Delhi District Court
A.S. Parmar vs The State (Govt. Of Nct Of Delhi) on 28 May, 2007
-: 1 :-
IN THE COURT OF SHRI V.P. VAISH, ASJ, ROHINI, DELHI
Criminal Revision No. 03/07
Date of hearing arguments: 28.05.2007
A.S. Parmar,
S/o Shri Joginder Singh Parmar,
R/o A-36, Shanker Garden,
Vikaspuri, New Delhi ...... Petitioner
Versus
The State (Govt. of NCT of Delhi) .... Respondent
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ORDER
1. This revision petition is directed against an order dated 16.11.2006, passed by Ld. Metropolitan Magistrate, Rohini, Delhi.
2. The backdrop of the present revision petition is that on 22.07.1999 Shri Paras Ram son of Shri Shanker Lal lodged a report that his father Shanker Lal had gone to fetch fodder from the field, which was taken on rent from Shri Khem Chand. There was broken live electricity wire hanging inside the field, when his father started from the field, his left hand touched with the said electricity wire and he was electrocuted. He took his father to private Doctor but in the way his father expired. He had stated that his father -: 2 :- expired due to negligence of officials of DVB. In the post mortem report, the cause of death has been opined as Asphyxia with cardiac failure as a result of electrocution. On the basis of said complaint, FIR No. 763/99 under Section 304-A IPC was registered. After completion of investigation charge sheet for the offence under Section 304-A IPC was filed against accused Mahadev and the name of Shri Birbal, AEE and the present petitioner namely A.S. Parmar, Inspector DVB were shown in column No.2. On 23.02.2001 it was submitted that accused Mahadev had already reported the matter to higher authorities for taking necessary steps i.e. electric wire was broken but no steps were taken and the incident took place due to negligence of concerned officer AE Birbal and Inspector A.S. Parmar. Photostat copies of letters duly endorsed dated 07.09.99 and copy of complaint were filed by accused Mahadev. Ld. Metropolitan Magistrate issued show cause notice to AE Birbal and Inspector A.S. Parmar of DVB, Nangloi Zone, whose name were shown in column No.2 of the charge sheet. On 24.05.2003 the process of AE Birbal received back with the report that he had expired. The petitioner A.S. Parmar appeared on 15.11.2003 and sought time for filing reply but no reply was filed. After hearing submissions made by the petitioner and the co- accused, notice under Section 304-A IPC was given to the petitioner and the co-accused Mahadev, vide impugned order dated 10.11.2006.
-: 3 :-3. Feeling aggrieved by the said order the petitioner has preferred the present revision petition. I have heard Shri Ch. Ram Kishan Advocate for the petitioner and Shri N.S. Kadyan, Ld. Addl PP for the State. I have also carefully gone through material on record.
4. Ld counsel for the petitioner submits that in the month of July-1999 the petitioner was employed as Inspector, Zone No. 1151. The name of the petitioner is not mentioned in the FIR. He further submits that in charge sheet filed under Section 173 Cr.P.C., it is mentioned that no evidence to arrest the petitioner and AE Birbal was found, their names are mentioned in column No.2 and the Court may summon the said two persons.
5. Ld counsel for the petitioner also contented that at the time of filing charge sheet, cognizance under Section 190 (b) or (c) of the Code of Criminal Procedure was not taken against the petitioner. The petitioner was not directed to furnish the bail bond nor he had furnished the bail bond. On 05.04.2005 the petitioner moved an application for supply of copies but the same were not supplied to him. He also submits that on 10.1.2006 Ld counsel for the petitioner could not appear and neither copies were supplied to the the petitioner nor arguments on charge were heard and the impugned order was passed.
-: 4 :-6. Ld counsel for the petitioner also submits that on 22.07.99 the petitioner was on duty from 1800 hours to 2400 hours in C shift at break down office situated at Guru Harikishan Nagar whereas the time of alleged incident is 10.30 a.m. on 22.07.99. In support of his submission he has filed photostat copy of letter No.XD/NGL/99- 2000/14/555 dated 30.06.1999 issued by Executive Engineer (D) Nangloi.
7. On the other hand Ld. Addl PP for the State submits that on the day of incident i.e. 22.07.1999, the petitioner was working as Superintendent, District Nangloi, Delhi Vidyut Board, Delhi. Ld. Addl PP has also pointed out that during investigation a report was called from Shri Avinash Kumar Aggarwal, Assistant Electrical Inspector, Govt of NCT of Delhi was obtained, in the said report it is mentioned that inspection was carried out in the presence of Shri A.S. Parmar, who was working as Superintendent, District Nangloi, Delhi Vidyut Board, on 22.07.99 Shri Shanker Lal while passing through the fields near tube well of Surat Singh village Tilingpur Kotla, Delhi, happened to come in contact with the line snapped conductor of an overhead line of DVP, received electric shock and subsequently died. Ld. Addl PP further submits that copy of letter dated 30.06.99 which has been filed by the petitioner shows that on 22.07.99 the petitioner was on duty in C shift from 6 p.m. to 12 midnight. According to him the duty hours on the day of incident are immaterial, the petitioner was working as Inspector and he was -: 5 :- responsible for getting the electric wire checked so that no untoward incident should happen.
8. Ld Addl PP further submitted that wire was broken for the last several days, complaint was made, which was attended by Mahadev (Mistry) who also gave his report but the same was not repaired. The petitioner being Inspector of the said Zone is responsible for the same.
9. I have carefully considered the submissions of Ld defence counsel and Ld Addl PP for the State. It is settled law that cognizance is taken of an offence and not of offenders. The word 'cognizance' and 'commencement of proceedings' are not synonyms in their connotation. The cognizance is something prior to, and does not necessarily mean, commencement of judicial proceedings. The proceeding is commenced only when accused is made a party before the Court. The object of taking cognizance is that before proceedings are taken against an accused, such as would bring him to the Court of justice, the Magistrate must have before him knowledge based either upon a complaint or upon a police report. There is no prescribed form of taking cognizance. The word 'cognizance' is used in the Code of Criminal Procedure to indicate the point that the Magistrate takes judicial notice of an offence. It is a word of indefinite import, and is perhaps not always used in exactly the same sense. Non recording of an order specifically to -: 6 :- the effect that the cognizance has been taken amounts to procedural irregularity and no failure of justice can occasion thereby.
10. In Nathu Vs State of Rajasthan reported as 1996 Criminal Law Journal 919, it was held that if the Magistrate, applies his mind and orders to proceed under Sections 200 and 202 Cr.P.C., he can be said to have taken cognizance. In another case titled as State Vs. Pukhia reported as AIR 1963 Rajasthan 48 it was held that Magistrate is said to take cognizance as soon as he takes legal notice, and applies his mind to the suspected commission of the offence, with a view to decide whether he should take such judicial action preliminary to inquiry as is hereinafter mentioned, viz. recording a complaint, issuing processes, or ordering a previous inquiry.
11. The Apex Court in case titled as Devarapalli Lasminarayana Vs. Narayana reported as AIR 1976 SC 1672 has observed that the expression 'taking cognizance of an offence, means that the Magistrate should apply his mind for the purpose of proceeding under Section 200 and that if he has done so, then he is said to have taken cognizance of the offence. The said judgment was relied upon in case titled as R. Rajendra Reddy Vs. M/s. Sujaya Feeds reported as 1995 Criminal Law Journal 1427. In para -: 7 :- 4 of the said Judgment it was held that:
"It is well settled that it is not necessary for the Magistrate to specifically state that he is taking cognizance of the offence as laid down by the Supreme Court in the above decision, if he takes steps as provided under Section 200 then it necessarily means that he has taken cognizance of the offence. This factor is made clear in another decision of this Court reported in Abdul Khadar Mohammad Gous Attigeri Vs. State, ILR (1985) Karn 175. In the present case it is seen that on 05.04.93, to which date the case had been posted, the Magistrate has proceeded to record sworn statement of the complainant. He has also marked certain exhibits produced by the complainant. The very act of the Magistrate in recording sworn statement of the complainant would indicate that he has taken cognizance of the offence. As such the contention that the Magistrate has not at all taken cognizance of the offence cannot be accepted".
12. The other submission of Ld counsel for the petitioner is that petitioner was posted at break down office situated at Guru Harikishan Nagar on 21.07.99 and 22.07.99, as per letter dated 30.06.99, copy of which has been filed during the course of arguments in the present revision petition. In this regard it may be mentioned that at the stage of framing of charge, defence of accused cannot be considered as per law laid down in case titled as State of Orissa Vs. Debendra Nath Padhi reported as 2005 (1) Crimes 1 (SC). In the said case it was held that:-
-: 8 :-"What is to the meaning of the expression 'the record of the case' as used in Section 227 of the Code. Though the word 'case' is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit 'the case' to the Court of Session and send to that court 'the record of the case' and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evidence that the record of the case and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209. That is the plain meaning of Section 227 read with Section 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. The right is granted only at the stage of trial".
13. As regards submission of Ld counsel for the petitioner that the show cause notice was issued to the petitioner but the petitioner was not heard on the said show cause notice, it may be mentioned that petitioner failed to file any reply despite repeated opportunities granted on 15.11.2003 and 01.05.2004. The copies of charge sheet and other documents were supplied on 10.11.2006 as mentioned in the order sheet dated 10.11.2006. It is not necessary -: 9 :- to obtain signatures of accused in token of supplying the copies. The order sheet clearly reflects that learned defence counsel submitted that the accused has received the complete set of copies. There is presumption of correctness of the fact recorded in judicial proceedings.
14. In the instant case Shri Jai Bhagwan in his statement under Section 161 Cr.P.C. dated 22.07.99 ha stated that deceased Shanker Lal had taken the field of Chander, there was electricity line of DVB in the said field and there was electric pole of DVB in the said field. He has also stated that electric wire was broken for the last two days and he had informed to the lineman but they did not care, the said broken electric wire was hanging and deceased Shanker Lal expired due to negligence of employees of DVB. The prosecution has also filed photostat copies of some complaint and report stating that wire was broken which was connected. There is a report of Mahadev (mistry) stating that wire was broken which was connected and supply was started, wire was weak due to which they were repeatedly broken and they should be removed. During investigation the report of Shri Avinash Kumar Aggarwal, Assistant Electrical Inspector, bearing No. ED2(4)/99/D-SW/1080 dated 17.08.99 was obtained. In the said report it is mentioned that case was investigated by Shri Ashwani Kumar Aggarwal alongwith Mukesh Gupta, Electrical Oversear in the presence of Mr. A.S. Parmar, Superintendent, District Nangloi, DVB on 27.07.99. Shri -: 10 :- S.K. Bhattacharya, Executive Engineer, District Nangloi, DVB has forwarded an accident report stating that a complaint regarding electrocution of a person at village Tilingpur Kotla, Delhi was received in their Nangloi complaint center on 22.07.99 and from where it was passed on to the sub - complaint center Rnholla and the telephone operator issued complaint No. 823922 dated 22.07.99 to Mahadeva, Junior Lineman at about 2.15 p.m. on 22.07.99 Shri Mahadeva, Jr. Lineman alongwith his staff went to the said site of accident and on their return submitted a report that they found no conductor snapped at site. In the said report it is also mentioned that on enquiry from the public and police staff who are witnesses to the said accident, that the lowest phase conductor of DVB LV Mains running between two poles near the tubewell of Surat Singh, Village Tilingpur Kotla, Delhi, got snapped and the live broken conductor connected to this feeding-end of the line, had been lying on the ground, from which Shri Shankar Lal received electric shock. It was further reported by the public that the said overhead conductor has snapped two days before the occurrence of this accident and was left lying on the ground even after the accident, when it was finally get disconnected by the police. It was stated by Shri Jai Bhagwan S/o Suraj Bhan of village Tilingpur Kotla, Delhi that he had brought into the notice of the area lineman about the said broken conductor prior to the occurrence of the accident, but the lineman did not pay any attention to my request and left the broken conductor as it was. It is also mentioned -: 11 :- guarding had not been provided under the said overhead lines as required under the provisions of Rule 88 of Indian Electricity Act, 1956 and the said overhead line had not been found protected with a device such as circuit breaker. In the said report it is also mentioned that it is a case of sheer negligence on the part of DVB Lineman Mahadeva and other DVB staff. Had they timely repaired the said snapped conductor, this accident could have been averted.
15. In view of the above discussion, the revision petition fails, same deserves to be dismissed and same is hereby dismissed.
16. Trial Court record alongwith copy of this order be sent back. File of revision petition be consigned to record room.
Announced in open Court (V.P. VAISH)
Dated 28.05.2007 ADDL. SESSIONS JUDGE
ROHINI: DELHI