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Delhi District Court

Ashwini Kr. Chodha vs State Of Nct Of Delhi on 18 August, 2012

                                     1
          IN THE COURT OF SH. GURDEEP SINGH
      ADDITIONAL SESSION JUDGE-03,OUTER DISTRICT
                ROHINI COURTS, DELHI.

Cr. Revision No. : 123/12

Unique Case ID : 02404R0 157642012

In Re:

Ashwini Kr. Chodha
S/o Sh. Gur Prasha Chodha
R/o D-75, Ashok Vihar, Phase-I
Delhi.

                                                          ...Revisionist
Versus
State of NCT of Delhi
Through Chief Public Prosecutor
                                                         ... Respondent
Cr. Revision No. : 123/12
Date of Institution : 07.06.2012
Date of reserving judgment/order : 07.08.2012
Date of pronouncement : 18.08.2012

ORDER

1. This revision petition is directed against the impugned order dated 26.04.2012 of Ld. Metropolitan Magistrate regarding framing of notice against revisionist.

2. The relevant facts giving rise to the present revision petition are that a charge-sheet was filed against one Rajender Pal @ Rajender for offence punishable u/s 304 A IPC on the allegations that one Mohd. Dulal made statement that he Cr. Revision No. : 123/12 Page 1 of 5 2 alongwith Mohd. Malik and Abdul Karim deceased who were working with Durga Group Company and were doing the work under the contractor of G. P. Gupta. G. P. Gupta had taken the contract for construction from Durga Company and they were doing work of piling foundation and at about 11:30 a.m. Mohd. Malik alongwith some other labourer were moving tryboard. There was electrical wire above it and while moving the upper portion of tryboard touched the electrical wire and Mohd. Malik got electrocuted and he was taken to the hospital but on the way he expired. He further stated that he alongwith many other labourers had earlier on one or two occasion asked the supervisor Rajender Kumar Sharma of Durga Construction Co. while moving the tryboard to remove the electrical wire and thereafter they will take the tryboard but he (supervisor) stated that remove it after pushing the wire up. He (witness) refused saying that that wire is naked from many places on account of which the current leaks but Rajender did not pay heed to their request and forcibly asked to take the tryboard and this incident had taken place on account of negligence of supervisor.

3. Vide order dated 30.05.1997, learned metropolitan magistrate summoned G. P. Gupta and vide order dated 4.8.1998 statement of Rajender was recorded and it was directed to summon present revisionist Ashwani Kr. Chodha and thereafter vide order dated 14.08.2008 learned MM framed notice against all three accused for offence 287/304 A IPC.

The present revisionist preferred revision petition against the said order and vide order dated 4.6.2009 learned additional session judge directed learned MM to pass speaking order before framing of notice. Thereafter vide impugned order notice was directed to be framed against revisionist. Hence the present revision petition.

4. Trial court record received. Perused.

5. I have heard Sh. Sudarshan Rajan, Advocate for revisionist and Sh. A. K. Srivasta, Ld. Addl. PP for State. I have also gone through the record.

6. The impugned order is assailed inter-alia on the ground that Ld. MM had no power to summon the revisionist. It is further submitted that as per the fact, the petitioner was one of the partner of Durga Construction Co. to whom the contract of construction of flats was awarded was not responsible for managing the affairs of the firm at the site in as much as at that point of time, the work of pile foundation was in progress which had been sub-contracted to one M/s C. L. Gupta & Co. after obtaining the consent of DDA. Hence there was no direct responsibility of the present revisionist/accused and in support of his arguments cited Ataur Rehman v. State reported as MANU/DE/3022/2009.

7. Ld. Counsel for the revisionist withdrew his submission that Ld. MM has no power to summon as it was time barred and pressed the other submissions.

8. In the cited case of Ataur Rehman (supra) hon'ble High Court held that there must be mens rea i.e. criminal negligence and death should occur as a consequence of direct result of rash and negligence on the part of the accused and the act must have been the proximate and efficient cause without the intervention of another's negligence. In the said case the deceased was doing the work of demolition and breaking the old house belonging to the accused and all of sudden a wall collapsed on the head of deceased. The accused was not present even at the spot nor there was any special circumstance known to the accused and the said accident occurred in the normal course of job and hence it was held that death was not direct result of rash or negligent act of the petitioner.

9. Ld. Counsel for the revisionist has drawn my attention to the charge-sheet wherein the prosecution has annexed a letter in which job was assigned to Durga Construction Co and in the said letter itself it was directed to engage M/s C. L. Gupta and Associates for pile foundation work.

10. Ld. MM has fasten liability of the revisionist on the ground that revisionist had given sub-contract to C. L. Gupta and Associates and he also becomes responsible for proper completion of the work and handling of machines. It is also observed by Ld. MM that it cannot be said that accused persons were rash but at the same time, it cannot be ignored that they failed to fulfill their responsibility which resulted in death of a person.

11. To frame notice u/s 304-A IPC, it must be shown that death was caused by doing any rash or negligent act. Which clearly shows that there must be act which is rash or negligent which requires to be direct and proximate result of negligence. Admittedly the revisionist has given sub-contract as per the direction of DDA for pile foundation work and the sub- contractor had appointed supervisor Rajender Kumar who was supervising at the site. The revisionist at the most is only remotely connected with the work at the place and therefore rash or negligence act cannot be attributed to the present revisionist. Accordingly I am of the opinion that notice qua Ashwani Kr. Chodha is liable to be set aside.

12. As per discussion above, order of Ld. MM dated 26.04.2012 qua revisionist Ashwani Kr. Chodha is set aside. Accordingly revision petition is allowed. This matter pertains to the year 1992. Ld. MM is directed to decide the matter within period of six months from the receipt of order. Trial court record be sent back alongwith copy of the order. Revision file be consigned to record room.

Announced in the open court today i.e on 18.08.2012 GURDEEP SINGH ASJ-3(Outer) Rohini:Delhi 18.08.2012 Cr. Revision No. : 123/12 Page 5 of 5