Gujarat High Court
Parag Devendrabhai Munshi vs State Of Gujarat on 31 August, 2023
NEUTRAL CITATION
R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6262 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PARAG DEVENDRABHAI MUNSHI
Versus
STATE OF GUJARAT
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Appearance:
MR ANSHIN DESAI, SENIOR ADVOCATE with
MR NANDISH H THACKAR, ADVOCATE for the Applicant
MR ASHISH M DAGLI(2203) for the Respondent - Victim/s
MR DHAWAN JAYSWAL, APP for the Respondent - State
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 31/08/2023
CAV JUDGMENT
1. The present application is filed, under Section 482 of the Code of Criminal Procedure, 1973, challenging the Page 1 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined impugned orders :- (i) dated 07.07.2020 passed below Exh.24, allowing the application of proposed charge filed by the prosecution and (ii) dated 21.06.2021 passed below Exh.73, framing the charges against the applicant - both, by the learned 5 th Additional Sessions Judge, Surat in Sessions Case No.377 of 2019. It is a common order in Sessions Case No.377 of 2019 along with other cognate Sessions cases.
2. The brief facts of prosecution case are in nutshell as under :
2.1 That, on 24.05.2019 between 3:45 pm to 4:00 pm, at Bholenath Shopping Centre (Taksashil Complex), Plot No.7, Nirmalnagar Society, Near : Sarthana Octroi Office, Surat, due to the electricity short-circuit, fire took place and spread till the structure of dome built up above third floor, in which, 22 students succumbed to the death due to burn injuries and suffocation in smoke and 18 students got injured, which is a drawing classes in the name of 'Smart Design Studio' run by accused No.1 - Bhargav Mansukhbhai Butani.
2.2 An FIR came to be lodged by the Police Officer of the Sarthana Police Station, Surat, being C.R.-I No.246 of 2019 for the offences punishable under Sections 304, 308, Page 2 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined 465, 467, 468, 471 and 114 of the Indian Penal Code against 11 accused, including the present applicant, who is accused No.8. Thereafter, investigation is made, charge-sheet is filed and Sessions Case No.377 of 2019 came to be registered.
2.3 Initially, the learned 5 th Additional Sessions Judge, Surat has, vide order impugned dated 07.07.2020 passed below Exh.24, allowed the application of proposed charge filed by the prosecution, which is initially challenged by the present applicant by way of this application. It is a common order in Sessions Case No.377 of 2019 and other cognate sessions cases.
2.4 This Court has not granted any stay or passed any effective order on this application, while issuing notice.
2.5 Thereafter, the learned 5
th
Additional Sessions
Judge, Surat, has, vide order dated 21.06.2021 impugned passed below Exh.73, framed the charges against the accused, including the present applicant. The applicant has, therefore, amended the application by way of draft amendment, which is allowed by this Court vide order dated 17.12.2021.
2.6 Hence, it is these orders impugned which are challenged by the applicant before this Court in this Page 3 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined application, at this stage.
2.7 It is reported that there are many witnesses in the trial and about 52 witnesses have already been examined by the learned trial Court till date. Therefore, the trial is in motion.
3. Heard learned advocates.
4. Rule. Learned APP and learned advocate Mr.Ashish Dagli waives service of notice of rule for and on behalf of the respective respondents. With consent of all the learned advocates, this application is taken up for final disposal today.
5.1 Learned senior advocate Mr.Anshin Desai with learned advocate Mr.Nandish Thakkar for the applicant has submitted that the applicant was serving as Executive Engineer with the Surat Municipal Corporation and is retired from service on reaching superannuation.
5.2 He has submitted that the applicant had issued impact fee notice which was only for ground plus three floors, as they stood at that point of time, based on the report with variation submitted by the Junior Engineer Mr.Atul Gorsawala (co-accused) who had carried out sight Page 4 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined inspection with one Mr.Anil Joshi.
5.3 He submitted that the certificate of regularisation was issued by the other officers of the Corporation on 14.07.2015, as the applicant was transferred to Hydraulic Department of the Corporation on 22.09.2014. He has submitted that it cannot be disputed that the fourth floor was illegally constructed somewhere in the middle of the year 2016, which can be read from the statements of other persons.
5.4 He has submitted that as per the case of prosecution, the duty of the applicant was limited to issue notice for payment of impact fee. He has submitted that once the Junior Engineer completed the site inspection, he submits the report tot he Deputy Engineer and after the Deputy Engineer approves the same, the file is put before the Executive Engineer i.e. the present applicant for issuance of notice of impact fee. He has submitted that the said procedure is complied with by the applicant.
5.5 He has submitted that due to short circuit in the outdoor unit of an air conditioner of a Fashion Studio, the fire broke out on the second floor and travelled to the fourth floor, which was illegally constructed in the year 2016 i.e. Page 5 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined after the Certificate of Regularisation was granted, that too by the another person and much after the applicant was transferred to another department after issuance of notice of impact fee by the applicant.
5.6 He has submitted that the officers of the Corporation had visited the subject building and found that the building was being used as per the Certificate of Regularisation, which means there was no illegal construction till then. Therefore, he has submitted that there is no nexus between the incident and the alleged irregularities committed by the officers of the Corporation, much less by the applicant. He has submitted that prima facie, the applicant was not connected with the said illegal construction or granting of the Certificate of Regularisation. Therefore, the ingredients of Section 304 of the IPC are not found, as there was no negligence by the applicant, as alleged and therefore, it cannot be said to be culpable homicide. He has submitted that the actions / inactions attributed to the applicant is not a proximate cause of the incident in question. He has submitted that this application may be allowed by exercising the powers under Section 482 of the Code in favour of the applicant.
5.7 He has submitted that the role of the applicant is Page 6 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined very limited while regularising the construction, that too, the applicant has to sign the notice which is to be issued to the person who wants to regularise his illegal construction, being an officer of the Corporation. He has submitted that except that, there is no role of the present applicant in the commission of offence.
5.8 In support of his submissions, he has relied upon the following decisions :
(i) 2021 SCC OnLine SC 367 - Sanjay Kumar Rai versus State of UP
(ii) (2019) 14 SCC 676 - Nitinchnadra Somnath Raval versus State of Gujarat
(iii) (1996) 6 SCC 129 - Keshub Mahindra versus State of Madhya Pradesh
(iv) (2009) 1 GLH 220 - Madhavprasad Kaushik versus State of Uttar Pradesh
(v) (1972) 3 SCC 525 - Ambalal D. Bhatt versus State of Gujarat
(vi) Criminal Misc. Application No.12211 of 2004 - Vijay Mafatlal Solanki versus State of Gujarat
(vii) (2010) 1 GLH 184 - Mohammed Ibrahim versus State of Bihar
(viii) (2002) 2 SCC 135 - Dilawar Babu Kurane Page 7 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined versus State of Maharashtra 5.9 Except the above, no other submissions are canvassed by the learned advocate for the applicant.
6.1 Per contra, learned advocate for the victim/s has vehemently opposed this application. He has submitted that prima facie offence is made against the applicant; therefore, this Court may not exercise the powers under Section 482 of the Code in favour of the applicant. He has further submitted that this was really an unfortunate incident, where 22 parents have lost their children, who were there in the tuition class. He has submitted that one door was kept closed and there was only one wooden staircase, and at that time, when fire took place, within a moment, the said wooden staircase was burned and no option left for the students to survive themselves but to jump from the building, that too from the fourth floor, which is illegally constructed by the accused and permitted by the applicant, being an officer of the Corporation. He has submitted that this is not the act, for which one person can be held responsible solely, but this is an act for which all the officers/persons can be held liable collectively. He has submitted that if any one officer or person remained vigilant, the incident might not have happened. He has submitted that many of students are Page 8 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined burnt on the spot, many of them have jumped from the fourth floor and lost their lives and many got injures while jumping from the fourth floor.
6.2 He has submitted that the role played by the present applicant is collectively being a responsible officer on duty and negligence by several authorities which led to the incident and therefore, rigors of Section 34 of the IPC would apply which clearly says about the acts done by several people in furtherance of common intention and therefore, the present application may be rejected.
6.3 He has submitted that the trial has already commenced and about 52 witnesses were examined and 44 witnesses were dropped, therefore, the examination of in all 96 witnesses can be said to be over. He has submitted that this application is at a very premature stage and the applicant is trying to conduct mini mini-trial before this Court which is not permissible. He has submitted that initially, an FIR was registered under Section 304 of the IPC, but while framing of charge, Sections 465, 467, 471 etc., were added as the documents submitted for regularization were found forged and the same has been taken into consideration by the officers of the Corporation.
Page 9 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined 6.4 He has submitted that the learned trial Court has rightly passed the impugned orders and framed the charges after examining the evidence and material placed on record.
He has submitted that the present applicant was working as Chief Executive Engineer and the signature of the applicant is surface of regularisation. He has submitted that no interference be made by this Court in the impugned orders passed by the learned trial Court at this stage, as there is no error and/or perversity in the impugned orders passed by the learned trial Court. He has submitted that looking to the conduct and gravity of the offence, this application may be rejected.
6.5 In support of his submissions, he has relied upon the following decisions :
(i) (2019) 4 SCC 149 - State of Tamil Nadu versus J.Doraiswamy
(ii) (2010) 9 SCC 368 - Sajjan Kumar versus CBI
(iii) (2009) 16 SCC 605 - Chitresh Kumar Chopra versus State (Government of NCT of Delhi)
(iv) (2009) 16 SCC 429 - CBI versus Mukesh Pravinchandra Shroff
(v) 2021 SCC OnLine SC 315 - Neeharika Page 10 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined Infra. Pvt. Ltd., versus State of Maharashtra
7.1 Learned APP Mr. Dhawan Jayswal for the State has also vehemently opposed this application. He has adopted the submissions canvassed by the learned advocate for the victim/s. Over and above the same, he has submitted that there is a prima facie case made against the applicant. He has submitted that considering the role and the duty of the applicant being a responsible officer of the Corporation, this application is not required to be considered at this stage. He has submitted that the trial has already commenced and the examination of about 96 witnesses has been over. He has submitted this is a very premature stage for discharge by the applicant. He has submitted that though the applicant is retired from the service by way of superannuation, he cannot escape from the criminal liability looking to the gravity of the offence. He has submitted that the signature of the applicant is there in the impact fee process papers and in the certificate of regularisation too.
7.2 He has submitted that this is a collective act and therefore, no one can be left without evaluating the evidence properly, looking to the offence/incident as 22 students have lost their lives in the fire burnt and or in the suffocation of Page 11 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined smoke of the fire on the spot. He has submitted that there were no fire safety measures on the fourth floor or there was no emergency exist available for the students on the fourth floor. He has submitted that the learned trial Court has, after taking into consideration all the material available with it, added Sections 465, 467 and 471 of the IPC, which itself shows that there is a prima facie case against the accused.
He has submitted that when prima facie case is made out against anyone, he has to face the trial and therefore, let the applicant face the trial. He has submitted that this application may not be considered at this stage by this Court and is required to be dismissed.
8.1 I have heard rival contentions raised by the learned advocates for the respective parties at length. I have also perused the police papers, which were made available by the learned APP for perusal of this Court. I have also perused the impugned orders passed by the learned trial Court. I have also perused the documents available on record.
Following are the undisputed facts that emerged from the material available on record as well as from the submissions made by the learned advocates for the respective parties :
The fire took place due to short circuit.
22 students have lost their lives in the incident.Page 12 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023
NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined Some of them are burnt on the spot in the fire and some of them have jumped from the window from the fourth floor and lost their lives. Some of them got serious injuries.
Initially, there were only three floors.
The fourth floor was illegally constructed as dome above the third floor and the present applicant who was Executive Engineer of the Corporation had played active role in regularisation of such construction.
There was no fire safety measure available at the dome premises at that time.
There was no emergency exist open at the relevant point of time at the dome premises.
There was a wooden staircase, which is burnt immediately in the fire and therefore, there was no other way left out with the students except to jump from the window of the fourth floor. This situation would not arise if applicant was vigilant in his duty.
The learned trial Court has, after taking into consideration the material available on record and also considered the aspect about the forged documents and therefore, added Sections 465, 467 and 471 of the IPC against the accused.
The trial has commenced and the impugned orders are the prima facie observations/opinion by the learned trial Page 13 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined Court by way of believing prima facie case against the applicant for framing of charge.
The examination of about 96 witnesses is over, though some of them are dropped.
8.2 At this stage, it would be fruitful to refer to the offences / Sections of the Indian Penal Code, which are alleged in the charge-sheet, which are as under :
Sections 304, 308, 465, 467, 468, 471 and 114 " 304. Punishment for culpable homicide not amounting to murder -- Whoever commits culpable homicide not amounting to murder, shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such Page 14 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined bodily injury as is likely to cause death.
[304A. Causing death by negligence.-- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.] [304B. xxx]
308. Attempt to commit culpable homicide.
--Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
465. Punishment for forgery-- Whoever Page 15 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
467. Forgery of valuable security, will, etc.
-- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
468. Forgery for purpose of cheating.-- Whoever commits forgery, intending that the [document or electronic record forged] shall Page 16 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
471. Using as genuine a forged document or electronic record.--Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged 3 [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]."
8.3 Further, it would also be fruitful to refer to the provisions of Section 482 of the Code of Criminal Procedure, 1973, which is as under :
"482. Saving of inherent powers of High Court.-- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."Page 17 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023
NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined 8.4 It is noted that even though the inherent jurisdiction of the High Court under Section 482 of the Code is very wide, it 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. In a proceeding under Section 482 of the Code, the High Court will not enter into any finding of facts. The Hon'ble Apex Court has time and again raised a question as to whether the Criminal Proceedings can be quashed even before the Commencement of the Trial. The Hon'ble Supreme Court went ahead and held that, the inherent power under Section 482 has to be exercised for the ends of the justice and should not be arbitrarily exercised to cut short the normal process of a criminal trial. The present case is certainly not one of these exceptional cases where this Court can exercise the powers under Section 482 of the Code in favour of the applicant. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is a trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 of the Code for quashing criminal proceedings/discharge the applicant from the charges levelled against him. It is clear from the law laid down by the Hon'ble Apex Court that if a prima facie Page 18 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot exercise the powers under Section 482 of the Code in favour of the accused / applicant.
8.5.1 It is fruitful to refer to the decision of the Hon'ble Apex Court on which the learned advocate for the applicant has placed heavy reliance in the case of Sanjay Rai (supra), more particularly paragraphs 13 to 17 thereof, which are as under :
" 13. At the outset, we may note that the High Court has dismissed the Criminal Revision on the ground of lack of jurisdiction under Section 397 of Cr.P.C. The High Court did not examine the issue in detail to find out whether the continuation of proceedings will amount to abuse of process of law in this case. The impugned order cites the decision of this Court in Asian Resurfacing (supra) wherein it was noted as under :
"...Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred Page 19 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined irrespective of the label of a petition, be it under Sections 397 or 482 CrPC or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to reappreciate the matter."
14. It appears to us that while limiting the scope of a criminal revision to jurisdictional errors alone, the High Court apparently underappreciated the Judgment in Asian Resurfacing (supra). We say so at least for two reasons. First, the material facts in the abovecited case dealt with a challenge to the charges framed under the Prevention of Corruption Act, 1988 ("POCA"). The cited judgment itself enlightens that not only is POCA a special legislation, but also contains a specific bar under Section 19 Page 20 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined against routine exercise of revisional jurisdiction. Second, This Court in Asian Resurfacing (Supra) while expressing concern regarding the need to tackle rampant pendency and delays in our criminal law system, followed the ratio laid down in an earlier decision in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 as can be seen from the following extract :
"27. Thus, even though in dealing with different situations, seemingly conflicting observations may have been made while holding that the order framing charge was interlocutory order and was not liable to be interfered with under Section 397(2) or even under Section 482 CrPC, the principle laid down in Madhu Limaye [Madhu Limaye v.
State of Maharashtra, (1977) 4
SCC 551: 1978 SCC (Cri) 10]
still holds the field. Order
framing charge may not be held
to be purely an interlocutory
order and can in a given
situation be interfered with under Page 21 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined Section 397(2) CrPC or 482 CrPC or Article 227 of the Constitution which is a constitutional provision but the power of the High Court to interfere with an order framing charge and to grant stay is to be exercised only in a exceptional situation."
(emphasis supplied)
15. In Madhu Limaye (supra), this Court authoritatively held :
"9... Sometimes the revisional jurisdiction of the High Court has also been resorted to for the same kind of relief by challenging the order taking cognizance or issuing processes or framing charge on the grounds that the Court had no jurisdiction to take cognizance and proceed with the trial, that the issuance of process was wholly illegal or void, or that no charge could be framed as no offence was made out on the allegations made or the evidence adduced in Court..Page 22 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023
NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined
10. ... Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercises for stopping the criminal proceeding as early as possible, instead of harassing the accused up to the end- The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial.(emphasis supplied)
16. The correct position of law as laid down in Madhu Limaye (supra), thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of CrPC. That apart, this Court in the abovecited cases has Page 23 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases. As a caveat it may be stated that the High Court, while exercising its aforestated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For example, when the contents of a complaint or the other purported material on record is a brazen attempt to persecute an innocent person, it becomes imperative upon the Court to prevent the abuse of process of law.
17. Further, it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there Page 24 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be."
8.5.2 Further, it is also fruitful to refer to the decision of the Hon'ble Apex Court in the case of Ambalal D. Bhatt (supra), more particularly paragraph 10 thereof, which is as under :
" 10. It appears to us that in a prosecution for an offence under section 304A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. If that were so, the acquittal of the appellant for contravention of the provisions of the Act and the Rules would itself have then Page 25 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined examined to what extent additional evidence of his acquittal would have to be allowed, but since that is not the criteria, we have to determine whether the appellant's act in giving only one batch number to all the four lots manufactured on 12-11-62 in preparing batch no. 211105 was the cause of deaths and whether those deaths were a direct consequence of the appellant's act that is, whether the appellant's act is the direct result of a rash and negligent act and that act was the proximate and efficient cause without the intervention of another's negligence. As observed by Sir Lawrence Jenkins in Emperor V/s. Omkar Rampratap. (1902) 4 Bom LR 679 the act causing the deaths "must be the cause casuans; it is not enough that it may have been the causa sine qua non". This view has been adopted by this Court in several decisions. In Kurban Hussein Mohem-medali Rangwala V/s. State of Maharashtra, 1965-2 SCR 622, the accused who had manufactured wet paints without a licence was acquitted of the charge under section 304A because it was held that the mere fact that he allowed the burners to be used in the same room in Page 26 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined which varnish and turpentine were stored, even though it would be a negligent act, would not be enough to make the accused responsible for the fire which broke out. The cause of the fire was not merely the presence of the burners within the room in which varnish and turpentine were stored, though this circumstance was indirectly responsible for the fire which broke out, but was also due to the overflowing of froth out of the barrels. In Suleman Rahiman Mulani V/s. State of Maharashtra (1968) 2 SCR 515 the accused who was driving a car only with a learner's licence without a trainer by his side, had injured a person. It was held that by itself was no sufficient to warrant a conviction under section 304A. It would be different if it can be established as in the case of Balachandra V/s. State of Maharashtra, (1968) 3 SCR 766 that deaths and injuries caused by the contravention of a prohibition in respect of the substance which are highly dangerous as in the case of explosives in a cracker factory which are considered to be of a highly hazardous and dangerous nature having sensitive composition where even friction or percussion Page 27 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined could cause an explosion, that contravention would be the causa casuans."
8.5.3 It is noted that the ratio of above cited decisions at the bar are binding to this Court, but each matter matter is required to be decided on its facts and circumstances, by keeping in mind the legal position. This Court cannot conduct detailed inquiry in the matter at this stage and also cannot quash the proceedings at this premature stage, without conducting the proper trial by the learned trial Court, when there is prima facie material available against the accused persons in connection with the offence in question.
8.6 In view of above, it would be fruitful to refer to the decision of the Hon'ble Apex Court in the case of State of Tamil Nadu versus R. Soundirarasu reported in (2023) 6 SCC 768, more particularly paragraph 73 thereof, which is as under :
" 73. The provisions of discharge under Section 239 of the CrPC fell for consideration of this Court in K. Ramakrishna and others v. State of Bihar and another, (2000) 8 SCC 547, and it was held that the questions regarding the sufficiency or reliability of the evidence to proceed further are not required to be Page 28 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined considered by the trial court under Section 239 and the High Court under Section 482. It was observed as follows:-
"4. The trial court under Section 239 and the High Court under Section 482 of the Code of Criminal Procedure is not called upon to embark upon an inquiry as to whether evidence in question is reliable or not or evidence relied upon is sufficient to proceed further or not.
However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighing or sifting of evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed. As observed by this Court in Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259] the High Court or the Magistrate are also not supposed to adopt a strict hypertechnical approach to sieve the complaint Page 29 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined through a colander of finest gauzes for testing the ingredients of offence with which the accused is charge. Such an endeavour may be justified during trial but not during the initial stage."
8.7 It is also fruitful to refer to the decision of the Hon'ble Apex Court in the case of Neeharika Infra. Pvt. Ltd., (Supra), more particularly paragraph 80 thereof, which reads as under :
" 23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while Page 30 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint / FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under :
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;Page 31 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023
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vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non- interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the Page 32 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court Page 33 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not Page 34 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined to arrest or "no coercive steps to be adopted"
and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/ or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider Page 35 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined what was weighed with the High Court while passing such an interim order. xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted"
can be said to be too vague and/or broad which can be misunderstood and/or misapplied."
8.8 Keeping in mind the entire facts and material available on record as well as taking into consideration the above provisions of law and the decision of the Hon'ble Apex Court, the following points are emerged for consideration of this application :
The role of this Court at this stage is very limited.
This Court cannot conduct mini-trial at this stage.
The trial has already commenced and the examination of about 96 witnesses is over.
It is an unfortunate incident, where 22 students have lost their lives.
There was no fire safety measures available at the fourth floor - dome. The present applicant was the Page 36 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined Executive Engineer of the Corporation who had played active role in regularisation of such unauthorised construction.
The construction of fourth floor - dome is legal or not is a matter of fact and in turn, trial.
There are few disputed questions of fact also, which need to be determined in the trial, i.e. illegal construction, fire safety, electricity fault, notice issued by the applicant was for removal or for payment or for making the proper construction as per norms/rules or for regularisation of illegal construction in any way, wooden staircase, no emergency exist, two classes at the fourth floor were there or not, etc. The impugned order/s is a prima facie opinion (though in the form of charge) of the learned trial and not the final verdict.
Opportunity is still with the applicant to prove innocent before the learned trial Court in the trial proceedings.
This is a collective act and therefore, without trial, it cannot be said at this stage that a particular person / officer has not played any role in the commission of offence.
8.9 Thus, Section 482 of the Code preserves the inherent powers of the High Court to prevent an abuse of Page 37 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023 NEUTRAL CITATION R/CR.MA/6262/2021 CAV JUDGMENT DATED: 31/08/2023 undefined the process of any Court or to secure the ends of justice.
This is a glaring case where the learned trial Court has rightly passed the impugned order/s and there is no apparent error much less the error of law which needs to be interfered with by this Court at this stage. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution / investigating agency. As, at the stage of discharge and/or while exercising the powers under Section 482 of the Code, the Court has a very limited jurisdiction and is required to consider, whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not. Therefore, this is a premature stage and this Court cannot be evaluate the entire evidence on record. Further, at this stage, what is required to be considered is a prima facie case and the material collected during the investigation, which warranted the accused to be tried or not and this Court is of the opinion that there is a prima face case made out against the present applicant, which is required to be tested at the trial.
9. In view of above, this is not a fit case to exercise the powers under Section 482 of the Code in favour of the applicant, at this stage. This application therefore needs to be dismissed.
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10. For the reasons recorded above, this application is dismissed. Rule is discharged. Interim relief, if any, stands vacated.
Sd/-
(SANDEEP N. BHATT,J) M.H. DAVE Page 39 of 39 Downloaded on : Sun Sep 17 03:05:00 IST 2023