Punjab-Haryana High Court
Jagdeep Chand Bali vs State Of Haryana on 13 February, 2001
Author: K.S. Kumaran
Bench: K.S. Kumaran
JUDGMENT K.S. Kumaran, J.
1. On a complaint by respondent No. 2-Smt. Bharpai widow of Ra-jinder Singh (deceased in this case) F.I.R. No. 429 dated 28.5.1994 was registered under Section 304A of the Indian Penal Code at Police Station Sadar Gurgaon, wherein the following material allegations have been made.
2. On 22.5.1994, at about 5-30 a.m. the complainant's husband Rajinder Singh left for duty saying that the petitioner-Jagdeep Chand Ball (hereinafter referred as J.C. Ball) had some work to be done by Rajinder Singh. But at 10 a.m. on that day complainant was informed about the death of her husband. On 27.5.1994, the complainant came to know from the employees that her husband had died due to the electric shock while working on the electric pole. The elder brother of Rajinder Singh told her that death took place since the petitioner-J.C. Hali intentionally switched on the electricity. The deceased had also told her a few days back that the Junior Engineer nourished a grudge against him and used to harass him.
3. After investigation, petitioner-J.B. Bali was charge sheeted. On hearing the arguments for the purpose of framing charge against the petitioner, the learned Additional Chief Judicial Magistrate, came to conclusion that the complaint itself is based upon hearsay and is not worthy of credence. He also observed that the complainant had not cited any of the witnesses, who had witnessed the occurrence. The learned Additional Chief Judicial Magistrate also came to the conclusion that the petitioner was not responsible as he switched on the electricity suppjy without having in mind the fact that the deceased was working on the pole either on his own or on the suggestion of somebody else, but not under the instructions of the accused. The learned Additional Chief Judicial Magistrate, further opined that no prosecution could also lie against the petitioner for anything which has been done by him in good faith or intended to be done under the Act in view of the provisions of Section 82 of the Electricity (Supply) Act, 1948. Therefore, the learned Additional Chief Judicial Magistrate held that there was no ground to charge the accuse and, accordingly discharged the petitioner.
4. As against this order of the Additional Chief Judicial Magistrate, Smt. Bharpai (on whose statement the FIR was registered) filed Criminal Revision No. 1 of 3.1.1995 on the file of the Sessions Court, Gurgaon. The learned Additional Sessions Judge, Gurgaon, held that the revision filed by her was maintainable inasmuch as the State has not. filed an appeal. He also did not agree with the view that the petitioner was protected under Section 82 of the Electricity (Supply) Act, 1948. The learned counsel Additional Sessions Judge observed that at the time of considering the materials for the purpose of framing the charge, the Court has only to see whether there are grounds for presuming a case against the accused or not, and that the statement of PWs Krishan Kumar and Dar-shan Singh showed that they had informed the petitioner that the deceased was working on the line, and that inspite of it, the petitioner had switched on the electricity as a result of which Rajinder Singh had died. He, therefore, held that the petitioner herein cannot be presumed to have acted in good faith. Ultimately, he allowed the Revision Petition by his order dated 30.9.1997 (Annexure P-2), set aside the order of the learned Additional Chief Judicial Magistrate, and held that the petitioner was liable to be charge sheeted for the offences as mentioned in the police report, and to be tried accordingly.
5. Aggrieved, the petitioner has approached this Court by means of this petition under Section.482 Cr.P.C. for quashing the abovesaid order-Annexure P-2.
6. I have heard the counsel for both the sides and perused the records.
7. It is not necessary to repeat the facts. Suffice it to say that the petitioner was discharged by the learned Addl. Chief Judicial Magistrate and on a Revision petition filed by the second respondent-Bharpai, the learned Additional Sessions Judge, held that the petitioner was liable to be charge - sheeted for the offence under Section 304A, I.P.C. The contention of the learned counsel for the petitioner is that the Revision before the Sessions Court, is not maintainable. He points out that the offence (Sec. 304A, I.P.C.) allegedly committed by the petitioner is punishable with imprisonment for a term which may extend to two years or with fine or with both and therefore, this is only a summons case. Learned counsel for the petitioner referred to the definition of a summons case and a warrant case. Section 2(x) of the Cr.P.C. defines a warrant case as a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Summons case has been defined in Section 2(w) of the Cr.P.C. as a case (relatingto an offence) other than a warrant case. Hence, the learned counsel forthe petitioner contends that the offence under Section 304A. I.P.C. which is punishable with a maximum imprisonment of two years only, is therefore a summons case only and has therefore, to be tried in accordance with the procedure prescribed in Chapter XX of the Cr.P.C., whereas a warrant case has to be fried in the manner prescribed in Chapter XIX of Cr.P.C. The learned counsel for the petitioner contends that as per Section 240 Cr.P.C., in a case instituted on a police report which has to be tried as a warrant case, if the Magistrate is of the opinion that there are grounds for presuming that the accused had committed an offence, the Magistrate shall frame a charge, but in a case to be tried as a summons case when the accused appears or is brought before the Magistrate, the Magistrate shall put the particulars of the offence of which the person is accused and accused is to be asked to state whether he is guilty or not as per the Section 251 Cr.P.C. (without the necessity of framing forma! charges as contemplated under Section 240 Cr.P.C., as is done in the case of a warrant case). The learned counsel for the petitioner, therefore, contends that though the petitioner is alleged to have committed an offence under Section 304A. , I.P.C. which is punishable with a maximum period of imprisonment for two years only, and though, the case has to be tried as a summons case, the learned Magistrate, as it appears from his order, has proceeded as if the case is a warrant case and had heard the arguments for framing of the charge, and then discharged the petitioner- accused. The learned counsel for the petitioner, therefore, contends that in spite of the fact that the Magistrate proceeded on that basis, the order of discharge passed by the learned counsel Magistrate has to be deemed to be an acquittal as contemplated under Section 255 Cr.P.C., inasmuch as there is no question of framing a charge of discharging an accused in a case to be tried as a summons case, and that there could only be an acquittal. In support of this contention, the learned counsel for the petitioner also relies upon a decision of this Court in Bal Ram Suraj v. Dev Raj Dhiman, 1987(1) R.C.R. 616. That was a case where the petitioner before the High Court was accused of offences under Sections 499, 500 and 501 I.P.C. He was tried by following the procedure prescribed for the trial of the warrant case, whereas the offences were triable as a summons case. After examining the complainant's evidence, the trial Court dismissed the complaint as against which the respondent (before the High Court) filed a Revision Petition before the Additional Sessions Judge, who set aside the order of the trial Court and remanded the case for fresh trial on the ground that the procedure adopted was wrong, and that the dismissal of the complaint against the petitioner did not amount to anything more than his discharge. This order of the learned Additional Sessions Judge was challenged before the Court by filing a Criminal Revision Petition. The contention before this Court was that, had the case against petitioner before the High Court been tried as a summons case, the finding recorded by the trial Magistrate to the effect that the complainant had failed to establish the accusation against him would have resulted in his acquittal and nothing else, and merely because the Magistrate recorded the finding as mentioned above, while trying the case as a warrant case, it cannot change the acquittal into mere discharge as has been held by the Sessions Court. This contention of the petitioner was accepted and this Court, finding that the case was triable as a summons case and the procedure adopted i.e. of a warrant case was patently illegal, held that this illegality cannot possibly go in favour of the respondent-complainant. Ultimately the order of the Sessions Court was set aside and it was ordered that the petitioner stood acquitted of the charge levelled against him.
8. This decision relied upon by the leaned counsel for the petitioner supports the contention put forward by him, and this position is also not disputed by the learned counsel for the respondents. I also find that in this case on hand the procedure that should have been adopted is that prescribed for the trial of a summons case. In spite of the fact that the learned Magistrate had heard arguments for framing a charge and had ultimately discharged the petitioner on the ground that there were no grounds for framing the charge, the order of discharge amounts only to acquittal as contemplated under Section 255 Cr.P.C. In Bal Ram Suraj's case cited above, a decision of this Court in Raja Ram Tre-han v. Principal, Sudarshan Singh Malva Khalsa Higher Secondary School, Ferozepur City, 1981 Crl.L.J. 1469, was relied upon wherein it was held that an order of discharge has to be read as an order of acquittal deemingly to have been passed under Section 255 Cr.P.C. and, therefore, no revision was competent to the Sessions Court.
9. The principles laid down above in these two cases clearly go to support the case of the petitioner, and I am of the view that the discharge of the petitioner in the circumstances of the case has to be treated as an acquittal under Section 255 Cr.P.C.
10. The learned counsel for the petitioner next contends that once it is clear that the petitioner has to be deemed to have been acquittal in the case, only an appeal lies to the High Court against this order of acquittal under Section 378 Cr.P.C. and when the State did not file any appeal against this acquittal, the complainant could have filed a Revision Petition but only to the High Court and not before the Sessions Court. In this connection, the learned counsel for the petitionerr elies upon the decision of this Court in Sunder Lat v. Surat Singh, 1983(2) R.C.R. 466, wherein this Court has held that a Revision Petition against an order of acquittal passed by a Magistrate does not lie before the Sessions Court. This decision again supports the contention of the learned counsel for the petitioner, and this position again is not disputed by the leaned counsel for the respondents. Therefore, it is clear that the Revision Petition before the learned Additional Session Judge, was not competent and consequently the impugned order passed by the learned Additional Sessions Judge, is illegal and unsustainable. But, the learned counsel for the 2nd respondent contends that the present petition under Section 482 Cr.P.C. is not maintainable, and that the petitioner ought to have filed a Revision Petition against the order of the learned Additional Sessions Judge. He contends that as against the order of discharge, it is only the second respondent who had filed the Revision Petition before the learned Additional Sessions Judge, and there is no bar against the petitioner herein prohibiting him from filing a Revision petition in this Court. The learned counsel for the petitioner on the other hand contends that this petition under Section 482 Cr.P.C. could still be treated as a Criminal Revision Petition and disposed of accordingly. He contends that even if the Section of Cr.P.C. and the nomenclature given by a party before the Court are wrong and inapplicable, the Court can still consider the proceedings under the proper Section and appropriate nomenclature, and dispose it of if the proceedings are otherwise competent and maintainable.
11. I agree with the learned counsel for the petitioner in this respect. In spite of the fact that the petition has been filed under Section 482 Cr.P.C. and has not been named as a Revision Petition, this Court can still treat this as a Criminal Revision Petition and consider the case of the petitioner on that basis. The learned counsel for the second respondent-complainant has not been able to point out any ground which will disable this court from doing so. Therefore, by treating this petition as a Criminal Revision Petition, I am of the view that the petitioner's case can be considered and decided.
12. The learned counsel for the second respondent contends that even by treating (his petition as a Criminal Revision Petition, the jurisdiction of this Court will be very limited, inasmuch as this Court will be examining only the correctness, legality or propriety of any finding or order of an inferior Court. But as pointed out already, the learned Additional Sessions Judge was not competent to entertain the Revision Petition itself in this case and, therefore, the entire proceedings before the learned Additional Sessions Judge, are illegal and unsustainable. Therefore, this Court, in the exercise of its revisional jurisdiction can intervene in this case.
13. In these circumstances, by treating this petition as a Criminal Revision Petition, I am of the view that for the reasons mentioned above, the order of the learned Additional Sessions Judge, has to be set aside.
14. Accordingly, this petition is allowed and the impugned order of the learned Additional Sessions Judge, dated 30.9.1997 (Annexure P-2) is set aside.
15. Petition allowed.