Delhi District Court
Shri Brijesh Virmani vs The State on 20 January, 2012
IN THE COURT OF SHRI A.K. JAIN: ASJ03: SE: SAKET COURT
COMPLEX : NEW DELHI
CR. No. 105/11
Shri Brijesh Virmani
S/o Late Shri K.C. Virmani
R/o A10, Nizamuddin (West),
New Delhi.
...... Petitioner/Revisionist
Versus
The State
......Respondent
ORDER:
1. By way of present revision petition, petitioner/ revisionist has challenged the impugned order dated 19.10.2010 of summoning the petitioner as an accused u/s. 319 Cr.P.C. and also the impugned order dated 01.09.2011 of framing of charge/notice against petitioner for offence u/s. 338/304A/34 IPC.
2. Prosecution case in brief is that the petitioner is coowner of property bearing no A20 Nizaumuddin West had engaged the services of contractor Jaipal, architect Devi Ram and structure engineer Manohar Singh for renovation in this property and unfortunately on 08.04.1998 when the support of the newly constructed chajja was removed then that chajja got fallen and one of the labour, Mahender lost his life in the said incident and Brijesh Virmani vs. State, CR No. 105/11, (Contd.. pg-1) two other labours Shri Ram Chander and Bhushan Singh also received injuries.
3. During investigation, police had recorded the statement of injured witnesses and prepared the site plan and also collected the copy of contract between the owner and contractor Jaipal and it is also revealed in investigation that the said construction work was carried with the advise of structure designer Manohar Singh and architecture Devi Ram and the owner had given full responsibility of construction to contractor, structure engineer and architect. Thereafter all these three accused were arrested and on completion of investigation chargesheet was filed. Charges against accused Jaipal, Manohar Singh and Devi Ram u/s. 338/304A/34 vide order dated 26.09.2003 were framed and during trial till date three prosecution witnesses got examined, PW1 Mahesh, PW2 injured Bhushan and PW3 injured Ram Chander.
4. On 19.10.2010, an application for summoning of present revisionist was filed by accused Jaipal Singh on the basis of testimonies of PW2 Bhushan and PW3 Ram Chander and trial court vide order dated 19.10.2010 on the basis of testimonies of PW2 and PW3 summoned the petitioner as an accused in the present case u/s. 319 Cr.P.C. Thereafter, after supplying the documents notice/charge was framed vide order dated 01.09.2011 against petitioner u/s. 338/304A/34 IPC and these impugned orders dated 19.10.2010 and 01.09.2011 are under challenge before this court.
Brijesh Virmani vs. State, CR No. 105/11, (Contd.. pg-2)
5. Ld. counsel for the petitioner submits that the petitioner being mere co owner given the contract of construction of building to the contractor Jaipal, structured engineer Manohar Singh and architect Devi Ram and the supports and ballies of the chajja were removed on their instructions, consequent to which the unfortunate incident of death of one labour Mahender took place and police during investigation do not fine any role of petitioner in said commission of the offence, therefore, he was made a prosecution witness not an accused. Ld counsel for the petitioner further submits that the trial court while passing impugned order dated 19.10.20101 had relied upon the two lines of cross examination of PW2 Bhushan who stated that "it is correct that the owner of the building was himself structure engineer but I do not remember his name. It is correct that whatever was done on the site was with the consent and approval of owner and was executed by the contractor". Ld counsel further submits that trial court has not considered their statement as a whole because in the later part of the statement it is stated by PW2 that "it is incorrect to suggest that owner had directed Jaipal to remove ballies and fattas of the chajja. Vol. In fact Jaipal had told us to remove ballies and fattas of the chajja". Further Ld. counsel submits that this witness has clearly stated that on that day owner was not present when the shutter was removed. Thus, Ld. trial court had wrongly summoned the petitioner in the present case. Ld. Counsel further submits consequently just on the basis of these two lines of cross examination of PW2, no offence is made out against the petitioner/accused for commission of offence u/s. 304A/338/34 IPC thus the impugned order on charge is liable to be set aside.
Brijesh Virmani vs. State, CR No. 105/11, (Contd.. pg-3)
6. Ld. counsel for accused Jaipal submitted that the petitioner is himself is a structural engineer and every activity at the premises took place at his instructions and police deliberately had left him in the investigation. L.d counsel further submits that PW2 in his testimony categorically stated that whatever is done at the site it was done with consent and approval of petitioner. Thus, he is the only person who is responsible for the said offence. Ld. Counsel for accused Manohar Singh structural engineer submitted that accused Manohar Singh is falsely implicated in the present case and he has no role in the present case and entire activities conducted at the instance of petitioner, who himself is an engineer.
7. Arguments heard. Record perused.
8. Police during investigation on the basis of the contract executed between the petitioner and the contractor and further on the basis of statement of injured recorded u/s. 161 Cr.P.C., do not found any material against the petitioner and had not made him accused. PW2 Bhushan in his statement u/s. 161 Cr.P.C. recorded by the police stated that he alongwith deceased Mahender Singh and injured Ram Chander were doing work of opening of shuttering which was placed 1012 days before for construction of chajja and even before opening of shuttering, the supports below are taken out pursuant to which, chajja got fallen and deceased Mahender Singh succumbed to the injuries because of that and he and Ram Chander received injuries due to said incident and at that time thekedar and Brijesh Virmani vs. State, CR No. 105/11, (Contd.. pg-4) engineers etc. were present there. PW3 Ram Chander also in statement u/s. 161 Cr.P.C. stated that he was doing the work of opening of shuttering alongwith Bhushan and during that time only two ballies remained and thus chajja got fallen down and because of that he received injuries and deceased Mahender succumbed to the injuries. He further stated that thekedar, engineers etc. were also present.
9. PW2 Bhushan in his testimony before the court recorded on 16.09.2010 deposed that he opened the shuttering at the instance of contractor Jaipal and the same fell over him and because of this he received injuries and because of that falling, Ram Chander also got hurt and he came to know later on Mahender was died because of the injuries. In cross examination he stated that chajja was erected 1012 days prior to the incident and it normally sets in 2022 days , and he do not know whether owner of building was present there on that day however thekedar was present here. He further stated that it is correct that owner of the building himself structural engineer but he do not remember his name and whatever was conducted at the site was with his consent and approval and executed by the contractor and raw material was supplied by the owner and rent for ballies and fattas was also paid by the owner. He further deposed that it is incorrect to suggest that owner had directed Jaipal to removed ballies and fattas. Further vol. that Jaipal himself told them to remove ballies and fattas. He further submits that owner of the house used to present most of the time at site and owner was not present when the shutter was removed. He further in cross examination by other accused stated that he do not Brijesh Virmani vs. State, CR No. 105/11, (Contd.. pg-5) know if owner was engineer or not.
10. PW3 Ram Chander in his deposition submitted that on 08.04.1998, he was asked by accused Jaipal to open the shutter with another labour Bhushan,m which was constructed 1214 days prior to incident and on opening said chajja suddenly fell down and his right foot got injured and he cannot tell why shutter fell all of a sudden. He furhter told that contractor was present at the site and owner used to visit off and on . He further deposed that in this incident Bhushan also got injured and one Mahender died. In cross examination he deposed that Jaipal used to give them work in the morning and they used to remain there for the whole day and they do not know if there was any engineer at that place or not. He further deposed that he used to see the owner at the spot off and on, who used to check the construction but he do not know if the owner of the house used to instruct the contractor and engineer for construction work. He further deposed that he did not check the chajja whether it was set or not. He further denied suggestion that chajja fell down consequent to the instruction of owner who himself is structural engineer.
11. Ld. Trial court, in impugned order dated 31.10.2010 appears to be persuaded by suggestions given to PW2 Bhushan in cross examination that " It is correct that whatever was done at the site was with the consent and approval of owner and raw material was supplied by him and entire work of building was done under his supervision". Hon'ble Delhi Court in case titled "Sandeep Sharma Vs. State, (2000) Cri LJ, 4448" in para 5 observed Brijesh Virmani vs. State, CR No. 105/11, (Contd.. pg-6) as under:
"...... I am of the considered opinion that while exercising power under section 319 of the Code, the Court must have reasonable satisfaction from the evidence already collected; firstly that the person sought to be arrayed as an accused has committed the offence and secondly that for such offence the newly arrayed accused could as well be tried along with the already arrayed accused. But even this power conferred on the Court is only as discretion and could be discerned from the words "court may proceed against such persons". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever he is called for keeping the consequences of the case, the type of evidence already adduced, the stage at which trial has proceeded, quantum of the evidence collected by then and such like considerations are required to be kept in view. It must be remembered that there is no compelling duty on the Court to proceed against another person. In Municipal Corporation of Delhi v. Ram Kishan Rastogi 1983 (1) SCC 1 : AIR 1983 SC 67 :
(1983 Cr. LJ 159), the Supreme Court has struck a note of caution while considering whether prosecution can produce evidence to satisfy the Court that other accused against whom proceedings have been quashed or those who have not been arrayed as accused, have also committed an offence in order to enable the Court to take cognizance against them along with the Brijesh Virmani vs. State, CR No. 105/11, (Contd.. pg-7) other accused. What has been observed as therein is: "But we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken."
Michael Machado v. Central Bureau of Investigation, AIR 2000 SC 1127 : (2000 Cri LJ 1706), the Supreme Court has held that, "While deciding whether to invoke powers under Section 319 of the Code, the Court must address itself about the other constraints imposed by the first limb of subsection (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses reexamined. The whole proceedings must be recommenced from the beginning of the trial, summon of the witnesses once again and examine them and crossexamine them in order to reach the state where it had reached earlier. If the witnesses already examined are quite large in number, the Court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case against the newly brought accused ending in conviction of the offence concerned, we would say that the Court should refrain from adopting such a course of action."
Brijesh Virmani vs. State, CR No. 105/11, (Contd.. pg-8)
12. Thus, summoning of accused u/s. 319 Cr.P.C. is only in the case of compelling reasons and an extraordinary remedy. In present case, PW2 Bhushan and PW3 Ram Chander in their statement u/s. 161 Cr.P.C. had not suggested any role of owner in removing shuttering activity and only stated that they were removing the shuttering only on the directions of the contractor. In the testimony before court PW2 Bhushan also reiterated that he was asked by contractor Jaipal to remove shuttering and he also stated in cross examination that he do not know if owner was present at that time. But on suggestion of counsel for accused Jaipal stated that whatever was done at the site was with consent and approval of owner and was executed by contractor, and also denied the suggestion that because of the directions of the owner, contractor Jaipal directed them to remove ballies and fattas of the chajja. He in cross examination further stated that owner was not present when the shutter was being removed. PW3 Ram Chander also in his testimony stated that they removed the shuttering at the instance of contractor Jaipal and owner used to see the construction work off and on but he do know if the owner of the house used to instruct the contractor and his engineers. This witness had not stated anything on the factum whether the entire work was performed at the instructions of the owner.
13. The offence is not the construction activity but the rash and negligent act of removing the ballies and fattas without due caution.
14. PW2 and PW3 in their testimonies categorically stated that they removed the shuttering etc., on the directions of contractor Jaipal and both have Brijesh Virmani vs. State, CR No. 105/11, (Contd.. pg-9) denied any role of petitioner in the same. Further it has also not come on record that at the time of removing of shuttering petitioner was present at the spot. Mere on suggestion by the ld. Counsel for the accused Jaipal, PW2 in cross examination deposed that it is correct that whatever was conducted at the site was with his consent and approval and the same was executed by the contractor though immediately in next line denied suggestion that the said removal of ballies and fattas was done at the directions of petitioner. Further, PW3 in his cross examination completely denied even this fact that owner of the house used to instruct the contractor and engineers over the construction activities. Thus in these circumstances mere watching or supervising the construction activities at the house where petitioner himself residing, do not in my view make him culpable for the rash and negligent act of removal of shuttering.
15. However, the petitioner has not challenged the order of summoning dated 19.10.2010 within limitation and same is hopelessly barred by time but fortunately got another chance to argue on his discharge at the time of framing of charge.
16. It is settled law at the time of framing of charge, the court has to see a prima facie case and charge cannot be framed on mere suspicion and further it cannot be framed on surmises and conjectures. There should be some grave suspicion to come on the conclusion that accused has committed offence, then only charge can be framed. In the present case as already discussed just the suggestion that work was done with the consent Brijesh Virmani vs. State, CR No. 105/11, (Contd.. pg-10) and approval of owner and same was executed by the contractor, is not enough to establish prima facie case against petitioner, ignoring the police investigation and the entire context of testimonies of PW2 and PW3.
17. Thus, in view of above discussions, I do not find sufficient material on record for framing of charge/notice u/s. 304A/338/34 IPC against the petitioner. Hence, impugned order dated 01.09.2011 of framing of charge/notice against petitioner set aside and petitioner stands discharged from the case. Revision petition disposed off accordingly. Copy of this order alongwith TCR be sent back to trial court forthwith.
Announced in the open court (AJAY KUMAR JAIN) on 20th January, 2012 ASJ03/SE/New Delhi
Brijesh Virmani vs. State, CR No. 105/11, (Contd.. pg-11)