Patna High Court
Kapildev Prasad And Ors vs The State Of Bihar on 8 April, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.11629 of 2016
Arising Out of PS. Case No.-30 Year-2015 Thana- MUZFFARPUR GRP CASE District-
Muzaffarpur
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1. Kapildev Prasad, Son of Shiv Chandra Prasad, resident of Village-
Bhagwatpur, P.S.- Karja, District- Muzaffarpur.
2. Kanhaiya Lal Sah, Son of Sri Mahendra Sah, resident of Village- Patahi, P.S.
Belsand, District- Sitamarhi.
3. Rajeev @ Rajeev Kumar, Son of Sri Baldev Prasad, resident of Village-
Khapbankat Tola, Chapwa, P.S.- Nautan, District- Siwan.
4. Laxmi Narayan Singh @ L.N. Singh, son of Late Suresh Singh, resident of
Village- Ajgara, P.S.- Bhadaur, District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar.
2. Rakesh Kumar S/O- Sakaldeo Rai R/O- Village-Harbela,P.S.-Batnaha,
District- Sitamarhi.
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Ajay Kumar Thakur, Advocate
Ms. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
For the Opposite Party/s : Mr. D.P.Tiwary, APP
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 08-04-2024
1. Heard learned counsel appearing on behalf of the parties.
2. The present application has been filed for quashing the order dated 05.02.2016 passed by learned Railway Judicial Magistrate, Sonepur, in connection with U.T. No. 119/2016 arising out of Muzaffarpur Rail P.S. Patna High Court CR. MISC. No.11629 of 2016 dt.08-04-2024 2/14 Case No. 30/2015, where cognizance was taken for the offences under sections 287, 337, 338, 307, 435, 427, 119, 304/34 of the Indian Penal Code read with Sections 154, 175 of the Railways Act.
3. Prosecution case in brief is that one Rakesh Kumar lodged a fardbeyan on 10.06.2015 at about 6.30 p.m. at Sadar Hospital, Muzaffarpur before the Police officer of Muzaffarpur G.R.P. stating therein inter alia that he has gone to Muzaffarpur Station and after purchasing tickets, he went at Platform No.-4 for boarding the train, namely Kavi Guru Train for going to Ludhiyana and he was sitting beneath passenger shed, near to a Pole marked with IMP545. At about 3.30 p.m., a wire of country liver angel in which electric current of 25 K.V. was flowing broke down, as a result of which electric current started flowing in IMP 545 pole, causing catching of fire on the platform, in which he as well as other (9 names given in the fardbeyan) received injuries including burn injuries. At that time, Rail Police Patna High Court CR. MISC. No.11629 of 2016 dt.08-04-2024 3/14 Muzaffarpur acting promptly came at the platform and saved the passengers and brought them to Sadar Hospital, Muzaffarpur from where, some of the injured were referred to S.K.M.C.H. The electric wire is under the T.R.D. Department of Railways. Larsen & Toubro Company has installed poor quality of angel on the pole and there was negligent in electrification and similarly the maintenance department of O.H.E i.e. T.R.D. are not properly maintaining, suggesting negligent in discharging duty of person concerned, as a result of which he and other co-passengers received burn injury. There was no facility of primary health check up at the place of occurrence nor the electrical engineering department tried to switch off after the short circuit.
4. With aforesaid factual allegation, the informant, who is also one of the injured as victim of the occurrence, lodged a Formal Information Report with Muzaffapur Rail P.S., which has been registered as Muzaffarpur Rail P.S. Case No. 30 of 2015 registered for Patna High Court CR. MISC. No.11629 of 2016 dt.08-04-2024 4/14 the offences under Sections 287, 337, 338, 307, 435, 427, 119, 34 of the Indian Penal Code (in short 'IPC') read with Sections 154, 175 of the Railways Act, where , subsequently after death of one of the injured, namely, Mahesh Kumar Mahto, Section 304 of the IPC was also added.
5. Police after investigation, submitted charge- sheet No. 12 of 2016 on 26.01.2016 for aforesaid offences, for which the FIR was lodged.
6. Upon perusal of materials available on record, learned Railway Judicial Magistrate took cognizance of offence through impugned order dated 05.02.2016 for the offence under Sections 287, 337, 338, 307, 435, 427, 119/34 of the IPC read with Sections 154, 175 of the Railways Act.
7. It is submitted by Mr. Ajay Kumar Thakur, learned counsel appearing for the petitioners that it is a purely accident out of Act of God, where it surfaced during investigation that one crow, while sitting on naked Patna High Court CR. MISC. No.11629 of 2016 dt.08-04-2024 5/14 electric wire touched another wire, causing short circuit, due to which a stay insulator (O.H.E.) break down. It is pointed out that it is not even a case of negligent and as such, no any prima facie material available for the offence alleged under Section 307 of the IPC and also of 304 of the IPC. It is submitted that from the perusal of FIR, no case appears prima facie made out against petitioners qua Junior Engineers posted over there and other technical persons.
8. Mr. Thakur, further submitted that work of electrification was outsourced to a private company namely, M/s Larsen & Toubro, who was responsible to install "structure bond" as appears from para-70 of the case diary. Mr. Thakur further submitted that petitioners were not even remotely connected with the occurrence and their implication is only under vicarious liability, as they were posted as technical persons by Railway. The concept of vicarious liability is not acceptable in criminal prosecution.
Patna High Court CR. MISC. No.11629 of 2016 dt.08-04-2024 6/14
9. It is further submitted by learned counsel that the offence under Indian Railways Act, for the offences under Sections 154 and 175, cognizance can be taken by learned Jurisdictional Magistrate only on the basis of complaint made by the Officer, authorized, in view of the Section 180F of the Railways Act, 1989. It is also pointed out that G.R.P. was not authorized at any point of time that competent authority will file a complaint for the offences mentioned under Sub-Section (2) of Section 179 of the Railways Act, 1989. It is pointed out that similarly Section 227 of the IPC is non cognizance offence.
10. In view of above, it is submitted that the cognizance taken by the learned Judicial Magistrate for the offence under Sections 154, 175 of Railways Act, 1989 and similarly for offence under Section 287 of the IPC appears bad in eyes of law. While concluding the argument, it is submitted that the manner in which, the FIR was explained in technical terms, coupled with the Patna High Court CR. MISC. No.11629 of 2016 dt.08-04-2024 7/14 fact in manner cognizance were taken for the offences under Sections 307 and 304 of the IPC, it sufficient to suggest prima facie, that the present proceeding is nothing but a malicious prosecution, which out rightly be quashed/set aside.
11. In support of his submission, learned counsel relied upon the legal report of the Hon'ble Supreme Court as reported in the matter of State of Haryana and Ors. Vs. Bhajan Lal and Ors., reported in 1992 Supp (1) Supreme Court Cases 335 and also in the matter of Usha Chakraborty and Another vs. State of West Bengal and Another reported in 2023 SCC OnLine SC 90
12. On repeated calls, none appears on behalf of opposite party no. 2, to join the present proceeding
13. Learned APP while opposing the application submitted that petitioner being Engineer of zone, cannot absolved with their responsibilities. while arguing the matter it is fairly submitted by learned APP that prima Patna High Court CR. MISC. No.11629 of 2016 dt.08-04-2024 8/14 facie, ingredients out of narration of FIR, is not suggesting a case for the offence under Section 307 of the Indian Penal Code
14. It would be apposite to re-produce para 102 of the State of Haryana and Ors. Vs. Bhajan Lal and Ors., reported in 1992 Supp (1) Supreme Court Cases 335, which reads as under:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) 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 Patna High Court CR. MISC. No.11629 of 2016 dt.08-04-2024 9/14 constitute any offence or make out a case against the accused.
(2) Where the allegations in the first informant report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation 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.
(3) 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 nay offence and make out a case against the accused.
(4) 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.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent persons can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) 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 provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is Patna High Court CR. MISC. No.11629 of 2016 dt.08-04-2024 10/14 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."
15. It would further be apposite to re-produce relevant Paragraph No. 10 of Usha Chakraborty's case (supra), which reads as under:-
10. In Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Others, a three Judge Bench of this Court laid down the following principles of law:-
"57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused Patna High Court CR. MISC. No.11629 of 2016 dt.08-04-2024 11/14 with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be Patna High Court CR. MISC. No.11629 of 2016 dt.08-04-2024 12/14 premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and
xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR."
16. In view of aforesaid factual and legal submission, as all four petitioners are Junior Patna High Court CR. MISC. No.11629 of 2016 dt.08-04-2024 13/14 Engineers/technical persons of the zone, where, the occurrence took place. It is also admitted position that the work of electrification was given to M/s Larsen & Toubro, who was under obligation to follow the safeguard by installing "structural bond". It also appears out of submission and record that at no point of time before the occurrence, said "structure bond" was ever installed as a security features. The narration of FIR is nowhere suggesting any ingredients of Sections 307 and 304 of the IPC on its face. It also not appears to support prima facie, the ingredients of offence of Sections 435, 287 and 337 of the IPC. On contrary, during investigation, it appears that entire occurrence took place due to sitting of a crow on naked electric wire.
17. In view of aforesaid, it can be safely said that that the present proceeding is nothing but the malicious prosecution which out rightly be quashed/set aside, which get it strength further from guiding notes as available in paras 1, 5 and 7 of Bhajan Lal's Case Patna High Court CR. MISC. No.11629 of 2016 dt.08-04-2024 14/14 (supra).
18. Accordingly, impugned order of cognizance dated 05.02.2016 passed by learned Railway Judicial Magistrate, Sonepur, is hereby set aside and quashed qua petitioners with all its consequential proceedings.
19. Let copy of this order be sent to the trial court, without delay.
(Chandra Shekhar Jha, J) veena/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 09.04.2024 Transmission Date 09.04.2024