Himachal Pradesh High Court
A. Adithya & Others vs State Of Himachal Pradesh on 5 December, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.MMO No. 357 of 2015
Reserved on 21.11. 2017
.
Date of Decision: 05.12.2017
A. Adithya & others ......Petitioners
Versus
State of Himachal Pradesh ..... Respondents
Coram:
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge
Whether approved for reporting?1 Yes.
For the Petitioner: Mr. Pattabhi Vemulapati, Advocate
with Mr. Tunjya N. Ganguly and Mr.
Rajnish Maniktala, Advocates.
For the respondent: Mr. Virender Kumar Verma, and Mr.
Varun Chandel, Addl. Advocate
Generals, for the respondent/
State.
Mr. Suneet Goel, Advocate, for
proposed respondents No.2 to 25.
Chander Bhusan Barowalia, J.
The present petition is maintained by the petitioners under Section 482 Cr.P.C. for quashing the proceedings in a case titled State versus Mahender Singh 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 2& others, pending before the learned Additional Chief Judicial Magistrate, Court No.1, Mandi, District Mandi, H.P. and it is prayed in the petition:-
.
(A) that the charge-sheet dated 04.09.2014, in FIR No.61 of 2014, dated 08.06.2014, filed by the Police under Sections under Section 336,304-A read with Section 34 IPC, at Police Station, Aut, District Mandi, Himachal Pradesh, in PC No.12395/2013 (96-II/14), titled State versus Mahender Singh & others, pending before the Additional Chief Judicial Magistrate, Court No.1, Mandi, District Mandi, H.P., as against the petitioners, may be quashed and set aside;
(B) that all the proceedings in PC No. 12395/2013 (96-II/14), titled State versus Mahender Singh & others, pending before the Additional Chief Judicial Magistrate, Court No.1, Mandi, District Mandi, H.P., as against the petitioners, may be quashed and set aside;
(C) that orders passed by the learned Additional Chief Judicial Magistrate in case PC No. 12395/2013 (96-II/14), titled State versus Mahender Singh & others, as against the petitioners, may be quashed and set aside;::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 3
2. Briefly stating the facts giving rise to the present petition are that proceedings from PC No.12395/2013 (96- II/14), are pending before the Additional Chief Judicial .
Magistrate, Court No.1, Mandi, District Mandi, H.P., against the petitioners herein, besides nine accused persons petitioners herein arraigned as A-7, A-8 and A-9 for the offences punishable under Section 336 of the Indian Penal Code and Section 304 A, read with Section 34 of the IPC. It has been alleged that on a complaint lodged at about 10.30 pm, on 08.06.2014, by one of the Faculty Members of the petitioner institution named A. Adithya, petitioner No.1 in this petition, the ASI, Police Station, Aut, registered the same, as FIR No.61 of 2014, at Police Station, Aut, under Section 336 and 304-A, IPC at 11.15 pm on the same day. In the complaint it has been alleged that 48 students, including 35 boys and 13 girls accompanied by 2 faculty members of the College and one lady staff member and her son, two tour Operators, three Drivers, four Cooks and two Cleaners, two Booking Managers were on way from Shimla to Kullu-Manali in two private buses. They reached Shala-Nala at about 6.45 pm near Thalout and at that time, ::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 4 the students wanted to take photographs of the river and both the bus drivers parked their buses on the road side, thereafter, all the students went towards the river with the .
tour manager. It has been alleged that the water in the river was very less and some students were standing and some students were seating on the stones and were trying to take photographs including group photographs. Suddenly, there was big flow of water in the river. It has further been alleged that all got panicked and were trying to run to the bank of river. Some were able to reach the dry land and save themselves, whereas many got washed away by the heavy flowing, fast moving turbulent river water, wherein 06 girl students and 18 male students and one tour managers got washed away. It is alleged in the complaint that the accident took place due to the negligence committed by the Larji Dam employees, who released the dam water without any sort of caution or warning including blowing the Hooter/ Siren. Accordingly, the information under Section 154 Cr.PC was given to the police by petitioner No.1. Further, it has been alleged that the police investigated the case and filed the Charge-Sheet/ Challan on 04.9.2014, in the Court of ::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 5 learned Addl. Chief Judicial Magistrate, Court No.1, Mandi and case file bearing P.C. No.96-II of 2014, against the nine accused persons, including the petitioners herein and Court .
below issued process for their appearance.
3. The particulars of the accused persons, as mentioned in para 2 of the petition, are as under:
A-1 Mahendra Singh Dhatwalia, Senior Executive Engineer, Arbitration and Maintenance Division, H.P. State Electricity Board, Shadwai;
A-2 Mandeep Singh, Resident Engineer, Larji Power House, Thalaot;
A-3 Harbans Singh, Fitter, on duty on 08.06.2014 at the relevant time in the Dam;
A-4 Balbir Singh, Assistant Executive Engineer-In-
charge of Barrage, Control Room and Regulation of water level in the H.P. State Electricity Board, Thalaot, District Mandi;
A-5 Prem Sukh, Additional Assistant Engineer of H.P. State Electricity Board, Thalaot;
A-6 Ved Prakash, Shift Engineer, Larji Power House, HPSEB, Dwada, District Mandi;
A-7 is petitioner No.1 and Faculty member and Assistant Professor;
A-8 is petitioner No.2 and a lady staff member; and A-9 is petitioner No.3 and a Faculty member and Associate Professor of M/s VNR Vignana Jyothi Institute of Engineering & Technology, Hyderabad (Telangana).::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 6
4. It has been alleged that during investigation, it was found that on 08.06.2014, at about 5.00 pm there was a .
discharge of 30 cumecs of water from the dam, at 6.00 pm there was a discharge of 20 cumecs of water from the dam and at 7 pm there was huge discharge of 450 cumecs of water from the dam, which caused sudden rise in the water of River Beas and resulted in unsuspecting 24 students and one team member getting washed away. So, it has been alleged that the incident happened due to negligence and rashness of the concerned officials. In the charge sheet it has been alleged that Dam Authorities did not blow the Sirens/ Hooters properly before release of the water from the Dam. It was found that there were three Hooters which should be sounded out of which one Hooter was at the dam which was being used while releasing the water but the same was not audible due to the severe noise of traffic. The second one was at the Exit Tunnel Pipeline coming towards Aut, but no one was employed there to operate this second Hooter and the third Hooter was stated to be installed in the Project Colony at Thalaot, but it was found not operational.
::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 7After Thalaot no Hooter was deployed up to Dwada so as to warn, alert or caution the public. No Warning Boards were installed to warn the public. It has also been alleged that .
nothing was there to warn the public in instances of release of water. So, the investigation holds the higher authorities of the Electricity Board guilty of negligence.
5. Further, it has been alleged that during the course of investigation a Special Force was sent to Hyderabad for conducting investigation which was headed by the Deputy Superintendent of Police, namely Amit Sharma, who collected the reference and records of the College tour programme after visiting said VNR Vignana Jyothi Institute of Engineering & Technology and also recorded the statements of the witnesses. On such investigation, Section 34 IPC had been added and the petitioners were added as the accused. It has also been alleged that lateron another Special Police team was sent to Hyderabad to complete the formalities including arrest and release of the petitioners on bail. It has also been alleged that the allegations against the petitioners are that they stopped the two buses midway on the road side and allowed ::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 8 the students to approach the bed of River Beas and also allowed them to take photographs on the river bed, as it was their duty and responsibility to control and stop the .
students, who went to the river site where there was danger.
Summons were issued by the learned Court below to the petitioners and they appeared before the Court and were provided copies of Charge Sheet/ Challan and accompanying documents. It has been alleged that the documents were in local dialect of the language of Mandi Court, the petitioners from Telugu Speaking State, were unable to understand the contents of the said documents, tried for and were unable to get English Translation, therefore all the documents were got translated from a private Translator Agency at Hyderabad. It has been alleged that the Petitioners are innocent of the offences alleged against them. It has also been submitted that on perusal of the Challan without any additions or subtractions, does not make out any of the offence(s) alleged against the petitioners or otherwise. It has been alleged that no investigation of any sort had been done by the police against them to come to the conclusion that they are liable for criminal negligence.
::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 96. It has been contended that the Charge-Sheet goes to show that the concerned officer of the Larji Dam, were only responsible for the incidence and the petitioners .
were not at all responsible. Further no sign posts or any Guards or other such steps taken anywhere at the incident site to caution or warn the public of the danger of any sudden release of water from the dam. Therefore, these concerned officers of Larji Dam are liable under Section 304- A and Section 336 IPC. It has been alleged that the concerned Officers of the Dam were responsible for this incident and they were suspended and some transferred too for their acts and dereliction of duties leading to this avoidable ghastly tragedy. As regards the petitioners, ie. A-
7 to A-9, there is nothing to show that any investigation was done or is there any basis to say how the Investigating Agency had come to the conclusion to make them liable for any of this unfortunate incident. It has been submitted that as per the charge sheet, the petitioners are roped in under Section 34 IPC and not directly under Section 304-A of the Indian Penal Code. It has been alleged that, as the question of provisions of Section 34 IPC are not applicable to the facts ::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 10 and circumstances of the case and as such invoking Section 34 IPC is totally misconceived and legally untenable and unsustainable.
.
7. It has been submitted that the prosecution has admitted that there were no Sign Boards, no caution boards, no sentry or watchman to caution anyone entering the river bed that there is a danger of water being released from the Dam, and so not to enter into the waterless river bed. It is alleged that it is admitted fact that out of three Hooters, which were there, none of them were available to warn and caution the public about the release of the water from the Dam. It has been alleged that any person going to the river side will have absolutely no idea, no knowledge or any indication at least that the empty river bed would suddenly be flooded with huge quantity of gushing waters that would be released abruptly by the Dam officials. It has been alleged that the prosecution has admitted that the river bed was almost dry with hardly 20 cumecs of water flowing. It has been alleged that there is no material on record to impute any knowledge or awareness on the part of the petitioners herein of any such dangerous or fatal ::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 11 consequences of four tour team going to the waterless river bed. It has been submitted that faculty members i.e., petitioners herein, could have been held liable for such rash .
or negligent, if they could have foreseen the dangers ahead.
It has been alleged that this ghastly tragedy was due to the abrupt discharge of huge quantity of water in the river by the concerned officers of the HP State Electricity Board without any warning whatsoever, and as such, the said act and doing by the said officers is the proximate cause of the tragic death of those students and one team member due to the violent force of the water. It has been alleged that it cannot be said there was any direct nexus between the tragic death of the students and the team going to the river along with the faculty members, the petitioners herein.
8. It has been alleged that it is also to be seen that all the students and team members who went to the river bed were majors and were in position to decide for themselves and it is nowhere the case of the prosecution that it was the petitioners who took the students and team members to the river. It has to be seen that these petitioners too would have been victims of the gross and culpable negligent ::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 12 act of the concerned Dam officials and would have got washed away and lost their lives. It has been stated that there being no material on record to proceed against the .
petitioners.
9. It has been alleged that the petitioners were eye witnesses to the ghastly tragedy that took place before them on the evening of 08.6.2014 and it is the 1st petitioner, who gave the complaint to the police, on the basis of which, F.I.R. was registered. It has been submitted that it is a great irony, as much later to the incident, as an afterthought and for the reasons best known to the Investigating Agency i.e. the police officers visited Hyderabad and examined the petitioners and students, and roped in the petitioners. It has also been alleged that the prosecution against the petitioners herein is totally misconceived and is a sheer abuse of process of law, act and may be quashed.
10. It has been alleged that Petitioners have no other remedy except to approach this Court and if relief as prayed for is not granted, they will suffer severe and irreparable loss and injury as the petitioners being from far ::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 13 off places, i.e. Hyderabad, Telangana State, and ordinary employees, suffer the process of facing impugned proceedings, which are vexatious and misconceived.
.
11. Reply to the application filed by the respondent.
In reply, the respondent/State has admitted that charge- sheet under reference is pending before the learned Trial Court and denied the other contents of the application.
However, in reply on merits, it has been submitted that case FIR No.61/2014, dated 08.06.2014, was registered against the Larji Power Project authorities, Thalout for doing an act endangering life and personal safety of others and causing death by negligence of 24 students and 01 team member by suddenly releasing dam water without prior notice/warning.
It has also been submitted that the case was registered on the statement of present petitioner No.1, namely, A. Adithya of Engineering College, Hyderabad. Further, it has been submitted that six persons of Larji Power Project authorities, Thalout were found guilty for releasing sudden water in the Beas river and they were arrested on different dates by the Investigating Officer and also the faculty members/ all petitioners were also arrayed as accused. It ::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 14 has been submitted that as there is sufficient evidence against the petitioners and others, the Investigating Officer prepared challan under Section 173(2), Code of Criminal .
Procedure for offences under the provisions of Section 336, 304-A read with Section 34 IPC. Thereafter, Challan was presented in the Court of Ld. Additional CJM, Court No.1, Mandi. It has been alleged that the charge sheet was filed before the Court on 09.09.2015. It has been admitted that on 08.06.2014, in the evening at about 5.00 pm, there was a discharge of 20 cumecs of water from the Dam, and at 7.00 pm, there was discharge of 450 cumecs of water from the dam, which caused sudden rise in the water of river Beas which resulted into the death of 24 students and 1 team member. However, it is submitted that during the course of investigation, the Investigating Officer met with the parents of the students, who had lost their lives in the unfortunate incident and also recorded the statements of 08 students of VNR Jyoti Institute of Engineering & Technology Hyderabad, under Section 161 Cr.PC, who had returned back to their homes after the incident. These witnesses have also stated that the unfortunate incident ::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 15 could have been avoided, if the petitioners accompanying the students namely, A. Aditya, Dr. C. Kiran and G. Sumabala had taken reasonable care when the bus was stopped near .
the Beas river at Thalot. It has further been submitted that all the petitioners are Assistant Professors of the Institute and were accompanying the students. It has also come in the statement of one of the witnesses that one shopkeeper, namely Puran Chand son of Sher Singh and other inhabitants of that particular vicinity had warned the faculty not to go down near the river, but the petitioners did not stop the students to go down near the river for taking photographs. Thereafter, on finding of sufficient grounds of their arrest, all the petitioners were arrested on 07.08.2015, for committing the offence punishable under the provisions of Section 336, 304-A of the Indian Penal Code.
12. Further, it has been submitted that the petitioners are also liable for the loss of lives of 24 students and 01 team member as the petitioners were required to be prudent enough to foresee the consequences of their gross negligent act and conduct, when the petitioners permitted the students to enter the river for photography etc. It has ::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 16 also been submitted that the concerned officers of the Electricity Board have also been made accused for the negligence on their part. It has further been submitted that .
this unfortunate incident could have been avoided, if the petitioners had exercised their due caution when the bus was stopped near Beas river near Thalout.
13. It has been submitted that the place of incident where the bus was stopped was not included in the list of halts as per the tour programme and the students were directly enroute from Shimla to Kullu. Further that the petitioners have rightly been made accused persons in the charge-sheet in case FIR No.61/14, registered at Police Station, Aut. It has been submitted that during the course of investigation, the Students Tour Programme was taken into possession by the police from the Principal of VNR Jyoti Institute of Engineering & Technology, Hyderabad and the police also met with the parents of the deceased students who lost their lives in the unfortunate incident and had recorded the statements of the 08 students of the above Institute who stated that this unfortunate incident could have been avoided, if the faculty members had taken care ::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 17 and caution. So, on the basis of these statements, all the petitioners were arrayed as accused persons for committing the offence under the provisions of Section 336, 304-A read .
with Section 34 IPC and their names have been figured as accused persons in the Challan presented under Section 173(2) of the Code of Criminal Procedure, on the conclusion of the investigation.
14. It has been submitted that the mere act of the petitioners in permitting the students to enter the river is prima facie evidence of gross negligence on the part of petitioners. It has also been submitted that the death of the 24 students and 01 team member was the direct result of rash and negligent act of the accused persons and the act of the petitioners was proximate cause of the incident. It has been submitted that the rashness of the petitioners was of such a degree as to amount to taking a hazardous step and it was within the knowledge of the petitioners that the hazard was of such a degree that fatal injury was most likely to be occasioned.
15. It has been submitted that the rivers in the hilly areas are never safe to be taken negligently and such rivers ::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 18 often get fierce by flash floods and that even if presumed that there was no dam or no water was gushed out suddenly, still then no person with a prudence of a common .
man would risk his life by entering himself or permitting somebody else to enter the river and if somebody does the same, it is but with clear and instant risk of harm or danger to life and personal safety of the individual or other persons.
Further, it has been submitted that when the water started rising, the local inhabitants of the vicinity blew whistles to warn the members of tour party venturing in the river bed but their efforts failed.
16. In rejoinder, the contents of the reply are denied and those of the petition are re-iterated.
17. Heard. The learned counsel for the petitioners has argued that no case under Section 304 A read with Section 34 IPC is made out and to support his contentions, he has relied upon the judgments rendered in S.N. Hussain versus The State of Andhra Pradesh,(1972) 3 Supreme Court Cases 18, Sushil Ansal versus State through Central Bureau of Investigation, (2014) 6 Supreme Court Cases 173, Pandurang and others versus State of ::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 19 Hyderabad, A.I.R. 1955, S.C. 216, and in Vijendra Singh v. State of U.P., AIR 2017 Supreme Court 860.
18. On the other hand, learned counsel for the .
respondent-State has argued that the charge-sheet has been presented in the Court below and now there is no occasion to this Court to quash the proceedings. He has referred to the statements of Bihari Lal, Pawan Kumar, Kuram Dutt, Digeshwar, Chetan Chavan and others and further argued that the petition devoid of merits deserves dismissal, as the petitioners have chance to argue on the charge in the Court below. He has relied upon the following judgments:
19. In State of Punjab versus Dharam Vir Singh Jethi, 1994 Supreme Court Cases (Cri) 500, wherein it has been held:
"2. Heard learned counsel for the State as well as the contesting respondent. We are afraid that the High Court was not right in quashing the First Information Report on the plea that the said respondent had no role to play and was never the custodian of the paddy in question. In fact it was averred in the counter-affidavit filed in the High Court that the said respondent had acted in collusion with Kashmira Singh resulting in the latter misappropriating the paddy in question. At the relevant point of time the ::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 20 respondent concerned, it is alleged, was in overall charge of the Government Seed Farm, Trehan. This allegation forms the basis of the involvement of the respondent concerned. The .
High Court was, therefore, wrong in saying that the respondent concerned had no role to play. A specific role is assigned to him, it may be proved or may fail. In any case, pursuant to the First Information Report the investigation was undertaken and a charge-sheet or a police report under section 173(2) of the code of criminal procedure was filed in the court. If the investigation papers annexed to the charge-sheet do not disclose the commission of any crime by the respondent concerned, it would be open to the court to refuse to frame a charge, but quashing of the First Information Report was not permissible".
20. The Hon'ble Supreme Court in Vineet Narain and others versus Union of India and another, (1996) 2 Supreme Court Cases 199, has held:
"4. In this proceeding we are not concerned with the merits of the accusations or the individuals alleged to be involved, but only with the performance of the legal duty by the Government agencies to fairly, properly and fully investigate into every such accusation against every person, and to take the logical final action in accordance with law.::: Downloaded on - 08/12/2017 23:02:34 :::HCHP 21
5. In case of persons against whom a prima facie case is made out and a charge sheet is filed in the competent court, it is that court which will then deal with that case on merits, in .
accordance with law."
21. In Anukul Chandra Pradhan versus Union of India and others, (1996) 6 Supreme Court Cases 354, it has been held:
"4. In view of the fact that charge sheet has been filed under Section 173 Criminal Procedure Code in each of the above three cases in the competent court, it is that court which is now to deal with the case on merits, in accordance with law. Any direction considered necessary for further investigation, if any, or to proceed against any other person who also appears to have committed any offence in that transaction, is within the domain of the concerned court according to the procedure prescribed by law. The purpose of this proceeding is to command performance of the duty under law to properly investigate into the accusation of commission of the crime and to file a charge-sheet in the competent court, if a prima facie case is made out. This purpose has been served in the above three cases, in respect of which no further action in this proceeding is called for."::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 22
22. In Nancy Bhatt and another versus State of Himachal Pradesh and another, (Cr.MMO No.183 of 2014), it has been held:
.
"2. A preliminary objection has been raised by the respondents that once the FIR has culminated in charge-sheet, the present petition has been rendered infructuous, because it is not the FIR but the charge-sheet which forms the basis of criminal trial.
7. Admittedly the FIR is not a substantive piece of evidence. It is information of a cognizable offence given under Section 154 of the Code of Criminal Procedure (for short 'Code'). The legislature in its wisdom under the provisions of the Code has given limited/restrictive power to the Court to intervene at the stage of investigation by the police. Investigation is the exclusive domain of the police. Ordinarily, it is only when the charge sheet is filed that the Court is empowered either to take cognizance and to frame charge or to refuse to do the same.
8. The FIR is the sheet anchor on the basis of which the investigation ensues. However, once the FIR on the basis of which investigation was initiated has culminated into a charge-sheet, the FIR does not remain the sheet anchor because the same alone then cannot be read and has to be read along with the material gathered by the ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 23 investigating agency during the course of the investigation.
9. It would, therefore, not be permissible for this Court to quash the FIR or else that would .
amount to annihilating a still born prosecution by going into the merits on the plea of proof of the prima facie case. Further, adverting to those facts and giving findings on merits would otherwise result in the grossest error of law because this Court in exercise of its jurisdiction under Section 482 of the Code cannot undertake pre-trial of a criminal case."
23. A Single Bench of this Hon'ble Court in Cr.MMO No.56 of 2015, titled Lashkari Ram versus State of H.P. & Anr., has held:
"7. The prosecutrix in her statement under section 154 Cr.P.C. has specifically stated that on 9.6.2014 at about 11 a.m. when she was all alone in the courtyard and washing clothes then the petitioner came there and threatened her that she should advise her husband not to set his eyes on the land or else he alongwith his son would kill him. Thereafter with the bad intention he caught hold of the prosecutrix and pushed her because of which she sustained injuries on her left leg as the same struck against the stairs resulting in further injuries to her knee. This statement of the prosecutrix is further ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 24 corroborated by the Medico Legal Certificates (MLCs).
8. Though the learned counsel for the petitioner would argue that because the prosecutrix is a .
Staff Nurse, therefore, she has manipulated the MLCs and it was on the basis of such false documents that petitioner is sought to be involved in the present case.
9. The mere fact that prosecutrix is working as Staff Nurse would not in itself establish that MLCs are in any way false, however, these are the matters which are required to be considered during the course of the trial and at pre sent the court is only required to consider the allegations as contained in the First Information Report and the final report, which as observed earlier, prima-facie, indicate and make out the commission of offence for which the petitioner has been charged."
24. In State of M.P. versus Awadh Kishore Gupta and others, (2004) 1 Supreme Court Cases, 691, it has been held:
"8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 25 inherent jurisdiction may be exercised, namely,
(i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is .
neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 26 justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that .
authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercises of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
11. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 27 decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual .
or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See :
Janata Dal v. H.S. Chowdhary and Raghubir Saran ( Dr.) v. State of Bihar and another ). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 28 find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of .
the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court.
When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding. (See : Mrs. Dhanalakshmi v. R. Prasanna Kumar and others (AIR 1990 SC
494), State of Bihar and another v. P. P. Sharma, I.A.S. and another(1992 Suppl (1) SCC
222), Rupan Deol Bajaj (Mrs.) and another v. Kanwar Pal Singh Gill and another (1995 (6) SCC
194), State of Kerala and others v. O.C. Kuttan and others (1999 (2) SCC 651), State of U.P. v. O. P. Sharma (1996 (7) SCC 705), Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada(1997 (2) SCC
397), Satvinder Kaur v. State (Govt. of NCT of Delhi) and another (1999 (8) SCC 728), Rajesh ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 29 Bajaj v. State NCT of Delhi and others AIR 1999 SC 1216).
12. These aspects were also highlighted .
in State of Karnataka v. M. Devendrappa and another.
13. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Code, it is not permissible for the Court to act as if it was a trial Judge. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan v.
Jawahar Lal, it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Code, which cannot be termed as evidence without being tested and proved. When the factual position of the case at ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 30 hand is considered in the light of principles of law highlighted, the inevitable conclusion is that the High Court was not justified in quashing the investigation and proceedings in the connected .
case (Crime No. 116/94) registered by the Special Police Establishment, Lokayukt, Gwalior. We set aside the impugned judgment. The State shall be at liberty to proceed in the matter further."
25. In Central Bureau of Investigation versus Ravi Shankar Srivastava, IAS and another, (2006) 7 Supreme Court Cases 188, it has been held:
"14. The High Court was not justified in quashing the proceedings instituted on the basis of the FIR lodged. The impugned judgment of the High Court is set aside. The appeal is allowed."
26. In State of Madhya Pradesh versus Surendra Kori, (2012) 10 Supreme Court Cases, 155, it has been held:
"14. The High Court in exercise of its powers under Section 482 Cr.PC does not function as a Court of appeal or revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 Cr.PC, though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 Cr.PC, should normally ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 31 refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court .
and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material.
24. We are of the considered opinion that in view of the magnitude of the crime, the number of documents alleged to have been executed fraudulently, the reports referred to in the charge-sheets and the involvement of the respondent etc. could be decided only if an opportunity is given to the prosecution. The High Court, in such circumstances, was not justified in quashing all the First Information Reports and the charge-sheets in exercise of its powers under Section 482 Cr.PC."
27. In Umesh Kumar versus State of Andhra Pradesh, (2013) 10 Supreme Court Cases, 591, wherein it has been held:
"20. The scope of Section 482 Cr.P.C. is well defined and inherent powers could be exercised by the High Court to give effect to an order under the Cr.P.C.; to prevent abuse of the ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 32 process of court; and to otherwise secure the ends of justice. This extraordinary power is to be exercised ex debito justitiae. However, in exercise of such powers, it is not permissible for .
the High Court to appreciate the evidence as it can only evaluate material documents on record to the extent of its prima facie satisfaction about the existence of sufficient ground for proceedings against the accused and the court cannot look into materials, the acceptability of which is essentially a matter for trial. Any document filed alongwith the petition labelled as evidence without being tested and proved, cannot be examined. Law does not prohibit entertaining the petition under Section 482 Cr.P.C. for quashing the charge sheet even before the charges are framed or before the application of discharge is filed or even during its pendency of such application before the court concerned. The High Court cannot reject the application merely on the ground that the accused can argue legal and factual issues at the time of the framing of the charge. However, the inherent power of the court should not be exercised to stifle the legitimate prosecution but can be exercised to save the accused to undergo the agony of a criminal trial."
23. The issue of mala fides looses its significance if there is a substance in the allegation made in complaint moved with malice.
::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 33In Sheo Nandan Paswan v. State of Bihar & Ors., AIR 1987 SC 877, this Court held as under:
"It is a well-established proposition of law .
that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or complainant."
27. The Scheme for inquiry/trial provided under the Cr.P.C. is quite clear. After investigation, report under Section 173(2) Cr.P.C. is to be submitted before the competent court i.e. magistrate having jurisdiction in the matter and the magistrate may take cognizance under Section 190 Cr.P.C. However, it is still open to the magistrate to direct further investigation under the provisions of Section 173(8) Cr.P.C. If the case is triable by the Court of Sessions, the magistrate would commit the case to the said court under Section 209 Cr.P.C. It is for the court to examine whether there is sufficient material collected during investigation and filed alongwith the charge sheet that a prima facie view can be taken to proceed against the accused and in view thereof, frame charges under Section 228 Cr.P.C. At this stage the remedy available to the accused is to ask for discharge under Section 227 Cr.P.C. In case charges are framed the accused has to face the trial, charges can be added/altered at any stage of the trial, before the pronouncement of the ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 34 judgment to suit the evidence adduced before the court, under the provisions of Section 216 Cr.P.C. The only legal requirement is that a witness has to be recalled as provided .
under Section 217 Cr.P.C. when a charge is altered or added by the court.
30. In State of Maharashtra v. Salman Salim Khan, AIR 2004 SC 1189, this Court depreciated the practice of entertaining the petition under Section 482 Cr.P.C. at a pre-mature stage of the proceedings observing as under:
"4....The arguments regarding the framing of a proper charge are best left to be decided by the trial court at an appropriate stage of the trial. Otherwise as observed in this case, proceedings get protracted by the intervention of the superior courts * * * * *
8. ....The High Court by the impugned order had allowed the said application quashing the charge under Section 304 IPC against the respondent herein while it maintained the other charges and direct the Magistrate's court to frame the de novo charges......
12. We are of the opinion that though it is open to a High Court entertaining a petition under Section 482 of the Code to quash charges framed by the trial Court, same cannot be done by weighing the correctness or sufficiency of evidence. In a case praying for quashing of the ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 35 charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The .
truthfulness, the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial.
......we think the High Court was not justified in this case in giving a finding as to the non- existence of material to frame a charge for an offence punishable under Section 304, Part II, IPC, therefore so far as the finding given by the High Court is concerned, we are satisfied that it is too premature a finding and ought not to have been given at this stage .....".
(Emphasis added).
The Court set aside the order of the High Court and left it open to the trial court to modify the charges in accordance with the evidence adduced before it.
28. Similarly, in Vinay Tyagi versus Irshad Ali alias Deepak and others, (2013) 5 Supreme Court Cases 762, the Hon'ble Supreme Court has held:
"15. A very wide power is vested in the investigating agency to conduct further investigation after it has filed the report in terms of Section 173(2). The legislature has specifically used the expression 'nothing in this section shall be deemed to preclude further investigation in respect of an offence after a ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 36 report under Section 173(2) has been forwarded to the Magistrate', which unambiguously indicates the legislative intent that even after filing of a report before the court of competent .
jurisdiction, the Investigating Officer can still conduct further investigation and where, upon such investigation, the officer in charge of a police station gets further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the prescribed form. In other words, the investigating agency is competent to file a supplementary report to its primary report in terms of Section 173(8). The supplementary report has to be treated by the Court in continuation of the primary report and the same provisions of law, i.e., sub-section (2) to sub-
section (6) of Section 173 shall apply when the Court deals with such report."
22. 'Further investigation' is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a 'further investigation'. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 37 is commonly described as 'supplementary report'. 'Supplementary report' would be the correct expression as the subsequent investigation is meant and intended to .
supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a 'reinvestigation', 'fresh' or 'de novo' investigation."
"28. Next question that comes up for consideration of this Court is whether the empowered Magistrate has the jurisdiction to direct 'further investigation' or 'fresh investigation'. As far as the latter is concerned, the law declared by this Court consistently is that the learned Magistrate has no jurisdiction to direct 'fresh' or 'de novo' investigation. However, once the report is filed, the Magistrate has jurisdiction to accept the report or reject the same right at the threshold. Even after accepting the report, it has the jurisdiction to discharge the accused or frame the charge and put him to trial. But there are no provisions in the ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 38 Code which empower the Magistrate to disturb the status of an accused pending investigation or when report is, filed to wipe out the report and its effects in law. Reference in this regard can be .
made to K. Chandrasekhar v. State of Kerala [(1998) 5 SCC 223]; Ramachandran v. R. Udhayakumar [(2008) 5 SCC 413], Nirmal Singh Kahlon v State of Punjab & Ors. [(2009) 1 SCC 441]; Mithabhai Pashabhai Patel & Ors. v. State of Gujarat [(2009) 6 SCC 332]; andBabubhai v.
State of Gujarat.
"39. The contrary view taken by the Court in the cases of Reeta Nag (supra) and Randhir Singh (supra) do not consider the view of this Court expressed in Bhagwant Singh (supra). The decision of the Court in Bhagwant Singh (supra) in regard to the issue in hand cannot be termed as an obiter. The ambit and scope of the power of a magistrate in terms of Section 173 of the Code was squarely debated before that Court and the three Judge Bench concluded as afore-noticed.
Similar views having been taken by different Benches of this Court while following Bhagwant Singh (supra), are thus squarely in line with the doctrine of precedence. To some extent, the view expressed in Reeta Nag (supra), Ram Naresh (supra) and Randhir Singh (supra), besides being different on facts, would have to be examined in light of the principle of stare decisis."::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 39
29. The Hon'ble Apex Court in Bhaskar Lal Sharma and another vs. Monica and others, (2014) 3 Supreme Court Cases 383, has held as under:
.
"10. We disagree. 'Cruelty' as defined in the Explanation to Section 498A of the Penal Code has a twofold meaning. The contentions of Shri Sharan do not deal with the Explanation (a) and is exclusively confined to the meaning dealt with by Explanation (b). Under Explanation (a) conduct which is likely to cause injury or danger to life, limb or health (mental or physical) would come within the meaning of the expression "cruelty". While instances of physical torture would be plainly evident from the pleadings, conduct which has caused or is likely to cause mental injury would be far more subtle. Having given our anxious consideration to the averments made in the complaint petition, we are of the view that the statements made in the relevant paragraphs of the complaint can be understood as containing allegations of mental cruelty to the complainant. The complaint, therefore, cannot be rejected at the threshold."
"11. The facts, as alleged, therefore will have to be proved which only be done in the course of a regular trial. It is wholly unnecessary for us to embark upon a discourse as regards the scope and ambit of the Court's power to quash a criminal proceeding. Appreciation, even in a summary manner, of the averments made in a complaint petition or FIR would not be permissible at the stage of quashing and ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 40 the facts stated will have to be accepted as they appear on the very face of it. This is the core test that has to be applied before summoning the accused. Once the aforesaid stage is overcome, the facts .
alleged have to be proved by the complainant/ prosecution on the basis of legal evidence in order to establish the penal liability of the person charged with the offence."
"12. Insofar as the offence under Section 406 of the Penal Code is concerned, it is clear from the averments made in paragraphs 16, 18, 24 and 29 of the complaint petition that it has been alleged that the appellants were entrusted or had exercised dominion over the property belonging to the respondent and further that the appellants had unlawfully retained the same. The statements made in para 6 of the complaint also alleges retention of cash and other gifts received by the respondent- complainant at the time of her marriage to the accused-appellant No. 2. In the face of the said averments made in the complaint petition, it cannot be said that the complaint filed by the respondent is shorn of the necessary allegations to prima facie sustain the case of commission of the offence under Section 406 by the appellants."
30. In State of Bihar and another etc. etc. vs. P.P. Sharma and another etc. etc., AIR 1991 Supreme Court, 1260, it has been held:
"16. It is thus obvious that `the annexures' were neither part of the police-::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 41
reports nor were relied upon by the investigating officer. These documents were produced by the respondents before the High Court along with the writ petitions. By treating .
`the annexures' and affidavits as evidence and by converting itself into a trial court the High Court pronounced the respondents to be innocent and quashed the proceedings. The last we can say is that this was not at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. This Court has repeatedly held that the appreciation of evidence is the function of the criminal courts. The High Court, under the circumstances, could not have assumed jurisdiction and put an end to the process of investigation and trial provided under the law. Since the High Court strongly relied upon 'the annexures' in support of its findings, we may briefly examine these documents."
"23. The informant, being in a peculiar position having lodged the accusation, is bound to be looked-down upon by the accused-persons. The allegations of mala fide therefore against the informant based on the facts after the lodging of the FIR are of no consequence and cannot be the basis for quashing the proceedings. As regards the investigating officer, He has wide powers under the criminal procedure code. He has to perform his duties with the sole object of investigating the allegations and in the course of the investigation he has to take into ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 42 consideration the relevant material whether against or in favour of the accused. Simply because the investigating officer, while acting bona fide rules out certain documents as .
irrelevant, it is no ground to assume that the acted mala fide. The police-report submitted by the investing officer has to pass through the judicial scrutiny of a Magistrate at the stage of taking cognizance. Although the accused person has no right to be heard at that stage but in case the accused person has any grouse against the investigating officer or with the method of investigation he can bring to the notice of the Magistrate his grievances which can be looked into by the Magistrate. When the police report under Section 173 Cr. P.C. has to go through the judicial scrutiny it is not open to the High Court to find fault with the same on the ground that certain documents were not taken into consideration by the investigating officer. We do not, therefore, agree with the High Court that the FIR and the investigation is vitiated because of the mala fide on the part of the informant and the investigating officer. We may, however, notice the factual-matrix on the basis of which the High Court has reached the findings of mala fide against the informant and the investigating officer. The High Court based the findings against the informant R.K. Singh on the following materials :
1. R.K. Singh, a comparatively junior officer had twice served under P.P. Sharma as Asstt.::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 43
Magistrate, Gaye and as Sub-Divisional Officer at Jamui.
2. Within 10 days of taking over as Managing Director of BISCO, he sent proposal for initiating surcharge proceedings against Shri P.P. Sharma, .
which was rejected by the then Registrar. R.K. Singh revived the proposal when later on the took over he charge as Registrar.
3. R.K. Singh deliberately violated Government instructions dated November 17, 1986 requiring prior approval of the Administrative department before initiating criminal proceedings against a Government officer.
4. R.K. Singh did not hand over the relevant files and papers of BISCO to the investigating officer for more than a week in order to gain time to tamper/ destroy/forge the BISCO files. He continued to direct the investigating officer throughout the investigation. Even affidavit was filed by the investigating officer on his behalf.
5. The documents in possession of R.K.Singh were such that any reasonable and fair minded person would not have filed the FIR. He acted mala fide in ignoring the documents and lodging the FIR.
6. R.K. Singh got the sanction for prosecution of P.P. Sharma issued on the last date of arguments before the Special Judge although earlier the investigating officer had stated that sanction was not required.
7. R.K. Singh filed affidavit denying the allegations of mala fide in the High Court. He appeared through counsel and contested the proceedings throughout.
8. In a letter to Chief Secretary, Bihar after the lodging of FIR R.K. Singh referred to P.P. Sharma as ``gutter rat'' and ``common crockery thief''.
"29. The findings of the High Court that no offence is made out against the respondents ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 44 under the Essential Commodities Act is also based on the appreciation of `the annexures' and other disputed facts on the record and as such is untenable for the reasons already indicated .
above."
"61. An investigating officer who is not sensitive to the constitutional mandates, may be prone to trample upon the personal liberty of a person when he is actuated by mala fides. But as stated the accused, at the earliest should bring to the notice of the court of the personal bias and his reasonable belief that an objective investigation into the crime would not be had at the hands of the investigator "by pleading and proving as of fact with necessary material facts. If he stands by till the charge-sheet was filed, it must be assumed that he has waived his objection. He cannot turn down after seeing the adverse report to plead the alleged mala fides. (Equally laying the information before the Station House Officer of the commission of cognizable crime merely sets the machinery if the investigation in motion to act in accordance with the procedure established by law.) The finding of the High Court, therefore, that the F.I.R. charge-sheet violate the constitutional mandate under Article 21 is without substance."
31. A Full Bench of Andhra Pradesh High Court, in Girish Sarwate versus State of A.P. and another, 2005 CRI.L.J.729, has held:
::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 45"11. State of Tamilnadu v. Thirukkural Perumal7 was the case, in which the First Information Report had been filed and investigation was in progress, then an .
application came to be filed under Section 482 Cr.P.C in the High Court and the High Court allowed the application and quashed the First Information Report. The Supreme Court found that the learned Single Judge of the High Court while quashing proceedings had placed reliance on some evidence collected by the Investigating Agency during the investigation and the Supreme Court was of the view that the approach of the Judge in relying upon the evidence, which was yet to be produced before the trial Court was not proper. Then it held that:
"The power of quashing an FIR and
criminal proceeding should be exercised
sparingly by the Courts. Indeed, the High Court has the extraordinary or inherent power to reach out injustice and quash the first information report and criminal proceedings, keeping in view the guidelines laid down by this Court in various judgments [reference in this connection may be made with advantage to State of Haryana v.Bhajan Lal, 1992 Supp(1)SCC 335- 1992 SCC (Cri)426), but the same has to be done with circumspection. The normal process of the criminal trial cannot be cut short in a rather casual manner."::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 46
"29. In the light of these judgments of the Supreme Court, we have no doubt in our mind that under Section 482 Cr.P.C, the High Court .
has the power to quash an FIR or even a complaint subject to limitations and conditions laid down by Supreme Court in various judgments. It need not wait for completion of investigation and taking cognizance of by the Magistrate. There is no dispute that this power has to be exercised by the High Courts very sparingly with circumspection and also in rarest of rare cases. Though there are limitations on exercise of power by the High Court, yet that would not in any way suggest that High Court lacks the power."
32. Mr. Suneet Goel, learned counsel for the victims has argued that the petitioners have no case in their favour and the evidence on record shows that the petitioners have committed offence under Section 304 A read with Section 34 of the Indian Penal Code, as they were having knowledge that due to their negligence, the victim's wards will die and in fact they died. To support his contentions, he has relied upon a decision rendered in Amit Kapoor versus Ramesh Chander and another, (2012) 9 Supreme Court Cases ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 47 460, in which, it has been held:
"16. The above-stated principles clearly show that inherent as well as revisional .
jurisdiction should be exercised cautiously. If the jurisdiction under Section 482 of the Code in relation to quashing of an FIR is circumscribed by the factum and caution afore-noticed, in that event, the revisional jurisdiction, particularly while dealing with framing of a charge, has to be even more limited.
r "27. Having discussed the scope of
jurisdiction under these two provisions,
i.e., Section 397and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be :::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 48
***** *** *** *** 27.3. The High Court should not unduly interfere. No meticulous examination of the .
evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
***** *** *** *** 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance to the requirements of the offence."
[
33. In Ravindra Kumar Madhanlal Goenka & Anr. v. M/s. Rugmini Ram Raghav Spinners P. Ltd., AIR 2009 Supreme Court 2383, it has been held:-
"15. While considering the facts of the present case, we are of the considered opinion that the ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 49 present case is not one of those extreme cases where criminal prosecution can be quashed by the court at the very threshold. A defence case is pleaded but such defence is required to be .
considered at a later stage and not at this stage. The appellants would have ample opportunity to raise all the issues urged in this appeal at an appropriate later stage, where such pleas would be and could be properly analysed and scrutinized.
16. this In view of the aforesaid position, we decline to interfere with the criminal proceeding at r stage. The appeal is consequently dismissed."
34. In State of Andhra Pradesh versus Goloconda Linga Swami, (2004) 6 SCC 522, it has been held:
"5. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 50 desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that .
may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and r to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 51 would result in injustice and prevent promotion of justice. In exercises of the powers court would be justified to quash any proceeding if it finds that initiation or .
continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 52 private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution .
and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335) A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:
"(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 FIR 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 Magistrate within the purview of Section 155(2) of the Code.
(3) Where the un-controverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 53 not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute .
only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under S. 155(2) of the Code.
(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.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
8. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise.
::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 54Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution.
.
High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See : The Janata Dal etc. v. H.S. Chowdhary and others, etc. (AIR 1993 SC 892), Dr. Raghubir Saran v. State of Bihar and another (AIR 1964 SC 1)). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 55 the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case .
before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance.
It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding. (See : Mrs. Dhanalakshmi v. R. Prasanna Kumar and others (AIR 1990 SC 494), State of Bihar and another v. P. P. Sharma, I.A.S. and another (1992 Suppl (1) SCC 222), Rupan Deol Bajaj (Mrs.) and another v. Kanwar Pal Singh Gill and another (1995 (6) SCC 194), State of Kerala and others v. O.C. Kuttan and others (1999 (2) SCC 651), State of U.P. v. O. P. Sharma (1996 (7) SCC 705), Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada (1997 (2) SCC
397), Satvinder Kaur v. State (Govt. of NCT of ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 56 Delhi) and another (1999 (8) SCC 728), Rajesh Bajaj v. State NCT of Delhi and others AIR 1999 SC 1216), State of Karnataka v. M. Devendrappa and another (2002 (3) SCC 89)."
.
35. In rebuttal, the learned counsel for the petitioners has argued that though the petitioners can argue on charge, but this Hon'ble Court has jurisdiction to quash the proceedings/charge sheet, including the F.I.R., as has been held in Umesh Kumar versus State of Andhra Pradesh and another, (2013) SCC, 591.
36. To appreciate the arguments of the learned counsel for the parties, I have gone through the record in detail. The statements of the witnesses on record, i.e. Bihari Lal, Pawan Kumar, Kuram Dutt, Digeshwar and Chetan Chavan and other students of the College are material to be considered, whether there is a prima facie case against the petitioners or no case is made out against the petitioners and the FIR is required to be quashed.
37. Firstly, coming to the statement of Bihari Lal.
He has stated that he is a Part-time Photographer and on that day, he was attending a marriage party. He saw some students in River Beas, who were clicking photographs. At ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 57 that time, there was very less water in river Beas, but all of a sudden, the water level increased drastically, due to which, some of the students were washed away in the heavy .
flow of water. Some of the students tried to come out of the river by swimming, but could not succeed. He has stated that the local people had also already reached at the place of incident, who shouted and blew whistle very loudly, but some students could not understand the meaning of shouting and whistling by the local residents. Similarly, in his statement Puran Chand, who was a Tea Stall owner in the vicinity, has stated that on 08.6.2014, when he was present at his Tea Stall, two tourist buses came from Mandi side and stopped at the road side. The tourists, who were mostly male and female students, came down from the buses, out of them, 2-3 students came to his tea stall and he enquired from them that from where they had come. They informed him that they had come from Hyderabad for sight-
seeing. He has also stated that he suggested them not to go to river Beas and told them that sometimes, the water level rises all of a sudden because of release of water by the Project authorities, but they did not heard his suggestion ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 58 and all the students got down to the river bed. He has further stated that after about twenty minutes, the local people blew the whistles and started shouting very loudly to .
tell the students that the water has been released from the Dam and the water is increasing rapidly and told them to come out of the river as early as they can, but they did not come out of the water. He has stated that the level of water increased rapidly and some of the students washed away in the heavy flow of water. Some of the students came out of the water by swimming and some were dragged by the local people. He has further stated that neither he heard the sound of any Hooter while water was being released by the Project authorities nor the Hooter was rung on that day by the Project authorities. Further, he has stated that the accident was due to the negligence of Project authorities and because of release of water without sounding of any Siren/Hooter.
38. The statements of Puran Chand, Pawan Kumar, Kuram Dutt and Bhim Sen are to the effect that they did not hear the sound of Siren/Hooter on that day. The other material witnesses whose statement is recorded by the ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 59 police are Digeshwar son of Nokh Singh, who was the resident of village Tahula and a farmer, has stated that on 08.6.2014, when he along with Noop Ram was sitting at the .
side of Tea Stall of Puran Chand at Shala-Nalla, two private buses came from the Mandi side and was stopped at the side of the road. The students came down from the buses and went to the river Beas and started noising and clicking photographs. He has stated that at about 06.35 pm, some people were attending the marriage at the residence of Hukme Ram, started blowing whistles and were asking the students to come out of the river, as the flow of water was increasing rapidly and they also went down towards the river and also asked the students to come out of the river, but the students did not bother their suggestion and kept standing at a stone. The flow of water of the river had reached upto the stone where the students were gathered.
However, some of the students jumped out of the river.
They dragged 2-4 students from the river. Due to increase of flow of water, some of the students could not jump and washed away in the heavy flow of water. Thereafter, he brought some ropes, but by that time, the students were ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 60 already washed away. In the end, he has stated that he did not hear any sound of Hooter or Siren at the place of incident on that day.
.
39. Now, the statement of other student, namely Chetan Chavan, who was in the bus alongwith the Wards of the victims, who were washed away, has stated that he rushed back to the river bank to save his life, but 24 of his batch mates and one Tour Operator lost their lives and during this incident, no one from the Faculty stopped the students from going into the river bed. Similar is the statement of Raman Teja, N. Biswas, T.V Suharsha and P. Surjan that no Faculty members stopped the students from going down to the river bank.
40. The victims were 24 in number and were in the age group of 18 to 22 years approximately. They were unaware about the terrain of Himachal. They were brought on the Industrial tour, as is clear from the documents, i.e. the undertaking of their parents given to the College authorities and these students were not having knowledge about the river Beas or the nature of the rivers in the hills.
::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 6141. Now, coming to the role of the Faculty members, one of the Faculty member, who was accompanying the students, has made her children to sit in the bus, when she .
went to the river alongwith other colleagues. The faculty member had already also visited Manali for the similar purpose, as has been disclosed by one of the Faculty member and they were having knowledge with respect to the river Beas and the terrain and in these circumstances, these Faculty members were required to stop the students from going to the river Beas, but they themselves accompanied the students and when water came, inspite of the warning, the students and they rushed to the bank of river. However, the local people remain able to save certain students.
42. In these circumstances, this Court finds that action of the Faculty members is that they were knowing that by their act in not stopping the students from going to the river bed, they are likely to die in all probabilities. In these circumstances also, this Court finds that the case under Section 304-A, read with Section 34 IPC, prima facie is made out. The Hon'ble Supreme Court in Pundurang and Takia & others versus State of Hyderabad, ::: Downloaded on - 08/12/2017 23:02:35 :::HCHP 62 reported in (1995) SCC 216, has held that common intention in Section 34 IPC is pre-supposed prior concert, but as in the present case, the petitioners were having .
knowledge that by such adventure, the students will die and not stopping them from going to the river bed itself shows that they were having the knowledge that in all probabilities the students will die due to their act and by not stopping the students. So, with due respect, to the judgment, the same is of no help to the petitioners.
43. In a case titled Sushil Ansal versus State (2014) 6 SCC 173, the Hon'ble Supreme Court has held that breach of duty was not causa causans of the death of victim or personal safety causing hurt does not come under the definition of Section 304 of the Indian Penal Code, but in the present case, the action of the petitioners in sending the students to the river bed and not stopping them when they were going to the river bed, which is not a tourist place and asking them not to go there and when the Faculty members were knowing that it was dangerous to go there, as the Tea- Stall owner of that place has also given a hint in this regard, this Court has come to the conclusion that the ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 63 negligence was so gross that it is a criminal negligence and punishable under Section 304 IPC and so this judgment is of no help to the petitioners.
.
44. Similarly, in S.N. Hussain versus The State of Andhra Pradesh (1972) 3 Supreme Court Cases 18, it has been held:
"3. The appellant's defence was that he was neither rash nor negligent and the accident was unavoidable. He did not realize at all that a Goods train was passing at the time and since the gate was open he crossed the railway crossing absolutely oblivious of the fact that a train was approaching. The learned Trial Magistrate accepted the defence but the High Court was pleased to hold that the appellant was both rash and negligent."
45. In the present case, the Faculty members were aware about the danger in the river bed, to go there and even when the Tea-Stall owner has also given a hint in this regard to not to go to the river bed, this Court has come to the conclusion that the negligence was so gross that it is a criminal negligence and punishable under Section 304 of the Indian Penal Code, so, this judgment is of no help to ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 64 the petitioners and neither it is applicable to the facts and circumstances of the present case.
46. The learned counsel for the petitioner has .
argued that there was no common meeting of mind and to support his contention, he has relied upon the judgment rendered in Vijendra Singh vs. State of U.P., AIR 2017 Supreme Court 860, wherein it has been held:
"25. In the case at hand, it is contended that there is no injury caused by lathi or ballam. Absence of any injury caused by a lathi cannot be the governing factor to rule out Section 34 IPC. It is manifest from the evidence that the accused-appellants had accompanied the other accused persons who were armed with gun and they themselves carried lathi and ballam respectively. The carrying of weapons, arrival at a particular place and at the same time, entering into the shed and murder of the deceased definitely attract the constructive liability as engrafted under Section 34 IPC."
47. However, in the present case, there was a meeting of mind between the faculty members that they ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 65 were knowing that their act in not stopping the students from the going to the river bed, they will die in all probabilities, in case water comes, which generally happens .
in the rivers of the hills. So, it is the Faculty members who were knowing that these students are not aware about the facts how to judge whether the water is likely to come in the river, which is generally sensed by the blow of cold wind from the upper side of the rivers, but these students were innocent that they could not make out the danger when the local people started blowing the whistles and dragging the students to safety. The Faculty members knowing fully aware about the consequences about the students going into the river bed, and students were not aware about the perennial rivers coming from the glaciers and their nature and the release of water from the Dams from time to time which the Faculty members were knowing,(as it has come in the statements of the Faculty members that they had earlier come to Manali also and knows about Manali). Further, the parents could not have allowed the petitioners to take their children to Manali, but as it was an industrial tour, it is not understandable as to why these students were taken to ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 66 Manali, whereas there is no Industry at Manali, which clearly shows that it is the negligence on the part of the Faculty members and it is so grave that they are liable for .
committing an offence punishable under Sections 336 and 304-A read with Section 34 of the Indian Penal Code. Other judgment relied upon by the learned counsel for the petitioners, is Suresh and another versus State of U.P., (2001)3 Supreme Court Cases 673, wherein the Hon'ble Supreme Court, while discussing, has held :
"Para 40. Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown to not have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the Court can, with judicial servitude, hold that the ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 67 accused must have pre-conceived result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Shatrughan Patar V/s. Emperor, AIR 1919 Pat .
111 held that it is only when a Court with some certainty hold that a particular accused must have pre-conceived or pre-meditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied."
48. The settled law, in fact, is in favour of the prosecution as each of the Faculty member was knowing that by not stopping the students to go to the river bed, they were likely to die, which is also clear from the fact that while going into the river bed, Faculty member had not taken own child to the river bed. In these circumstances, this Court finds that the law, as cited by the learned counsel for the petitioners is of no help to the present petitioners.
49. Now coming to the arguments advanced by the learned Additional Advocate General appearing for the respondent-State that the petitioners have a chance to argue the matter at the time of framing of charges and he can satisfy the learned Court below. The law as cited by the ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 68 learned Additional Advocate General was considered, which is discussed hereinabove alongwith the law, as cited by the learned Counsel for the petitioners and the learned counsel .
for the victims, this Court finds that taking into consideration the facts which have come on record, there is no occasion to quash the proceedings against the petitioners.
Further, in case State of M.P. versus Awadh Kishore Gupta and others, (2004) l Supreme Court Cases 691, it has been held:
"8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 69 inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which .
finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 70 would result in injustice and prevent promotion of justice. In exercises of the powers court would be justified to quash any proceeding if it finds that initiation/ .
continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
9. In R.P. Kapur v. State of Punjab (AIR 1960 SC 866), this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii)where the allegations constitute an offence, but there is no legal evidence adduced or the ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 71 evidence adduced clearly or manifestly fails to prove the charge.
11. As noted above, the powers possessed by .
the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise.
Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See : The Janata Dal etc. v. H.S. Chowdhary and others, etc. (AIR 1993 SC 892), Dr. Raghubir Saran v. State of Bihar and another (AIR 1964 SC 1)). It would not be proper for the High Court to analyze the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 72 premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be .
proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 73 collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no .
consequence and cannot by itself be the basis for quashing the proceeding. (See:
Dhanalakshmi v. R. Prasanna Kumar and others , State of Bihar and another v. P. P. Sharma, Rupan Deol Bajaj and another v. Kanwar Pal Singh Gill and another, State of Kerala and others v. O.C. Kuttan and others, State of U.P. v. O. P. Sharma , Rashmi Kumar v. Mahesh Kumar Bhada, Satvinder Kaur v.
State (Govt. of NCT of Delhi) and another, Rajesh Bajaj v. State NCT of Delhi and others.
12. These aspects were also highlighted in State of Karnataka v. M. Devendrappa and another(2002 (3) SCC 89).
13. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Code, it is not permissible for the Court to act as if it was a trial Judge. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 74 limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude .
whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan (Smt.) v. Jawahar Lal and Ors. (1992 (3) SCC 317), it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Code, which cannot be termed as evidence without being tested and proved. When the factual position of the case at hand is considered in the light of principles of law highlighted, the inevitable conclusion is that the High Court was not justified in quashing the investigation and proceedings in the connected case (Crime No. 116/94) registered by the Special Police Establishment, Lokayukta, Gwalior. We set aside the impugned judgment. The State shall be at liberty to proceed in the matter further."
50. The law thus is clear that when the matter is listed before the learned trial Court for faming of the charge(s), the powers under Section 482 Cr.PC should not be ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 75 generally exercised, except in an exceptional case. As the present is not an exceptional case, this Court finds that the above cited law is fully applicable in the facts of the present .
case. In Hiralal & Ors. versus State of U.P. & Ors., AIR 2009 Supreme Court 2380, it has been held:
"15. The second complaint petition filed by the third respondent does not disclose any such exceptional case. It reiterated the same allegations as were made in the first complaint petition. No fresh fact was brought to the notice of the court. The core contention raised in both the complaint petitions was alleged execution of a forged Will by Tika Ram Tyagi.
16. For the reasons aforementioned, we are of the opinion that it was not a fit case where cognizance of the offence could have been taken or any summons could have been issued.
The impugned judgment, thus, cannot be upheld. It is set aside accordingly. The appeal is, therefore, allowed."
51. However, the facts of present case are different from the case cited, as in the cited case law, it was second complaint on same cause of action. In Amit Kapoor versus Ramesh Chander and another, (2012) 9 Supreme Court Cases 460, it has been held:
::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 76"The principles to be considered for proper exercise of jurisdiction, particularly with regard to quashing of a charge either in exercise of jurisdiction under Section .
397 or Section 482 Cr.PC or together, as the case may be, can be summarized as follows:
"..............
**** *** ****
**** *** ****
13. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.
14. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie."::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 77
52. It is clear that in Umesh Kumar versus State of Andhra Pradesh and another, (2013) SCC, 591, reproduced hereinabove in para 27 above, it is not applicable .
to the facts of the present case, as discussed hereinabove, the petitioners were having intention and knowledge with respect to the danger likely to cause death by allowing the victims to go to the river bed. So, the judgment is not applicable in the present case.
53. Considering the material, which has come on record, alongwith the law, as discussed hereinabove, there was meeting of mind between the Faculty members to the effect that they were knowing that their act in not stopping the students from going to the river bed, they will die in all probabilities, in case water comes, which generally happens in the rivers in the hills. Also it is the Faculty members, who were knowing that these students are not aware about the facts how to judge whether the water is likely to come in the river, which is generally sensed by the blow of cold wind etc. from the upper side of the rivers, but these students were innocent that they could not make out the danger even when the local people started blowing the whistles and dragging ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 78 the students to safety. The Faculty members knowing fully well about the consequences about the students going into the river bed, and students were not aware about the nature .
of perennial rivers coming from the glaciers and their nature and likely release of water from the Dams from time to time which the Faculty members were knowing,(as it has come in the statements of the Faculty members that they had earlier come to Manali also and knows about Manali) makes out a case against the Faculty members under Sections 336, 304-A read with Section 34 of the Indian Penal Code. Further, the parents could not have allowed the petitioners to take their children to Manali, but as it was an industrial tour, it is not understandable as to why these students were taken to Manali whereas there is no Industry at Manali, which clearly shows that it is the negligence on the part of the Faculty members and it is so grave that life of 25 victims lost and so the petitioners committed an offence punishable under Sections 336 and 304-A read with Section 34 of the Indian Penal Code. Further this Court finds that Faculty members were knowing that by their act in not stopping the students from going to the river bed, ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 79 they are likely to die in all probabilities, having this knowledge, they not only failed to stop the victims, but facilitated them to go to the river bed. Otherwise also, from .
the record, it is clear that the Faculty members were supposed to take care of the students, as they were in the care and custody of the Faculty members/petitioners and the College. Petitioners were supposed to make journey of victims safe and take them safe back to Hyderabad to their parents. It is worthwhile to mention here that the victims were in the age group of 19 and 22 years and they were in the care and custody of College authorities. Inspite of taking care of them, the petitioners facilitated them to go to the river bed knowing fully well about the risk involved there, which is clear from the fact that one of the Faculty members, who was having her own child with her during the tour had not taken her child to the river bed. Further, when the Faculty members fled from the river bed on sensing the coming danger, they were supposed to take the students and the victims with them, but they only fled themselves leaving victims, who were not knowing anything with regard to the nature of the river and the danger prevailing at the spot ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 80 being in their threshold of life un-experienced and in the care and custody of the Faculty members. In these circumstances also, there cannot be any other conclusion, .
but that the proceedings started against the petitioners is on the basis of the facts, which have come on record and are not required to be interfered with.
54. This Court concludes that no prudent person will enter himself or permit someone else to go into the river bed in the hilly areas and when the petitioner had permitted and facilitated the victims (who lost their lives) after entering river bed, this act of petitioners was with the clear and instant risk of harm/danger to life and personal safety of the victims. As the petitioners were knowing the danger thus, their common intention with respect to their negligent act is abundantly clear.
55. In view of the discussion made hereinabove and after taking into consideration all the material on record, this Court finds that the petitioners have no case in their favour. Further, the present is not an exceptional case. For the reasons as given hereinabove, there is no merit in this ::: Downloaded on - 08/12/2017 23:02:36 :::HCHP 81 petition. The same deserves dismissal and is accordingly dismissed.
56. The observation of this Court, made hereinabove are .
only made for the disposal of the present petition and will not have any bearing on the merits of the trial/case. Pending application(s), if any, stands disposed of accordingly.
57. The parties are directed to appear before the learned trial Court on 04.01.2018.
r (Chander Bhusan Barowalia)
December 05,2017 Judge
(M.gandhi)
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