Madhya Pradesh High Court
Laxmikant Chaturvedi @ Bhallu Cahubey vs The State Of Madhya Pradesh on 5 February, 2018
1 M.Cr.C.No.18431/2017
Laxmikant Chaturvedi alias Bhallu
Vs.
State of Madhya Pradesh
05.02.2018
Shri H.K. Shukla, learned counsel for the petitioner.
Shri Abhishek Mishra, learned Public Prosecutor for the
respondent/State.
With consent heard finally.
The present petition under Section 482 of the Code of Criminal Procedure, 1973 has been preferred by the petitioner for quashment of the order dated 28-07-2017 passed by First Additional Sessions Judge, Dabra District Gwalior in Criminal Revision No.32/2017 whereby the order dated 21-03-2017 passed by the JMFC, Dabra in Criminal Case No.1219/2016 has been confirmed by which the charge under Section 429 of IPC has been framed against the petitioner and also for quashment of entire proceeding of criminal case No.1219/2016.
Precisely stated facts of the case are that one Dhanwanti Bai along with Shriniwas and Jagdish Baghel on 20-08-2016 informed the Police Station Billowa that three buffaloes went missing when they went to grazing behind Sarvodaya Crusher. On the basis of complaint, offence was registered against the petitioner under Section 429 of IPC. Investigation was made and post mortem of one buffalo was conducted who found dead due to electrocution and thereafter charge-sheet was filed.
Trial Court framed the charge against the petitioner under Section 429 of IPC vide order dated 21-03-2017. Same was challenged before the Sessions Court, Dabra in Criminal Revision but failed. Therefore, the instant petition under Section 482 of Cr.P.C. has been preferred for quashment of the criminal proceeding as well as order of framing of charge.
According to learned counsel for the petitioner, trial Court as well as revisional Court erred in passing the impugned order 2 M.Cr.C.No.18431/2017 in respect of framing of charge and whole proceeding against the petitioner deserves to be quashed on the ground that even if contents of FIR and statements are taken on their face value, no case is made out against the petitioner. From the record, it appears that petitioner was not present on spot at the time of incident and there is no direct connection between loose wire of M.P. State Electricity Board (M.P.M.K.V.V. Company Ltd.) and intention of petitioner to cause such electrocution to buffaloes. Basic allegation against the petitioner is in respect of electrocution through electric wire to buffaloes but neither electric wire has been seized nor any eye-witness given any statement of direct involvement of petitioner.
Keshav, the sole eye-witness also stated that on account of snapping of electric wire, buffaloes got electrocuted and the said loose wire coming from the main line, which caused incident. Merely electric connection, in the name of petitioner, is not enough to implicate him for the offence under Section 429 of IPC. It is a fit case of abuse of process of law and it appears that the accident has been converted into source of implication. He referred letter dated 05-09-2016 written by Junior Engineer of M.P.M.K.V.V. Co. Ltd. to the Station House Officer, Police Station Billowa who has specifically mentioned that electricity connection of the petitioner is not from the line coming from Sarvodaya Crusher. He prayed for quashing of criminal proceeding and relied upon the judgment of Hon'ble Apex Court in the matter of State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604.
On the other hand learned counsel for the respondent/State on the basis of charge sheet opposed the prayer made by the petitioner. According to him no case for interference is made out and trial would decide the fate of the petitioner. He prayed for dismissal of petition.
3 M.Cr.C.No.18431/2017Heard learned counsel for the parties at length and perused the charge-sheet.
Scope of interference under Section 482 of Cr.P.C. is well defined. The Hon'ble Apex Court in the matter of Ch. Bhajan Lal and others (Supra) has laid down the guidelines in this regard, same are reproduced as under:
"(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investi-
gation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2)of the Code;
(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2)of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific 4 M.Cr.C.No.18431/2017 provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
The instant case is of Section 429 of IPC, which reads as under:
"429. Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees.--Whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both."
Section 429 of IPC is applicable where injury is caused by the offence of mischief. Intention is gist of offence. Also in order to constitute act of mischief under Section 429 of IPC there must be physical injury from a physical cause. Therefore, from the section itself it appears that provision only applies in those cases where there is deliberate attempt on behalf of accused to commit mischief and the commission of mischief involves animus to do something. Similarly in a case where there is nothing on record that the accused had any enmity with the complainant and if incident has taken then it cannot be said that any mischief was committed by the accused person.
In the above legal backdrop, instant case is to be seen. Here in the present case, the complainant had made complaint before the police station that two neighbourers Shriniwas and 5 M.Cr.C.No.18431/2017 Jagdish Baghel informed the complainant that her three buffaloes went for grazing in the morning out of which one buffalo died in the agriculture field before Sarvodaya Crusher. Complainant expressed her suspicion that buffalo might have died because of electrocution and she has not referred any name in this regard. Statement of Jagdish reflects that son of complainant Dhanwanti Bai (Keshav) was along with buffaloes, agriculture field was water logged and buffaloes went into it, at that time one wire of electric supply cut down from the main line and came down on the field which caused electrocution of the buffaloes, resulting into death of one. Statement further indicates that petitioner has laid electric wire with carelessness, therefore, one wire came down and caused current. Same is the statement of Shriniwas Baghel.
Keshav who appears to be an eye-witness repeated the whole story with additional fact that electric wire was cut down from the main line and when he asked the petitioner/accused about wire then he said that he wants wire to be cut down so that buffaloes may got electrocuted. Same course of events has been repeated by the complainant Dhanwanti Bai.
Perusal of statement of witnesses Shriniwas Baghel and Jagdish Baghel reveals that wire was moving over the agriculture field of Kailash Chauhan and going to the field of present petitioner. Spot map reveals that incident took place in the field of Kailash Chauhan and not in the field of petitioner. Said field of Kailash Chauhan was water logged and wire after being cut from the main line came down to the agriculture field of Kailash Chauhan. It is not possible for a common man to cut the electric line just to electrocute somebody else's buffaloes, because that way, the person who is trying to cause incident may also get electrocuted and may also go closer to the range of live electric wire. No prudent person would cause such 6 M.Cr.C.No.18431/2017 misadventure which will be self-damaging.
Two witnesses namely, Shriniwas Baghel and Jagdish Baghel nowhere stated that petitioner had any intention to cause any misdeed to the buffaloes. Spot map indicates place of incident is other than the agriculture field of petitioner. Junior Engineer in his letter dated 05-09-2016 addressed to the SHO, Police Station Billowa reveals that electric line was not coming from the side of Sarvodaya Crusher. It could have been the fault of M.P. State Electricity Board (M.P.M.K.V.V. Company Ltd.) or at best can be treated as Act of God or Force Majeure.
Besides that statement of complainant and her son Keshav (who happens to be an eye-witness) nowhere referred any previous animosity with the petitioner. In the case of Section 429 of IPC, intention is gist of offence, which does not come out from any statement.
Mischief has been defined under Section 425 of IPC therefore, unless elements of Section 425 of IPC relating to intention and knowledge are proved, Section 429 of IPC will have no application. Mischief must be coupled with intention to cause wrongful loss or cause damage. Mischief involves mental act, destruction animus. Section 429 of IPC is applicable where injury is caused by offence of misconduct and therefore, all the allegation of offence of mischief as defined in Section 425 of IPC must be established for convicting the accused person under this Section. Charge-sheet, FIR, statement of witnesses including eye-witness if are taken on their face value, then they do not establish that accused had any intention of either killing or poisoning or maiming or rendering useless the animal, due to previous animosity, therefore, this charge is nothing but source of harassment to the petitioner.
It is the case of an accident at best and it is common phenomenon in rural area where due to poor maintenance of 7 M.Cr.C.No.18431/2017 electric line or by electricity theft, wires are in compromised position and some times rains and thunder storms worsen the situation, therefore, it was Force Majeure/Vis majeure/Act of God which caused incident and cannot be attributed to human frailty.
The complainant in the FIR says that her buffaloes have died and she has suspicion that they might have been electrocuted behind Sarvodaya Crusher and later on in her statement under Section 161 of Cr.P.C., she says that petitioner has caused incident. When her son Keshav was eye-witness then in FIR she does not disclose any incident took place and by whom. In FIR she referred agriculture field behind Sarvodaya Crusher and in her statement she implicated the petitioner. Spot map also falsified the case of complainant because in the complaint she mentioned the agriculture field behind Sarvodaya Crusher and as per spot map crusher is at some distance and electric line is not coming from Sarvodaya Crusher. FIR is dated 17-09-2016 and the date of incident is 20-08-2016. Therefore, it appears that the complainant has tried to build up a story later on, on false pretext.
Maintaining the wiring is responsibility of M.P. State Electricity Board (M.P.M.K.V.V. Company Ltd.) and not the responsibility of petitioner. In absence of any intention and established enmity between the parties, no case is made out against the petitioner. Case of the petitioner falls under clauses
(a), (c) and (e) of guidelines propounded by Apex Court in case of Ch. Bhajan Lal and others (Supra). The charge framed against the petitioner appears to be abuse of process of law and is source of harassment to the petitioner. Ingredients of Section 425 of IPC are not established prima facie by the complaint and the statement, therefore, the charge under Section 429 of IPC is not made out.
Resultantly, petition preferred by the petitioner is allowed, 8 M.Cr.C.No.18431/2017 charge framed against the petitioner is quashed. Resultantly, the criminal proceedings against the petitioner at Court of JMFC, Dabra in criminal case No.1219/2016 are hereby set aside.
(Anand Pathak)
Anil* Judge
Digitally signed by ANIL KUMAR
CHAURASIYA
Date: 2018.04.03 14:54:14 +05'30'