Delhi District Court
Sahil Jain vs State Cr No.567/17 on 24 July, 2018
Sahil Jain Vs State CR No.567/17
IN THE COURT OF SH. MANISH YADUVANSHI, ADDL.
SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
C.R. No. 567/17
IN THE MATTER OF:
Sahil Jain,
S/o Sh Achal Kumar Jain,
R/o A31, DLF PhaseI,
Gurgaon, Haryana. ....... Petitioner
Versus
State ...... Respondent
Date of Institution : 20.12.2017
Date of arguments : 20.07.2018
Date of Judgment : 24.07.2018
JUDGMENT ON REVISION PETITION
U/S 397, 398 & 399 CR.P.C.
1. The present revision petition under Section 397, 398 & 399 of Cr.P.C assails the impugned order dated 10.8.2017 wherein, the Result: Petition Dismissed. Page 1 of 10 Sahil Jain Vs State CR No.567/17 ld. Trial Court was pleased to reject the plea of dropping the proceedings against the petitioner/accused under Section 258 Cr.P.C and ordering to frame Notice against him for offences punishable under Section 284/337/304A IPC.
2. Revision petition was accompanied with an application seeking condonation of delay which was rejected by the Court on 22.2.2018 and the said order stood modified in Crl. M.C No. 2079/2018 vide orders of the Hon'ble High Court of Delhi dated 23.4.2018 with directions to this Court to hear the present petition on merits.
3. It has been argued accordingly by both the sides. Trial Court record was also summoned.
4. The facts in brief are regarding information to local Police Station about death of two persons namely Kamal and Rinku at DDU hospital where they were brought dead from Premises No. C299, PhaseII, Mayapuri Delhi. On this address, a factory in the name and style of Jain Soap Factory is being run.
5. One Jagdish (Helper) and one Lakhender Singh (Driver) employed with the Rajasthan Trailor Transport Company, Result: Petition Dismissed. Page 2 of 10 Sahil Jain Vs State CR No.567/17 Jaipur, Rajasthan had arrived there on 13.8.2009 on tanker bearing No. RJ14 2G 9115 with a loaded consignment of 'Saabun Ka Tail, Acid Oil' from Gujarat to Jain Soap Factory. The tanker was emptied as per process outside the factory. The factory owner i.e. the present petitioner asked his employees to enter into the tanker to clean it. Jagdish objected and cautioned that there could be gas in the chamber of the tanker and nobody was wearing the mask etc. Still, the petitioner repeated his instructions. Rinku entered inside the tanker and immediately became unconscious. Second worker namely Kamal entered the tanker to save Rinku and meet the same fate. Jagdish climbed on the tanker and entered the same. He started to feel uneasy and was pulled out by other workers. He fainted for some time.
6. The investigation made in the case revealed complicity of the present petitioner for the offences of which a Notice is to be served to him in accordance of Section 251 Cr.P.C.
7. In the Trial Court, the petitioner pleaded for an order to drop the proceedings under Section 258 Cr.P.C stating that FSL report shows absence of any chemical in the goods supplied; the tanker driver had himself admitted that 'Sulphuric Acid' was Result: Petition Dismissed. Page 3 of 10 Sahil Jain Vs State CR No.567/17 carried in the tanker prior to delivery of the present load and the criminal responsibility is of the transporter who is required to unload the goods.
8. The ld. Trial Court disagreed and did not exercise the discretion under Section 258 Cr.P.C observing presence of primafacie material to suggest that petitioner was warned regarding presence of acid gas and despite it, he let the workers to go inside the tanker resulting into death of labourers and simple hurt upon the complainant.
9. The petitioner's counsel argued the points earlier considered in the Ld. Trial Court specifically highlighting from the FSL report stating that out of four chambers of the tanker, the FSL report detected no presence of any noxious smell. It is only in the forth chamber that noxious smell was observed and its examination showed presence of 'Hydrogen Sulphide Gas' in the chamber.
10. The post mortem led to preservation of viscera sample and 'subsequent opinion report' dated 16.4.2015 by Dr. B.N.Mishra, M.OForensic Expert and Criminoligist, Forensic Medicine, DDU Hospital reveals that the cause of death was due to Result: Petition Dismissed. Page 4 of 10 Sahil Jain Vs State CR No.567/17 'inhalation of Hydrogen Sulphide gas' and manner of death is 'accidental'.
11. Ld counsel contended that he has nothing to do with the factory as he is not in its charge. He contends that the tanker load only consisted of 'Fatty Acid'. He relies on Annexure B to the petition which is a print out of the term, "Fatty acid" and its constituents downloaded from the Web portal i.e. "Wikipedia, the free encyclopedia". According to him, it was the manufacturer/supplier's liability to ensure the consignment. He therefore, contends that the conduct of the driver and the helper is apparent that they had knowledge of possible presence of Hydrogen sulphide gas in the chamber as the same truck had consigned the Sulphuric acid on its previous visit.
12. The ld. Prosecutor has brushed aside all these arguments submitting that at the stage of Notice, the Magistrate is only to apply mind regarding existence of primafacie case and there is discretion with the Magistrate under Section 258 Cr.P.C to not to drop the proceedings and/or pass a judgment of acquittal. It is submitted that charge sheet is replete with statement of witnesses showing the due caution which was asked to be Result: Petition Dismissed. Page 5 of 10 Sahil Jain Vs State CR No.567/17 exercised from the petitioner which he failed to do and therefore, being the owner of the factory (as per witnesses), he was negligent in his conduct with respect to the poisonous substance; that his such conduct resulted into hurt and endangerment to the life and personal safety of complainant Jagdish. His such act also resulted in death of Kamal and Rinku due to negligence not amounting to culpable homicide.
13.I have carefully gone through the record.
14.The power vested in Magistrate under Section 258 Cr.P.C is absolutely discretionary. In such cases where the provision applies, the provision empowers the Magistrate to stop the proceedings without pronouncing judgment or pronouncing a judgment of acquittal or releasing the accused depending upon the stage at which case has reached.
15. However, this does not imply that an order passed under Section 258 Cr.P.C is not an 'interlocutory' order, although, it may be passed at any stage. It is settled law that a Revision and not Appeal lies against such an order. Reference is placed on State of Gujrat Vs Magan Lal Goverdhan Dass 1995 Crl.L.J 1581 (Guj.) Result: Petition Dismissed. Page 6 of 10 Sahil Jain Vs State CR No.567/17
16. The Magistrate is therefore, enjoined with a great responsibility to exercise the discretion with utmost caution. Such an order should be passed judicially taking into consideration all relevant circumstances. The discretion should be exercised reasonably and generally only in very special and compelling circumstances which make it difficult or important for the Magistrate to proceed in the usual way by taking evidence as provided in Section 254 Cr.P.C of Chapter XX of the Code.
17. Though, it is not necessary for Magistrate to serve a formal Charge on an accused under Section 251 Cr.P.C (as this case is a summons trial case), yet there is no doubt that accused has right of hearing at the stage of Notice even in a summon trial case. Regard being had to S.C Rastogi Vs Renu Kalra 2002 Crl.L.J 2269 (Del).
18. With the above referred law on the subject, I have proceeded to analyse the impugned order to see if it comprises of any illegality, impropriety or error of finding.
19. The petitioner is projected as the owner of the Jain Soap Factory and it will be for the prosecution to prove the same in Result: Petition Dismissed. Page 7 of 10 Sahil Jain Vs State CR No.567/17 the testimonies of its witnesses including the witness Jagdish as well as the other public witnesses cited by it.
20. That one of the chamber contained material which produced Sulphuric acid is not disputed in view of the FSL report and there is oral accord of the witnesses that the petitioner was cautioned regarding presence of gas in the Acid oil and that the workers were not wearing any protective gear.
21. The delivery challan seized by the IO shows that the tanker was carrying 'fatty acid residue'.
22. It is argued that fatty acid does not constitute or emanates sulphuric acid.
23. In this context, it can be found in the statement of Bala Lakhender Chaudhary (Driver) under Section 161 Cr.P.C that he did load and transport 'Sodium Sulphide' in the same tanker from Alwar, Rajasthan and the load was emptied in 'Rajasthan Electric factory' at Kota. However, the witness also clarified that the tanker was cleaned at the same factory with the help of tube well water. Secondly, when he was returning to Gujrat, he got the tanker cleaned again on 9.8.2009 at Palampur. Thirdly, Raju Helper had cleaned all the cabins from inside with the Result: Petition Dismissed. Page 8 of 10 Sahil Jain Vs State CR No.567/17 help of cloth. Forthly, at 'N.K Fine company', he was inside the tanker and the company surveyor had checked the tanker from inside and only then the tanker was allowed to go in the factory premises.
24.Next load of consignment was consigned to be delivered to Jain Soap Mills.
25.The Court is conscious of the fact that the IO did not investigate these aspects separately but the fact remains that these statements are on record. Statement of Hari Nath, Surender Kumar etc. recorded by the police reveals that the present petitioner and his father Sh Achal Kumar Jain are the owners of Jain Soap Factory and both of them had been looking after the work of the factory.
26.In the given circumstances, I find presence of primafacie case against the petitioner for all the three offences alleged against him.
27. There is no force in the argument made by the petitioner.
Consequently, I find no impropriety, illegality or error of finding in the order impugned.
28. The revision petition is accordingly dismissed.
Result: Petition Dismissed. Page 9 of 10Sahil Jain Vs State CR No.567/17
29.Let copy of this judgment be sent to the Ld. Trial Court/its successor Court for intimation alongwith Trial Court record.
30.Petitioner is directed to appear before the Ld. Trial Court on 4.8.2018 for further proceedings.
31. File of revision be consigned to record room after all necessary compliances.
ANNOUNCED IN THE OPEN ( MANISH YADUVANSHI ) COURT ON : 24.07.2018. ASJ05 (West), THC, Delhi.
Digitally
signed by
MANISH
MANISH YADUVANSHI
YADUVANSHI Date:
2018.07.26
13:09:03
+0530
Result: Petition Dismissed. Page 10 of 10