Allahabad High Court
Lalta Prasad vs State Of U.P. And Another on 16 February, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- CRIMINAL REVISION No. - 598 of 2022 Revisionist :- Lalta Prasad Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Manoj Kumar Singh Counsel for Opposite Party :- G.A.,Pankaj Roy,Ram Sevak Yadav Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the revisionist, learned counsel for the opposite party No.2 and learned A.G.A for the State.
2. The present criminal revision has been preferred against the order dated 10.01.2022, passed by the learned Additional District and Session Judge/Special Judge, (F.T.C.), Varanasi in S.T. No.82 of 2019 (State vs. Lalta Prasad and others), Case Crime No.741 of 2018, under Sections 304/120-B IPC, P.S. Rohania, District Varanasi, whereby, the application filed by the revisionist under Section 227 CrPC for discharge has been rejected.
3. Learned counsel for the revisionist argued that the impugned order is against facts and law and thus, liable to be set aside. It was stated that revisionist is manager of Sunrise Public School, where the deceased child was a student. As per prosecution version, the deceased child has suffered death in road accident, while he was coming down from the van (magic vehicle). Referring to the facts of the matter, it was submitted that even according to prosecution version, the said road accident took place due to the negligence of the driver of the school van (magic vehicle) and that revisionist has absolutely no role in the incident. It was stated that revisionist has been falsely implicated in this case merely because he is manager of the said school. Further, there is absolutely no material to attract section 304 IPC against revisionist. Similarly there is no evidence that the revisionist was involved in conspiracy with the driver of the said vehicle namely, Avadesh Patel. Referring to the facts of the matter, it was submitted that no case at all is made out against revisionist and thus, the impugned order is liable to be set aside. In support of his contention learned counsel for the revisionist has placed reliance upon the cases of Abdul Kalam Musalman & Ors. vs. State of Rajasthan 2010 0 Supreme (Raj) 1022 and Mahadev Prasad Kaushik vs. State of U.P. and another AIR 2009 Supreme Court 125.
4. Learned AGA and learned counsel for the opposite party No.2 have opposed the revision and argued that in view of material collected during investigation, a prima facie case is made out against revisionist. It was submitted that despite several complaints, the revisionist used to send a number of children in the alleged vehicle in overcrowd condition and that there is no evidence that the said vehicle was fit for plying and carrying the children. Referring to the statements of witnesses, recorded during investigation, it was submitted that there is no illegality or perversity in the impugned order, by which the application of revisionist for discharge, has been rejected.
5. I have considered rival submissions and perused record.
6. It is well settled that at the stage of framing of charge or considering discharge application, the court is not to analyse reliability of the material on record. The evidentiary value and its credibility has to be considered at the stage of trial. Marshalling and appreciation of evidence is not in the domain of the court at that point of time. At the stage of consideration of an application for discharge, the court has to proceed with an assumption that the material brought on record by prosecution is true and such material and documents have to be considered with a view to find out whether the facts emerging from such material when taken at their face value disclose the existence of all the ingredients constituting the offence.
7. In State of Bihar v. Ramesh Singh [ (1977) 4 SCC 39], considering the scope of Sections 227 and 228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the Judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused.
8. In Superintendent and Remembrancer of legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors [(1980) 1 SCR 323], the Apex Court held that the Magistrate at the stage of framing charges had to see whether the facts alleged and sought to be proved by the prosecution prima facie disclose the commission of offence on general consideration of the materials placed before him by the investigating police officer.
9. In State of Delhi v. Gyan Devi and Others [(2000) 8 SCC 239], the Hon'ble Supreme Court reiterated that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons.
10. In State of Maharashtra v. Priya Sharan Maharaj and Others [(1997) 4 SCC 393], it was held that at Sections 227 and 228 Cr.P.C. stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
11. It is apparent from the above discussed decisions of Hon'ble Apex Court that at the stage of charge there can only be limited evaluation of materials and documents on record. At the stage of charge or consideration of an application for discharge, the court has to proceed with an assumption that the material brought on record by prosecution is true and such material and documents have to be considered with a view to find out whether the facts emerging from such material when taken at their face value disclose the existence of all the ingredients constituting the offence.
12. In case of Abdul Kalam Musalman & Ors. vs. State of Rajasthan (Supra), the Hon'ble Rajasthan High Court has held as under:-
"There is thus distinction between Section 304 and Section 304A. Section 304A carves out cases where death is caused by doing a rash and negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300, IPC. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section 300. Where intention or knowledge is the 'motivating force' of the act complained of, Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The Section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death."
13. In case of Mahadev Prasad Kaushik vs. State of U.P. and another (Supra), the Hon'ble Apex Court held as under:-
"26. Before Section 304 can be invoked, the following ingredients must be satisfied;
(i) the death of the person must have been caused;
(ii) such death must have been caused by the act of the accused by causing bodily injury
(iii) there must be an intention on the part of the accused
(a) to cause death; or
(b) to cause such bodily injury which is likely to cause death; ( Part 1) or
(iv) there must be knowledge on the part of the accused that the bodily injury is such that it is likely to cause death (Part II).
27. Section 304A was inserted by the Indian Penal Code (Amendment) Act, 1870 (Act XXVII of 1870) and reads thus; 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.
28. The section deals with homicidal death by rash or negligent act. It does not create a new offence. It is directed against the offences outside the range of Sections 299 and 300, IPC and covers those cases where death has been caused without `intention' or `knowledge'. The words "not amounting to culpable homicide" in the provision are significant and clearly convey that the section seeks to embrace those cases where there is neither intention to cause death, nor knowledge that the act done will in all probability result into death. It applies to acts which are rash or negligent and are directly the cause of death of another person.
29. There is thus distinction between Section 304 and Section 304A. Section 304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300, IPC. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section 300. Where intention or knowledge is the `motivating force' of the act complained of, Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death."
14. Keeping in view of the aforesaid legal position, in the instant case it may be seen that the opposite party No.2 has lodged first information report of this case alleging that his four years old son was a student in Sunrise Public School and he used to go school by the magic vehicle No.U.P.67T5607, belonging to the said school. On 24.11.2018 at 2.45 PM while the said vehicle was bringing back the students from school and the said vehicle reached near house of informant, the driver asked the son of informant to descend from the vehicle and while the son of informant was coming down from the said vehicle, the driver of the vehicle suddenly moved the van (magic vehicle) in back direction and resultantly the son of informant came under the said vehicle and died. The informant has also alleged that there was no employee of school in the said vehicle for boarding and descending of children in the said vehicle and the incident took place due to negligence of manager of the said school and the driver of the vehicle. It is not in dispute that the revisionist is manager of said Sunrise Public School. In his statement under Section 161 CrPC, the informant has inter-alia stated that the revisionist used to board more children, than the sitting capacity of the vehicle and that before the incident, the informant has asked the revisionist that an employee may be assigned the duty for boarding and descending of children in the said vehicle but he did not agree. Other witnesses have also made statements to this effect. The Court below has observed that the alleged vehicle was over-loaded and carrying children more than sitting capacity and that the said vehicle was being plied in violation of guidelines of Government and earlier the management of school was informed that the said vehicle was being plied in over-crowding condition and in rash and negligent manner but the management did not take any action. The facts of the case and material on record show that there is no such material to make out a case under Section 304 IPC against the revisionist, inasmuch as at the time of alleged incident, the revisionist was not present at the spot and the said vehicle was being driven by the driver and that no overt act was attributed to the revisionist regarding the incident in question, but in the impugned order, the Court below did not make any such observation that a case under Section 304 IPC is made out against revisionist. By the impugned order merely the application of revisionist seeking discharge has been rejected. No such observation has been made by the Court below that what offences are made out against revisionist. In view of above stated facts and considering the material collected during investigation, it cannot be said that impugned order is suffering from any material illegality or perversity or error of jurisdiction. The grievance of the revisionist that no case under section 304 IPC or Section 304/120-B IPC is made out against him is pre-mature. The revisionist may raise such contention during hearing of charge. In the instant matter, as stated earlier, the Court below has not given any such finding that a case under Section 304 or 304/120-B IPC is made out against revisionist. In view of aforesaid, it is apparent that there is no material illegality or perversity or error of jurisdiction in the impugned order so as to require any interference by this Court. The revision lacks merit and thus, liable to be dismissed.
15. Revision is dismissed.
Order Date :- 16.2.2023 Neeraj