. for
Respondent/State
____________________________________________________________
CORAM : B.R. GAVAI
AND
KUM.INDIRA JAIN, JJ.
DATE : 17.3.2017.
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ORAL JUDGMENT (Per B.R. GAVAI, J) :
1. Rule. Rule is made returnable forthwith. Heard finally with consent.
2. Applicant nos. 1 to 13 are the Office bearers of the Vidarbha Cricket Association; whereas applicant no.14 is the employee of said Association. Applicant no.15 was the Security In- charge for T-20 International Cricket Match between India and England, which was held on 29.1.2017 at the Vidarbha Cricket Association's Stadium at Jamtha. The applicants have approached this Court praying for quashing and setting aside the First Information Report registered by Police Station, Hingna vide Crime No.60 of 2017, dt.31.10.2017, under Sections 188, 336 of the Indian Penal Code and Sections 131A and 135 of the Maharashtra Police Act, 1951 against the said applicants.
3. The facts, in brief, which give rise to the present application, are as under :
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6 apl85.17.odt The Vidarbha Cricket Association (hereinafter referred to "the Association") has constructed a Stadium at Jamtha, which was earlier within the jurisdiction of the Superintendent of Police, Nagpur (Rural) and subsequently, it came under the jurisdiction of the Commissioner of Police, Nagpur after expansion of jurisdiction of the Nagpur Police Commissionarate. The Vidarbha Cricket Association was to host the T-20 International Cricket match between India and England at Nagpur on 29.1.2017. The applicants had made an application to respondent no.3/Commissioner of Police, Nagpur seeking various permissions. The said application was made on 3.12.2016. Though the said application was made on 3.12.2016, the Association, after a period of almost one month received a communication on 4.1.2017 from Police Station, Hingna raising certain issues. Reply was sent by the Association on 6.1.2017 answering the queries made by Police Station, Hingna. Along with the reply, NOC from the Fire department obtained by the Association was also submitted.
4. The Association was under the impression that the Performance License would be required for holding the Cricket match as on the earlier occasions also, Performance License was ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 7 apl85.17.odt obtained. An application was, therefore, made on 6.1.2017 to the Commissioner of Police for issuance of Performance License for holding Cricket match on 29.1.2017. The Commissioner of Police vide communication dt.11.1.2017 informed the Association that, in view of Government Letters dt.22.12.2015 and 2.12.2016, there was no need for obtaining Performance License. However, vide the said communication, the Association was informed by the Commissioner of Police that, because the foreigners were performing in the said event, it was necessary to take permission of the concerned Police Station, the Deputy Commissioner of Police (Traffic) and the Deputy Commissioner of Police of the concerned Zone. Though, according to the applicants, it was not necessary to obtain such permission, the Association made an application for the said purpose. The Association received a communication from the Deputy Commissioner of Police, Special Branch, Nagpur on 16.1.2017 regarding Catering arrangement for the players and informing the Association that since the players were of International level, from the security point of view, the food products should be supplied by the persons having approval of the Food and Drugs Department. On the same day, applicant no.14 replied to the said communication and pointed out that the catering arrangement for the players would be ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 8 apl85.17.odt done by Hotel Pride, Nagpur and also enclosed a copy of the Certificate issued under the Food Safety and Standards Act, 2006. Thereafter, another communication was received on 16.1.2017 from the Deputy Commissioner of Police, Special Branch, Nagpur dealing with various issues, inter alia, the issue of parking, ticketing, names of photographers, reporters, board members etc. Applicant no.14 sent a reply to the said communication.
5. In the meantime, an application was made by the Association to the Government of Maharashtra for grant of permission to sell the tickets online pointing out that capacity of stadium was nearly 45000 seats. The Government of Maharashtra vide Government Resolution dt.18.1.2017 had granted permission and the Collector, Nagpur also granted NOC vide communication dt.20.1.2017.
6. On 23.1.2017, a meeting was held in the Office of Commissioner of Police to discuss various issues about holding of Cricket match. The Police Authorities also held a Press Conference on the same day to inform the public at large as to how they intended to allow the flow of traffic and parking of vehicles. ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 :::
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7. It is the contention of the applicants that though, till then, the Police Authorities were cooperative, all of a sudden, from 27.1.2017, their attitude changed. It is the contention of the applicants that there were certain issues with regard to demand of complimentary passes/tickets and on account of differences on the said issue, the attitude of Police Authorities took a volte-face. There are various allegations made in the application by naming certain Officers who, according to the applicants, had made a demand for complimentary passes/tickets. It is contention of the applicants that, though initially 217 complimentary passes/tickets were given to the Police Authorities, they returned the same on 27.1.2017.
8. On 27.1.2017, the Association received a communication stating therein that there are various compliances to be made and permission for holding the match would be subject to such compliances. It is the contention of the applicants that, on 27.1.2017, another communication was received from the Deputy Commissioner of Police, Zone-I regarding private security persons to be deployed at the Stadium by the Association. The Association received another communication from the Senior Police Inspector, Traffic Branch informing the Association that the parking area provided by the ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 10 apl85.17.odt Association was extremely inadequate and that barricading on the road made by the Association was also weak.
9. The Association addressed a communication on 28.1.2017 replying to the communication dt.27.1.2017 informing the Deputy Commissioner of Police, Zone-I giving details about the steps taken by the Association for smooth conduct of the Cricket match.
10. According to the applicants, though the Police Authorities as early as on 6.1.2017 were supplied with NOC of the Fire department, the Police Authorities on 28.1.2017 raised the issue about Fire NOC and Occupancy Load.
11. According to the applicants, on the same day, the Association also received a communication dt.28.1.2017 from the Senior Police Inspector raising various issues which, according to the applicants, were already dealt with and complied with. The applicants contend that again, vide communication dt.28.1.2017, the applicants were informed to submit Electrical Inspector's NOC, Structural Stability Certificate etc. as were sought by the Deputy Commissioner of Police-Zone I. The Association received a ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 11 apl85.17.odt communication on 28.1.2017, at around 8.30 p.m. wherein the Association was informed that, the temporary permission granted on 27.1.2017 stood cancelled and in any case, if an untoward incident takes place, the Managing Committee of the Association will be responsible. A meeting was arranged in the morning of match i.e. on 29.1.2017 in the Office of Commissioner of Police, Nagpur along with applicant no.1 and other representatives of the Association. The Association addressed a communication dt.29.1.2017 to the Collector, Nagpur seeking his clarification on the letter dt.28.1.2017 addressed by the Deputy Commissioner of Police.
12. The match, as scheduled, was held on 29.1.2017. However, since various issues were raised by the Deputy Commissioner of Police, Zone-I in the communication by the said Officer to the Association, the Association sought clarification from the Collector vide communication dt.29.1.2017. The Collector vide his communication dt.31.1.2017 addressed a communication to the Association pointing therein that the issues raised by the Deputy Commissioner of Police, Zone-I were not correct. ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 :::
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13. In this background, the First Information Report came to be lodged on 30.1.2017 by respondent no.1 against the present applicants for the offences punishable under Sections 336 and 188 of the Indian Penal Code and Section 131A and 135 of the Maharashtra Police Act, 1951.
14. Vide order dt.2.2.2017 passed by us, we issued notice to the respondents and granted ad interim relief in terms of prayer clause (ii).
15. The effect of the said order was that though no coercive steps were to be taken against the applicants, the respondents were free to proceed further with the investigation.
16. Thereafter, on various dates, adjournments were sought by the learned Public Prosecutor on the ground that investigation was in progress. In the meantime, we had orally requested the learned Public Prosecutor to impress upon the Police Commissioner to see to it that a quietus is given to the situation, inasmuch as it was in nobody's interest to proceed further with the present proceedings. We had also requested the learned Public Prosecutor to impress upon ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 13 apl85.17.odt the Police Commissioner that, on a trivial issue, the situation should not lead to unnecessary complications, depicting that it was a fight between the Police Officers on one hand and the Officers of the Association on the other hand. However, in spite of several adjournments, it appears that the Commissioner of Police was not in a position to find out a solution.
17. When the matter was listed before this Court on 23.2.2017, we passed an order stating therein that though we have no hesitation in deciding the matter on merits, taking into consideration the perception of the citizens at large, it will be in the interest of everybody that a quietus is given to the entire controversy. On the said date, the learned Public Prosecutor gave a suggestion that the Investigating agency would complete the investigation within a period of one week from that day and would place the investigation papers before the learned Advocate General of Maharashtra. She further suggested that the learned Advocate General would apply his mind to the investigation papers and take an appropriate decision as to what future course of action is to be adopted in the present case. The learned Public Prosecutor further ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 14 apl85.17.odt stated that the Police Authorities would abide by the opinion given by the learned Advocate General.
18. Mr.Sunil Manohar, learned Senior Counsel appearing on behalf of the applicants readily accepted the suggestion given by the learned Public Prosecutor. The learned Senior Counsel further stated that, in order of avoid any controversy and in order to give a quietus to the situation, the applicants have decided to withdraw all the adverse allegations made against the Officers of the Police Department. He submitted that the affidavit withdrawing the allegations against the Police Officers would be filed before this Court within a period of three days. Accordingly, the affidavit has also been filed by the applicants withdrawing all the adverse allegations made against the Police Officers.
19. We, therefore, by the said order dt.23.2.2017, had directed the Investigating Agency to complete the investigation and place the entire papers before the learned Advocate General on or prior to 2.2.2017. The learned Advocate General was requested to apply his mind to the investigation papers and take a decision as to ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 15 apl85.17.odt what future course of action is required to be taken in the matter and place his decision before this Court on or prior to 9.3.2017.
20. On the next date, the learned Public Prosecutor had sought extension on the ground that, since the papers were voluminous, the learned Advocate General will require some more time to give his report. Accordingly, the matter was adjourned till today.
21. Today, when the matter was listed in the first Session, the learned Advocate General had placed on record the report prepared by him on the basis of investigation conducted by the Investigating agency. Since the learned Advocate General had opined by the elaborate reasoning that there is no justification for continuing with the prosecution in relation to Crime No.60 of 2017 for the offences punishable under Sections 188 and 136 of the Indian Penal Code and Sections 131A and 135 of the Maharashtra Police Act, we had requested the learned Public Prosecutor to inform the Court as to whether the Police Authorities propose to file 'C' Summary proceedings, the learned Public Prosecutor requested for grant of sometime and stated that she would consult the ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 16 apl85.17.odt Commissioner of Police and make a statement at 1 O' Clock. At 1 O' Clock, when the matter was called out, she stated that since the period was very short, the Commissioner would require atleast half an hour's time to apply his mind and take a decision thereon. Though the learned Public Prosecutor had requested only for half an hour time, we informed her that we will give an hour's time to the Commissioner and hear the mater at 2.00 p.m.
22. At 2.00 p.m. when the matter was listed, the learned Public Prosecutor has brought to our notice the communication addressed to her by the Police Commissioner, Nagpur City requesting for atleast two weeks' time to go through the report of the learned Advocate General and thereafter, to give her necessary instructions.
23. We fail to understand such an approach on behalf of the Police department. When a suggestion was given at the instance of the Police department that, after investigation is complete, the investigation papers be referred to the learned Advocate General so that he applies his mind and gives his opinion as to what future course of action is to be adopted, it is totally improper now to seek ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 17 apl85.17.odt time to study the learned Advocate General's report, rather than taking a decision to abide by it, as was assured to the Court. It was on the suggestion of the learned Public Prosecutor, that Mr.Sunil Manohar, learned Senior Counsel agreed and also applicants volunteered to withdraw all the allegations made against the Police Officers. The conduct of the Department in giving impression to the applicants that, in order to give quietus, they would abide by the opinion of the learned Advocate General, thereby making them to withdraw the allegations against them and thereafter, now turning back and saying that the Commissioner wants to apply his mind to the report of the learned Advocate General, in our considered view, is totally unethical.
24. When, at the instance of the respondent/Police Authorities, the matter, after thorough investigation by the Police Authorities, is referred to the learned Advocate General, who is a Constitutional Authority and who has given his opinion, we see no rationale in the Commissioner of Police again seeking time to apply his mind to the report submitted by the learned Advocate General and thereafter, take a decision. When a suggestion was given at the behest of the respondents to refer the investigation for the learned ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 18 apl85.17.odt Advocate General's opinion and when, on the basis of the representation made by the respondent/Authorities, the applicants agreed upon the said suggestion and withdrew their allegations, in our view, such a volte-face at the instance of the Commissioner of Police is totally unreasonable. We have no hesitation in saying that the communication which is addressed by Commissioner of Police to the learned Public Prosecutor is of such a nature which shows disrespect to the High Constitutional Authority of the Office of the learned Advocate General. We deprecate such a practice on the part of the Officer of the State Government in going to the extent to say that he wants to examine the opinion given by the highest Law Officer of the State i.e. the learned Advocate General. It need not be emphasized that no Authority of the State including the Commissioner of Police has a jurisdiction to sit in an appeal over the opinion expressed by the learned Advocate General of the State.
25. As the learned Advocate General has considered the entire investigation papers and the position of law and has given an elaborate report, we find that it will be appropriate to refer to the same :
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19 apl85.17.odt "First Information Report /Crime 60/17 registered at Hingna Police Station:-
3. This FIR is registered on complaint lodged by Mr.Hemant Kumar Kharabe, Senior Police Inspector, Hingna Police Station. The FIR alleges commission of offences under Sections 188 and 336 of the IPC. The first paragraph is a narration of events leading to the issuance of the police permission ("NOC") to hold the 20-20 cricket match between India and England at the VCA stadium on 29th January 2017. Paragraph 2 of the FIR recites that the permission to hold the match was revoked by and under letters dated 27th and 28th January 2017. The said paragraph further recites that the VCA office bearers were put on notice that if despite the cancellation of the police permission the cricket match is held, the office bearers shall be responsible should there be any untoward incident. Paragraph 3 of the FIR makes a reference to a letter issued by the Chief Fire Officer, Nagpur Municipal Corporation dated 21st January 2017 and to the fire NOC issued under the Maharashtra Fire Prevention and Life Safety Measures Rules, 2009, purportedly showing 34,571 as the occupancy load. Paragraph 3 further states that despite the occupancy load shown in the fire NOC, the VCA represented the occupancy to be 44,000 without producing the certificate of the competent authority/officer in support of such claim. It is further alleged that no permission was obtained from the local police to use loudspeakers and, in conclusion, paragraph 3 alleges that in view of the rash and negligent act of the VCA a situation was created whereby ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 20 apl85.17.odt human life or the personal safety of others was endangered due to the crowd which assembled and the resultant obstacle to the common citizens using the public roads. Paragraph 4 alleges that there is a disobedience of orders issued under Sections 37(1) and 37(3) of the Maharashtra Police Act, 1951, since police permission was not obtained as was mandated by the Fire Service Department, Electricity Department and the letter dated 20th January 2017 issued by the Collector.
3.1. At the outset, I must advert to an issue which, although not raised in the Criminal Applications before the Hon'ble High Court, would go to root of the matter. VCA is a trust registered under the Maharashtra Public Trusts Act.
Section 11 of the Indian Penal Code defines "person" as under:
"Person".-The word "person" includes any Company or Association or body of persons, whether incorporated or not.
Accordingly, a public trust registered under the Maharashtra Public Trusts Act may be considered to be a person under Section 11 of the Indian Penal Code, and by extension, a public trust may be liable for an offence under Section 336 as in the present case.
3.2. In the present case, the investigation papers as well as the FIR reveal a number of allegations against the VCA ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 21 apl85.17.odt itself, whereas a number of officer bearers of the VCA have been named accused, without there being any specific role attributed to them.
3.3. In Keki Hormusji Gharda v. Mehervan Rustom Irani, (2009) 6 SCC 475, the Apex Court held:
"17. The Penal Code, 1860 save and except in some matters does not contemplate any vicarious liability on the part of a person. Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director or the Directors of the Company, thus, cannot be said to have committed an offence only because they are holders of offices. The learned Additional Chief Metropolitan Magistrate, therefore, in our opinion, was not correct in issuing summons without taking into consideration this aspect of the matter. The Managing Director and the Directors of the Company should not have been summoned only because some allegations were made against the Company."
3.4. The Sections of the IPC under which the office bearers have been charged do not contemplate any vicarious liability. Accordingly, in the absence of specific allegations against the office bearers, it would not be appropriate or legally ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 22 apl85.17.odt permissible to continue criminal proceedings against them for offences allegedly committed by the VCA itself. Investigation Report of FIR/Crime 60/17 3.5. In any event, I have given my anxious consideration to the entire investigation report of FIR/Crime 60/17 and it would be appropriate to make a brief reference to the evidence collected by the investigating agency in support of its contention that offences under Sections 336 and 188 of the IPC and 131(a) and 135 of the Police Act are made out. 3.6. According to the investigating agency, offence punishable under Section 188 of the IPC is made out in view of (i) the alleged violation of the order promulgated by the Joint Commissioner of Police, Nagpur, dated 24th January 2017 under Section 37(1), (3) of the Police Act; (ii) violation of order promulgated by the Joint Commissioner of Police, Nagpur, dated 24th January 2017 under Section 3(1), 36 of the Police Act; (iii) non-compliance of instructions of the Collector given vide letter dated 20th January 2017; and (iv) non-compliance of instructions of the Commissioner of Police given vide letter dated 11th January 2017.
3.7. In support of its claim that an offence under Section 336 is made out, the investigating agency contends ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 23 apl85.17.odt
(i) the fire NOC was not issued by the competent authority;
(ii) the fire NOC showed occupancy capacity of 34,571 and yet VCA sold approximately 43,000 tickets; (iii) the VCA does not have building sanctioned plan duly approved by the Collector, nor does the VCA have the completion certificate and the occupancy certificate under Rule 12 of the Development Control Regulations, from the Collector; (iv) the VCA has not obtained the consent to establish and consent to operate from the Maharashtra Pollution Control Board; (v) VCA did not obtain the environmental clearance certificate; (v) the NOC of the fire department was mandatory for sanctioning of building plan which is not obtained by the VCA; and (vi) parking space provided is short of the statutory requirement.
3.8. Section 131(a), 135 of the Police Act are invoked on the allegation of violation of orders dated 24th January 2017 referred to supra.
3.9. Whether an offence under Section 336 of the Indian Penal Code is prima facie made out?
3.10. The short question with which I am confronted is whether, on the face of the allegations in the FIR, and the supporting evidence collected during the investigation, is there a case made out for continuing with the prosecution of the ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 24 apl85.17.odt office bearers of the VCA for an offence under Sections 188 and 336 of the IPC and Section 131(a), 135 of the Police Act?
Section 336 of the Indian Penal Code
4. Section 336 of The Indian Penal Code, 1860 provides:
"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."
4.1. Accordingly, the ingredients of the offence, which the prosecution must prove, are:
a. That the accused committed the act in question. b. That the act was done in a rash or negligent manner.
c. That the act was such as to endanger human life or the personal safety of others.
4.2. Law of Torts, Ratanlal & Dhirajlal (24th Edn., 2002) defines negligence as under:::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 :::
25 apl85.17.odt "Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. ... the definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort."
4.3. The then High Court of Nagpur, in The State Government vs. Rangaswami MANU/MH/0169/1951 in a case under Section 304-A of the Penal Code, held:
"10. In the well-known case of Empress of India v. ldu Beg 3 All 776 Straight, J., differentiated between criminal rashness and criminal negligence in the following terms:
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... criminal rashness is hazarding
a dangerous
or
wanton act
with the knowledge that
it so, and that
it may cause injury.
but without intention to cause
injury. or knowledge that
it will probably be
caused. The criminality lies in running
the risk
of doing such an act with recklessness or
indifference as to the consequences. Criminal
negligence is the gross and culpable neglect or
failure to exercise that reasonable and proper
care and precaution to guard against injury
either to the public generally or to an
individual in particular, which, having regard
to all the circumstances
out of which the
charge has arisen, it was the imperative duty
of the accused person to have adopted .
11. Holloway J. in Reg. v. Nidamarti 7 M HCR 119 said:
Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening.
The imputability arises from acting despite the
consciousness. Culpable negligence
is acting
without the
consciousness,
that
the
illegal
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27 apl85.17.odt
and mischievous
effect will
follow,
but in
circumstances which show that: the actor has
not exercised the caution incumbent
upon
him, and that,
if he had, he would have the
consciousness. The imputability arises from
the neglect of the civic duty of circumspection.
12. These interpretations were approved in H. W Smith v. Emperor 53 Cal 333 by a Division Bench which also referred to the following dictum of Alderson B. in Blyth v. Birmingham Water Works Co. (1856) 11 Ex 781 :
Each case must be judged in reference to the precautions, which, in respect to it, the ordinary experience of men has found to be sufficient, though the use of special or extraordinary precautions might have prevented the particular accident which happened.
Mukerji, J., in the Division Bench
case then
pointed out that
the
question whether
the
accused's conduct amounted to culpable
rashness or negligence depended directly on
the question as to what was the amount of care
and circumspection which a
prudent
and
reasonable man would
consider to be sufficient
upon all the circumstances of
the case."
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28 apl85.17.odt
(emphasis supplied)
4.4. Accordingly, from Rangaswami (supra), the following relevant propositions of law emerge:
a. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences - (Approved in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648 and Sushil Ansal v. State, (2014) 6 SCC 173). The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness, that the illegal and mischievous effect will follow, but in circumstances which show that; the actor has not exercised the caution incumbent upon him, and that, if he had, he would, have the consciousness. The imputability arises from the neglect of the civic duty of circumspection- (Approved by Sushil Ansal (supra)) b. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 29 apl85.17.odt has arisen, it was the imperative duty of the accused person to have adopted - (Approved by Jacob Mathew (supra), Alister Anthony Pareira (supra) and Sushil Ansal (supra)) c. Each case must be judged in reference to the precautions, which, in respect to it, the ordinary experience of men has found to be sufficient, though the use of special or extraordinary precautions might have prevented the particular accident which happened.
d. Whether the accused's conduct amounted to culpable rashness or negligence depended directly on the question as to what was the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient upon all the circumstances of the case.
4.5. "Negligence" and "rashness" were discussed in some detail, including by adverting to the English case law on the point, in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1:
"14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 30 apl85.17.odt accused having run the risk of doing such an act with recklessness and indifference to the consequences
15. ...Where negligence is an essential ingredient of the offence.
the negligence to be
established by the prosecution
must be culpable
or gross and not the negligence merely based
upon an error of judgment.
16. ... It has been held that while negligence
is an omission to do something which a
reasonable man, guided
upon
those
considerations which ordinarily regulate the
conduct of human affairs, would do, or
doing
something which a
prudent
and
reasonable
man would
not
do; criminal negligence is the
gross and culpable neglect or failure to
exercise that reasonable
and proper
care and
precaution to guard against injury either to
the public generally
or to an individual in
particular, which having regard
to all the
circumstances out of which the charge has
arisen, it was the imperative duty of the
accused person
to have adopted.
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31 apl85.17.odt
17. In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree.
A review of Indian decisions on criminal negligence
37. We are inclined to, and we must - as duty- bound, take note of some of the relevant decisions of the Privy Council and of this Court ... On a review of judicial opinion and an illuminating discussion on the points which are also relevant before us, what Their Lordships have held can be summed up as under:
(iii) It
is impossible to define culpable or
criminal negligence, and it is not possible to
make the distinction between
actionable
negligence and criminal negligence
intelligible, except by means of illustrations
drawn from actual
judicial
opinions. (AIR
p.
75c-d)
45.Spring Meadows Hospital v. Harjol Ahluwalia [(1998) 4 SCC 39] is again a case of liability for ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 32 apl85.17.odt negligence by a medical professional in civil law. It was held that an error of judgment is not necessarily negligence. The Court referred to the decision in Whitehouse v. Jordan [(1981) 1 All ER 267 : (1981) 1 WLR 246 (HL)] and cited with approval (at SCC p. 47, para 9) the following statement of law contained in the opinion of Lord Fraser determining when an error of judgment can be termed as negligence: (AllER p. 281b-c) "The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that a man, acting with ordinary care, might have made, then it is not negligence."
47. Before we embark upon summing up our conclusions on the several issues of law which we have dealt with hereinabove, we are inclined to quote some of the conclusions arrived at by the learned authors { [Ed.: Alan Merry and Alexander McCall Smith.]] of Errors, Medicine and the Law (pp. 241-48), (recorded at the end of the book in the Chapter titled "Conclusion') highlighting the link ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 33 apl85.17.odt between moral fault, blame and justice in reference to medical profession and negligence. These are of significance and relevant to the issues before us. Hence we quote:
(iv) Conviction for any substantial criminal offence requires that the accused person should have acted with a morally blameworthy state of mind. Recklessness and deliberate wrongdoing, are morally blameworthy, but any conduct falling short of that should not be the subject of criminal liability. Common law systems have traditionally only made negligence the subject of criminal sanction when the level of negligence has been high - a standard traditionally described as gross negligence. In fact, negligence at that level is likely to be indistinguishable from recklessness.
(ibid., p. 248) (emphasis supplied) Conclusions summed up
48. We sum up our conclusions as under:
(1) Negligence is
the breach
of
a
duty
caused
bv
omission to
do something which a reasonable man
guided bv those considerations which ordinarily
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34 apl85.17.odt
regulate the conduct of human affairs would do,
or doing something which a prudent and
reasonable man would not
do. The definition
of
negligence as
given
in
Law
of
Torts,
Ratanlal
&
Dhirajlal (edited
by Justice G.P. Singh), referred
to hereinabove, holds good.
Negligence
becomes
actionable on account of injurv resulting from the
act or omission amounting to negligence
attributable to the person
sued. The essential
components of negligence
are three:
"duty",
"breach" and "resulting
damage".
(5) The jurisprudential concept of negligence
differs
in civil and criminal law. What mav be
negligence in civil law may not necessarily be
negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree.Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6! The word "gross" has not been used in Section 304- A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be "gross". The expression "rash or negligent act" ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 :::
35 apl85.17.odt as occurring in Section 304-A /PC has to be read as qualified by the word "grossly".
...."
(emphasis supplied) 4.6.Accordingly, from Jacob Matthew (supra), the following relevant propositions of law emerge:
a.Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.
b.The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 36 apl85.17.odt a ground for action in civil law but cannot form the basis for prosecution.
c. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence.
d. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent.
e. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences.
f.Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
g.It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinions.
h.The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. a. The word "gross" has not been used in Section 336, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:07 ::: 37 apl85.17.odt "gross". The expression "rashly or negligently" as occurring in Section 336 IPC has to be read as qualified by the word "grossly".
4.7. In Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648, the Apex Court held :
"39. Like Section 304-A, Sections 279, 336, 337 and 338 /PC are attracted for only the negligent or rash act.
The scheme of Sections
279. 304-A, 336, 337 and
338 leaves no manner of doubt
that these offences
are punished because of the inherent danger of the
acts specified
therein irrespective of
knowledge or
intention to produce the result and irrespective of
the result. These sections make punishable the acts
themselves which are likely to cause death or injurv
to human life."
(emphasis supplied)
4.8. Accordingly, from Alister Anthony Pareira(supra), the following relevant proposition of law emerges: The scheme of Section 336 leaves no manner of doubt that the offence is punished because of the inherent danger of the act specified therein irrespective of knowledge or intention to produce the result and irrespective of the result. The section make punishable the acts themselves which are likely to endanger human life or the personal safety of others.::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 :::
38 apl85.17.odt 4.9. The justifiability of continuing with the prosecution for the offence punishable under Section 336 of the Indian Penal Code shall have to be tested on the touchstone of the legal position set out by the Judgements cited Supra.
5. In essence, what is contended by the Investigating Agency is that the alleged non-compliances of statutory requirements are ipso-facto sufficient to make out an offence under Section 336 of the IPC. Pertinently, it is not alleged in the FIR, and indeed, is not even borne out from the material collected during investigation, that the VCA Stadium is structurally unsafe or is otherwise a potential danger to human life or the personal safety of others. On the contrary, the Nagpur Improvement Trust ("NIT") appears to have addressed a letter dated 2.9.2016 to the MPCB that upon site visit, it is revealed that the construction done at the site is as per the plan approved by then Planning Authority (Collector, Nagpur, on recommendations of the Town Planning Department). NIT has also filed an affidavit before the NGT in Application No. 33 of 2016 affirming that the construction of the VCA stadium is in accordance with the approved plan. The record further reveals that the structural stability evaluation of the stadium was undertaken in 2008-09 and a detailed visual inspection of structural elements was carried out on 9.1.2016 by the Civil Engineering Department of liT, Powai. The expert opinion of IIT, Powai. The expert opinion of ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 ::: 39 apl85.17.odt IIT, Powai is that the stadium structure is safe and stable for occupation as per the prevalent Indian Codes considering the quality of structural design, and the materials used for the construction. IIT, Powai further asserts that the stadium structure is well maintained and no signs of structural degradation were noticed during the 9.1.2016 visual inspection. Therefore, it can be assumed that there is no reason to doubt that the stadium is structurally safe. It is also not the case of the investigating agency that the stadium is structurally unsafe.
5.1. The Investigating Agency however, contends that the VCA Stadium does not have the building plan sanctioned/approved by the Collector. The said contention appears to be factually incorrect. The Investigating Agency further contends that the VCA does not have either Completion Certificate or the Occupancy Certificate under Rule 12 of the OCR from the Collector, Nagpur. 5.2. It is not clear from the material collected during the investigation as to which DCR are being referred to by the Investigating Agency. It is indisputable that the Village Jamtha was not within the jurisdiction of the NIT or the NMC till 31.08.2010 from which date NIT was constituted as the Special Planning Authority for the Nagpur Metro Region. Presumably, the reference in the investigation papers to Rule 12 of the OCR appears to be a reference to the D CR applicable to Class B and C of Municipal Councils. Apparently, a ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 ::: 40 apl85.17.odt decision was taken by the State Government in 1994 that while granting development permission under Section 44 of the MRTP Act, 1966, in rural areas which did not have a development plan, the D CR for B and C Class Municipal Council would be made applicable.
Rules 12 and 13 of the DCR read thus :
"12. Completion Certificate 12.1.Every person erecting a building, shall within one month after completion of such building shall give written notice to the Authority through the qualified Architect/Engineer/Supervisor, regarding completion of work prescribed in the permit in the prescribed form given in Appendix E. 12.1.1.The provision of completion certificate shall not apply to building construction work referred in Bye-law No.4.1.2.
13. Occupancy Certificate 13.1. Within a period of thirty (30) days after receipt of the notice of completion, the Authority shall communicate in the prescribed form given in Appendix F the requisite permission to occupy any such building or to use any building or part thereof effected by any such work.::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 :::
41 apl85.17.odt 13.1.1.The provision of occupancy certificate shall not apply to building construction work referred in Bye-law No.; 4.1.2."
Authority is defined in Section 2.2 as:
"2.2 Authority- The Authority which has been created by a statute and which for the purpose of administering the bye-laws may authorize a Committee or an official to act on its behalf; hereinafter called the Authority."
It is extremely doubtful whether every provision of the said OCR was intended to be made applicable in rural areas, and whether the Collector would be an authority within the meaning of Rule 2.2 or Rules 12 and 13 of the said DCR.
The investigation papers reveal that there is no inquiry made from the Collector, Nagpur as to whether, at the relevant time, it was expected that Completion Certificate or Occupancy Certificate should be obtained from the Collector, Nagpur and whether the Collector has in fact granted such Certificates to similarly situated construction/projects in rural areas.
5.3. Even if it is assumed that the Occupancy Certificate or Completion Certificate was required to be obtained from the ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 ::: 42 apl85.17.odt Collector, Nagpur, the omission to do so can hardly be a rash and negligent act attracting Section 336 of Indian Penal Code. I may reiterate that there is no material to suggest even prima facie that the construction is not stable or possess any danger to human life or personal safety. The omission to obtain Completion Certificate or Occupancy Certificate would not ipso facto be a rash and negligent act within the meaning of Section 336 of the Indian Penal Code.
5.4. It is alleged in the FIR that although Fire No Objection Certificate showed the occupancy capacity 34,571, the VCA sold approximately 43,000 tickets. A similar, allegation is found in the Investigation Report. I have perused the provisional No Objection Certificate dated 18.2.2014 issued by the Director, Maharashtra Fire Services. I have also perused the final No Objection Certificate dated 17.10.2015 and the communication dated 3.2.2017 issued by the Director, Fire Services which is to the effect that the occupancy load should be read as 44694. It is true that the letter correcting the occupancy load is post FIR and to that extent, no fault can be found to the extent the FIR alleges that the VCA sold tickets in excess of occupancy load. However, the question is whether the prosecution should continue. In this context, the fact that the highest statutory authority i.e. the Director, Fire Services appointed under Section 18 of the Maharashtra Fire Prevention and Life Safety Measures Act, 2006 ("Fire Act") has clarified that occupancy load in the Fire NOC be ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 ::: 43 apl85.17.odt read as 44,694 rules out the justifiability continuing with the prosecution.
5.5. The only allegation in the FIR indicating the irregularity in the Fire NOC is the load occupancy and the allegation that the VCA sold tickets in excess of the load capacity. The Investigation Report however, further alleges that the VCA did not have valid fire NOC as it was not issued by the Competent Authority and makes a reference to letter dated 11.2.2017 issued by the Chief Fire Officer, NMMC. The said letter is addressed by one Mr. Rajendra Uchake to the ACP, Songaon Division, Nagpur and is apparently issued in response to the queries of the Investigating Agency. One of the answers of the Chief Fire Officer is that the Director, Maharashtra Fire Services was not competent to issue the final NOC dated 17.10.2015, is quite strange. I have perused the Fire Act and the Maharashtra Fire Prevention and Life Safety Measures Rules, 2009 ("2009 Rules") framed thereunder. The record reveals that, it is the case of the VCA that in addition to the provisions and final NOC issued by the Director, Maharashtra Fire Services, VCA already had certificates issued by the License Authority twice a year in the months of January and July as is envisaged under Rule 4 of the 2009 Rules. No attempt is made to make any inquiry much less a detailed inquiry with the statutory authority under the Fire Act vis-a-vis the statement of the Chief Fire Officer, NMC. I must say that in view of the holistic reading of the ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 ::: 44 apl85.17.odt Fire Act and the 2009 Rules, the investigation papers do not conclusively establish that the Director, Maharashtra Fire Services was not competent to issue the Fire NOC. Be that as it may, in the teeth of the Fire NOC issued by the highest statutory authority, it cannot be said that the office bearers of the VCA acted with such rashness and negligence as would make them criminally culpable.
5.6. Going beyond the FIR, the Investigation Report alleges that consent to establish and consent to operate from MPCB was not obtained. It is extremely doubtful whether such consent to establish and consent to operate was necessary in law. However, assuming that such consent was/is a requirement, failure to obtain such consent can hardly attract Section 336 of the Indian Penal Code. If there is any violation of the Environment Act or any Rules and Regulations framed thereunder, such violation may attract penalty under the Environment Act or the rules. By no stretch of imagination can the alleged transgression of not obtaining the MPCB consent, be a rash and negligent act with criminal culpability. Similarly, the alleged shortage of parking space referred to in the Investigation Report (no reference in FIR) is of no relevance. VCA contends that ample parking space was/is available. Be that as it may, this can hardly lead to an inference of the negligent act. ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 :::
45 apl85.17.odt 5.7. Again going beyond FIR, the investigation report alleges that the Environment Clearance Certificate was mandatory and was not obtained. This contention is against suspect and it is doubtful whether the Environmental Clearance Certificate was necessary. I need not dilate on the issue any further since assuming that such certificate was necessary and was not obtained, the same has no relevance whatsoever to the offence alleged. 5.8. I am of the respectful opinion that there is no justification whatsoever in continuing with the prosecution for the offences punishable under Section 336 of the Indian Penal Code.
6. Whether there is any justification for continuing the prosecution for offences punishable under Section 188 of the IPC and Sections 131(a) and 135 of the Police Act?
6.1. The relevant provisions read thus:
"188. Disobedience to order duly promulgated by public servant. - Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 ::: 46 apl85.17.odt property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both;
and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Explanation.-lt is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.
Illustration :
An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street.::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 :::
47 apl85.17.odt A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section."
131. Penalty for contravening rules. etc., under Sec.
33. -Save as provided in Sec. 131-A, whoever-
(a) contravenes any rules or order made under Sec. 33 or any of the conditions of a licence issued under such rule or order,
(b) abets the commission of any offence under Cl. (a) shall, on conviction be punished-
(i) if the rule or order under which the said licence was issued was made under Cls. (d), (g), (h), (i), sub- clauses (i) and (ii) of Cl. (r) or C1. (u) of sub-section (1) of Sec. 35, with imprisonment for a term, which may extend to eight days or with fine which may extend to fifty rupees or with both;
(ii) if the rule or order contravened was made under Cl. (x) of sub-section (1) of Sec. 33, with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees or with both;
(iii) if the rule or order contravened or the rule or order under which the said licence was issued was ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 ::: 48 apl85.17.odt made under Cis. (n) and (o) of sub-section (1) of Sec. 33 with fine which may extend to two hundred rupees;
(iv) if the rule or order contravened was made under Cl.(b) of sub-section (1) of Sec. 33 and prohibits the sale or exposure for sale of any goods on any street or portion thereof so as to cause obstruction to traffic or inconvenience to the public- (a) for the first offence with imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees or with both; and (b) for a subsequent offence with imprisonment for a term which may extend to six months and with fine which may extend to five hundred rupees; and '
(v) if the rule or order contravened or the rule or order under which the said licence was issued 1 was made under any clause of sub-section (1) of Sec. 33 and for the contravention of which no penalty is provided under this section, with fine which may extend to fifty rupees.
135. Penalty for contravention of rule or directions under Sec. 37, 39 or 40. - Whoever disobeys an order lawfully made from Sec. 37, 39 or 40 or abets the disobedience thereof shall, on conviction, be punished,
(vi) if the order disobeyed or of which the disobedience was abetted was made under sub-section (1) of Sec. 37 or under Sec. 39, or Sec. 40, with ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 ::: 49 apl85.17.odt imprisonment for a term which may extend to one year but shall not except for reasons to be recorded in writing, be less than four months and shall also be liable to fine, and
(vii) if the said order was made under sub-section (2) of Sec. 37 with imprisonment for a term which may extend to one month or with fine which may extend to one hundred rupees, and
(viii) if the said order was made under sub-section (3) of Sec. 37, with fine which may extend to one hundred rupees.
6.2. In support of the applicability of Section 188 of the IPC, investigation report places reliance on the alleged violation of the Orders referred to in Paragraph 3.6 supra. Similarly, Section 131(a) and 135 of the Police Act are invoked on the allegation of violation of Orders dated 24/1/2017 referred to in paragraph 3.6 supra. Having perused the Order dated 24/1/2017 promulgated under Section 37(1) and (3) of the Police Act, I have no doubt that the said Order is of no relevance. Neither the FIR nor the investigation report throws any light on how the said Order is violated by the office bearers of the VCA. I have also perused the Order dated 24/1/2017 issued under Section 33(1) and 36 of the Police Act. One of the reasons for promulgation of the said Order is the maintenance of peace during the festival season and the ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 ::: 50 apl85.17.odt cricket match. I do not see any violation of the said Order by the office bearers of the VCA. Neither the FIR nor the investigation report makes out a case of violation of the said Order. In so far as non compliance of the instructions of the collector in letter dated 20/1/2017 and non-compliance of instructions of the commissioner given vide letter dated 11/1/2017, no offence under Section 188 is even prima facie made out. Firstly, it is extremely doubtful whether the instructions or conditions would be an order promulgated by a public servant and, secondly, and more importantly, assuming there be any breach, Section 188 would not be attracted unless it is prima facie shown that the public servant promulgated an order which he was lawfully empowered to do and the said order was disobeyed which disobedience resulted in the consequences referred to in Section 188. I see absolutely no justification for continuing the prosecution of offences under Sections 188 and Sections 131(a) and 135 of the Police Act.
Conclusion
7.I would strongly suggest that there is no justification for continuing with the prosecution in relation to FIR/Crime 60/17 for offences punishable under Sections 188 and 336 of the IPC and Sections 131(a) and 135 of the Police Act. ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 :::
51 apl85.17.odt (ROHIT DEO) Advocate General of Maharashtra"
26. We place on record our appreciation to the learned Advocate General who has spent his valuable time and prepared the elaborate report after considering the entire provisions and the law laid down by the Apex Court.
27. Be that as it may, even independent of the report of the learned Advocate General, we are of the considered opinion that the Investigating agency has utterly failed to point out any material to establish that there exists ingredients to constitute the offences punishable under Sections 188, 336 of the Indian Penal Code and Sections 131A and 135 of the Maharashtra Police Act. As discussed by the learned Advocate General, there is no material to show that the V.C.A. Stadium is structurally unsafe or is dangerous to human life or the personal safety of others. On the contrary, the communication addressed by the Nagpur Improvement Trust to the Maharashtra Pollution Control Board would show that the construction done at the site is as per the plan approved by the then Planning Authority i.e. Collector, Nagpur on the recommendations of the Town Planning Department.::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 :::
52 apl85.17.odt
28. It appears that every attempt was made by the Investigating agency to dig up material from whatever sources so as to show that there exists some material for the offences for which the F.I.R. is lodged. An information was sought from various Authorities like the Nagpur Improvement Trust, the Maharashtra Pollution Control Board, the Fire Department of Nagpur Municipal Corporation etc. We find that the learned Advocate General has rightly concluded that there was no justification of whatsoever nature in continuing with the prosecution for the offence punishable under Section 336 of the Indian Penal Code. We also find that the learned Advocate General has also rightly found that there was no material even to proceed with for the offences punishable under Sections 131A and 135 of the Maharashtra Police Act.
29. Insofar as the offence punishable under Section 188 of the Indian Penal Code is concerned, reliance was sought to be placed on the order issued under Section 37(1)(3) of the Maharashtra Police Act. The learned Advocate General has specifically opined that neither the F.I.R. nor the Investigating papers showed as to how the order dt.24.1.2017 was disobeyed. The learned Advocate General has further opined that one of the reasons for promulgation of the ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 ::: 53 apl85.17.odt said order was maintenance of peace during festival season and the Cricket match. The learned Advocate General has opined that there was no violation of the said order by the Office Bearers of the Vidarbha Cricket Association.
30. It could thus be seen that, even taking the F.I.R. at it's face value, the ingredients constituting the offences for which the F.I.R. is registered are not made out. We had given complete liberty to the respondents/Authorities to investigate the matter. It appears that the Investigating agency has fully utilised that liberty and has made every attempt to dig up material so as to ensure that they are in a position to show that there exists some material to connect the applicants with the offences for which the F.I.R. is lodged. However, even after thorough attempt is made to dig up material under the garb of investigation, after placing entire material before the learned Advocate General, the learned Advocate General has come to a considered opinion that the material in no way connects the applicants with the offences for which the F.I.R. is registered. We make it clear that since the applicants have withdrawn the allegations against the Police Officers, we do not propose to go into the allegations initially made in the application that the F.I.R. is ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 ::: 54 apl85.17.odt outcome of the incident that happened between 27.1.2017 to 29.1.2017.
31. Though the applicants have now withdrawn their allegations that registration of the F.I.R. is an outcome of the dispute that took place between the Office bearers of Association on one hand and the Police Authority on the other hand; however, the manner in which the matter has proceeded like lodging of the F.I.R. immediately within a period of 48 hours from the time of the match taking place, every attempt being made during investigation to dig up material, so as to somehow show that some material exists to connect the applicants with the offence for which the F.I.R. is registered, the suggestion being given at the instance of respondents to refer the matter to the learned Advocate General and thereafter taking volte-face by not adhering to the opinion of the Advocate General, in our view, atleast to some extent fortifies the apprehension of the applicants.
32. However, one interesting fact cannot be ignored in the present matter. One of the offences for which the applicants are charged with is the offence punishable under Section 336 of the ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 ::: 55 apl85.17.odt Indian Penal Code. It deals with the act which is done so rashly or negligently so as to endanger human life or the personal safety of others. From the perusal of the material placed on record, it appears that, it is the view point of Police department that the Stadium is constructed in such a rash and negligent manner, that it endangers human life or personal safety of others. The applicants have placed on record various photographs which are not denied by the respondents. Some of the photographs show the Senior Officers of the Police department sitting in various boxes of the Stadium viewing the Cricket match. In one of the photographs, the Police Officers are seen sitting in a Control Room. The photographs also show that there are various T.V. Screens. However, the photographs would show that all the viewers are looking in the front direction whereas the Screens are at their back. We ask a question to ourselves as to whether when the Stadium is of such a quality which would cause danger to the human life, would the Police Officers sit conveniently in such a large number in the said Stadium risking their lives. We again ask a question to ourselves as to whether in the Control room in the Stadium, the persons who are supposed to control the activities are required to look at the CCTV Cameras or in the opposite ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 ::: 56 apl85.17.odt directions. We need not elaborate much on the said aspect since the applicants have themselves withdrawn their allegations.
33. Nodoubt that the scope of interference while quashing the F.I.R. while exercising jurisdiction under Section 482 of the Code of Criminal Procedure is very limited. Parameters have been laid down by the Apex Court in the case of State of Haryana and Others .vs. Ch. Bhajan Lal and Others reported in AIR 1992 SC 604. We find that the present case would be squarely covered by clauses (1), (2) and (5) of the parameters laid down by the Apex Court, which read thus :
(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 ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 ::: 57 apl85.17.odt Magistrate within the purview of Section 155(2) of the Code.
(3)..........
(4)..........
(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.
34. In any case, the learned Advocate General on the suggestions given by the respondents/Authorities themselves has applied thorough mind to the entire investigating papers and has come to the conclusion that leave aside the F.I.R. even the investigation papers themselves do not point out any material to connect the applicants with the offences for which the F.I.R. is registered.
35. In that view of the matter, we are of the considered view that continuation of the proceedings against the applicants would be nothing else but an abuse of process of law. We find that the interest of justice demands that the proceedings be quashed and set aside. ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 :::
58 apl85.17.odt Rule is, therefore, made absolute in terms of prayer clause (1) of Criminal Application No.85 of 2017.
No order as to costs.
JUDGE JUDGE jaiswal ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 ::: 59 apl85.17.odt ::: Uploaded on - 24/03/2017 ::: Downloaded on - 25/03/2017 00:14:08 :::