Delhi District Court
Sh. Janki Dass vs State on 26 April, 2010
1
IN THE COURT OF MS. SANTOSH SNEHI MANN
ADDITIONAL SESSION JUDGE (CENTRAL)
TIS HAZARI COURTS, DELHI
Criminal Revision No. : 31/2010
Sh. Janki Dass
S/o Sh. Gurditta Mal
R/o C-161, Gali No. 7,
Majlis Park, Adarsh Nagar,
Delhi. ............. Petitioner/
Revisionist
VERSUS
State ............ Respondent
Date of filing of Criminal Revision :- 15.02.2010
Date of conclusion of arguments :- 24.04.2010
Date of order :- 26.04.2010
Revision Petition against the order of Sh. Siddharth
Mathur, Ld. Metropolitan Magistrate dated 01.12.2009
for framing charge under Section 286 IPC in case FIR
No. 305/2007, PS Jama Masjid, under Section 286 IPC &
under Section 9-B of Explosive Act.
ORDER :-
Petitioner/revisionist is aggrieved by the order of Ld. Metropolitan Magistrate dated 01.12.2009 vide which Charge under Section 286 of the Indian Penal Code (hereinafter referred as "IPC") was framed against the accused in addition to Section 9-B of the Explosive Act.
"!# ! $% & '& &( & & *)+ -, .
./ 2
2. I have heard Sh. R. K. Kapoor, Ld. counsel for the petitioner/revisionist and Sh. Rajiv Mohan, Ld. Addl. PP for the State. I have carefully perused the record.
3. Prosecution filed the charge sheet against the petitioner/revisionist for committing the offences punishable under Section 286 IPC and Section 9-B of the Explosive Act.
4. As per the prosecution story, SI Ramjan Ali was patrolling in the area with ASI Dharamveer, HC Inder Singh, HC Om Pal and Ct. Shanker Singh. He received a secret information at about 03.30 pm that crackers are being illegally stored in Shop No. 1110, Bazar Guliyan, Jama Masjid, Delhi. This information was given to Elaka SHO, who gave instructions to take action immediately.
5. A police party headed by SI Ramjan Ali reached at the aforesaid shop at about 03.50 pm where petitioner/ revisionist was found sitting on the counter. During enquiry, it was revealed by the petitioner/revisionist that he has the license to keep and store 1100 kilograms of explosive substances/fire crackers. He produced the license and confessed in the presence of the police party that he was keeping and storing approximately 400 kilograms of crackers beyond the prescribed limit of license. On the basis of this disclosure, 425 kilograms of different types of crackers were recovered and seized on the pointing out of the petitioner/revisionist from a store room of the shop. FIR was 0 1 2 3 2 4 5 6 7 8 9 2 :
2 ; 4 < ; = > ? @ A"B#?
B C%5&4 D&2&E 5&:&:*F+@ :-G H 5 H/8 3 registered against the petitioner/revisionist for keeping and storing 425 kilograms of crackers beyond the prescribed limit of license.
6. It is submitted by Ld. Counsel for the petitioner/ revisionist that by keeping the crackers more than the prescribed limit of the license would not attract Section 286 IPC until and unless there is material and evidence on record to indicate that petitioner/revisionist acted rashly or negligently by doing some act with the explosive substance so as to endanger human life or that he knowingly or negligently omitted to take such order with the explosive substance in his possession, as is sufficient to guard against any probable danger to human life from that substance.
7. Ld. Addl. PP for the State has argued in rebuttal that keeping and storing the crackers beyond the prescribed limit of the license per-se is a rash and negligent act and thus the order of Ld. Metropolitan Magistrate is justified for charging the petitioner/revisionist for committing the offence punishable under Section 286 of IPC.
8. I have considered the rival submissions put-forth and perused the record.
9. There is no dispute about the facts that on the date of the incident petitioner/revisionist had a valid license to keep and store 1100 kilograms of crackers in his shop. It is also a matter of record that except for storing and keeping the I J K L K M N O P Q R K S K T M U T V W X Y Z"[#X [ \%N&M ]&K&^ N&S&S*_+Y S-` a N a/Q 4 crackers in excess quantity than the prescribed limit of the license, there is no other material or evidence to show negligent conduct of the petitioner/revisionist. The issue which arises before this Court is whether keeping and storing of crackers/fire works more than the prescribed limit of license perse would invite penal consequences of offence punishable under Section 286 IPC. The essential ingredients of Section 286 of IPC are :-
Part - I :
(a) A person does, with any explosive, any act.
(b) The act is done so rashly or negligently -
(i) as to endanger human life or,
(ii) as to be likely to cause hurt or injury to any person.
Part - II :
(a) A person omits to take any order with any explosive.
(b) Such order is sufficient to guard against any probable danger to human life.
(c) He so omits, knowingly or negligently.
10. In order to make a case against the accused under Section 286 of IPC, the prosecution must place on record the evidence and the material to show that :-
(I) Accused did an act that endangered, or was likely to endanger, life, or likely to cause hurt or injury;
(II) Such act was done with any explosive substance;
(III) Such act was done rashly or negligently.
b c d e d f g h i j k d l d m f n m o p q r s"t#q t u%g&f v&d&w g&l&l*x+r l-y z g z/j 5 or the prosecution must place on record the evidence and the material to show that :-
(I) Accused had in his possession some explosive substance; (II) He omitted to take such order with that, as was sufficient to guard against a probable danger to human life;
(III) Such omission was negligent or with knowledge of such probable danger.
11. "Negligence" and "Rashness" have been scientifically analyzed by Austin (Austin on Jurisprudence, Volume-I, 4th Edition). He explains and draws a distinction between negligence and rashness as under :-
(a) In cases of "Negligence", the party performs not an act to which he is obliged. He breaks a positive duty.
(b) In cases of "Rashness", the party does an act from which he is bound to forbear. He breaks a negative duty.
12. The words "to take such order" in the second part of Section 286 of IPC means omission to take such care about the property in possession, which a man of ordinary prudence is expected to do.
13. Coming to the facts of the present case, the sole material placed on record on the basis of which prosecution is relying to prosecute the petitioner/revisionist under Section 286 of IPC is the fact that he was over-stocking and keeping the crackers beyond the prescribed limit of the license. Keeping in view the ingredients of Section 286 of IPC, as discussed above, storing 425 kilograms crackers in excess to { | } ~ } } } "# %& &}& & & *+ - / 6 the prescribed limit will not lead to any presumption that it was an act so rash or negligent as to endanger human life or personal safety of the others (First part of the section). Similarly, it cannot lead to a presumption that stocking the crackers in excess to the prescribed limit would amount to omission on the part of the petitioner/revisionist to take such order with respect to the crackers as is sufficient to guard against any probable danger to human life. In order to bring the conduct of the petitioner/revisionist within the domain of Section 286 IPC, there should be material/evidence on record to show some act or omission on the part of the petitioner/revisionist with respect to the explosive substance/ fire crackers, which were in excess quantity than the permitted limit of license. There is no such material on record.
14. In view of above observations and discussions, since there is no material or evidence on record to prima-facie make a case against the petitioner/revisionist under Section 286 IPC, he is thus discharged. The impugned order dated 01.12.2009 of the Trial Court for framing of charge under Section 286 of IPC against the accused is set-aside.
15. Trial shall proceed against the petitioner/accused under Section 9-B of the Explosive Act. The revision petition is allowed.
¡ ¢ £ ¤ ¥"¦#£ ¦ §%& ¨&&© &&*ª+¤ -« ¬ ¬/ 7
16. The Trial Court Record be sent back along with a copy of this order.
17. Criminal Revision Petition be separated and be consigned to Record Room.
Announced in the open court (Santosh Snehi Mann) on 26/04/2010 Addl. Sessions Judge (Central) Tis Hazari Courts, Delhi ® ¯ ° ¯ ± ² ³ ´ µ ¶ ¯ · ¯ ¸ ± ¹ ¸ º » ¼ ½ ¾"¿#¼ ¿ À%²&± Á&¯&Â ²&·&·*Ã+½ ·-Ä Å ² Å/µ