Sanjay S/O Purushottam Agrawal vs State Of Maharashtra, Through ...
2017 Latest Caselaw 3788 Bom

                                                    1                      revn111.14.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

                     CRIMINAL REVISION NO.111/2014

        Sanjay s/o Purushottam Agrawal,
        aged about 45 years, Occ. Business,
        r/o Tapadiya Nagar, Akola.                           .....APPLICANT

                               ...V E R S U S...

 1. State of Maharashtra through
    Police Station Officer, P.S. Risod,
    Dist. Washim.

 2. Prakash s/o Dagaduji Gajre,
      aged 36 years, Occ. Agriculturist, 
      r/o Palaskheda, Tq. Risod,
      Dist. Washim.                                           ...NON APPLICANT
 -------------------------------------------------------------------------------------------
 Mr. Shyam Dewani, Advocate for applicant. 
 Mr. R. S. Nayak, A.P.P. for non applicant no.1.
 -------------------------------------------------------------------------------------------
                               CORAM:- V. M. DESHPANDE, J.

DATED :- 30.06.2017

ORAL JUDGMENT

1. Rule. Rule is made returnable forthwith. Heard finally

by consent of the parties. Heard Mr. Dewani, learned counsel for

the applicant in extenso.

2. The revision challenges the order passed by learned

Additional Sessions Judge, Washim dated 11.12.2013 by which

the learned Judge rejected the application filed on behalf of the

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present applicant below Exh.-6 in Sessions Trial No.11/2012 by

which his application for discharge and dropping of the

proceeding was rejected.

3. Two fold submissions were made before this Court by

the learned counsel for the applicant. Firstly, the FIR bearing

Crime No.172/2010 for the offence punishable under Section 304

of the IPC registered with Police Station Risod, which culminated

into Sessions Trial itself is not maintainable since the first

informant initially preferred a private complaint for the offence

punishable under Section 304 of the IPC which was registered as

Regular Criminal Case No. 633/2009 in which the learned

Magistrate passed an order under Section 203 of the Cr. P. C. and

the revision filed against the said order was withdrawn. His

second submission is that for the same set of facts as it revealed

from these two complaints, the Court below ought to have

dropped the proceedings for the offence punishable under Section

304 of the IPC. Also, he submitted that remedy for the

complainant lies elsewhere since according to the learned counsel

for the applicant it is a tortuous liability. Lastly, he submitted that

on any count, the applicant cannot be prosecuted for the offence

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punishable under Section 304 of the IPC since it was never his

intention and negligence on his part. There was no occasion for

those two boys to go near the pit.

Mr. Dewani, has handed over a list of reported cases.

However, he relied on Poonam Chand Jain & anr...vs..Fazru; AIR

2010 SC 659, an unreported judgment of this Court delivered at

Aurangabad in Criminal Writ Petition No. 624/2006 dated

13.10.2016, decision of the Hon'ble Apex Court in Anju

Chaudhary.vs.State of U.P.(2013) CRI.L.J. 776, B. P. Ram .vs. State

of Madhya Pradesh; (1991) CRI.L.J. 473, Prof. Gurinder Singh .vs.

State of Goa; (2011) ALL M.R. (Cri) 812, State of Maharashtra .vs.

Sheikh Ilias (2010) ALL M.R. (Cri) 1128.

4. It is not in dispute that a work was allotted to the

present applicant by the State Government. He excavated the land

resulting into a big pit. During the rainy season, the said pit was

completely filled with water. It was expected from the applicant

to take necessary precautions to see that no unfortunate incident

occurs. However, it appears that no steps were taken by the

present applicant. Consequently, on 20.10.2009, two unfortunate

boys, Vitthal aged 8 years and Rameshwar aged 6 years who were

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son and nephew of the non applicant no.2 lost their lives by

drowning in the said pit. The said was reported by non applicant

to police station. However, instead of registering any offence

against the present applicant, an Accidental Death proceeding was

registered vide AD No. 55/2009. Therefore, the non applicant

no.2 approached the learned Magistrate by filing complaint for an

offence punishable under Section 304-A of the IPC and the said

was registered as R.C.C.No.633/2009. Though, the order is not

placed on record in support of issuance of the directions by the

learned Magistrate to the police for the inquiry, the said aspect is

not in dispute and ultimately the police filed their report under

Section 202 of Cr.P.C. which is filed on record, not by the present

applicant but by non applicant no.2 which is available at page no.

65 of the compilation. In the last paragraph of the said report,

after due inquiry, the police submitted as under:

"lnj pkSd'kh o lk{knkj ;kaps c;ku o:u o ?kVuk LFkGkps ifjfLFkrho:u vtZnkjpk eqyxk foBBy izdk'k xtsZ o; 8 o"ksZ iqr.;k jkes'oj lqHkk"k xtsZ o; 6 o"ksZ jkg.kkj iGl[ksMk ;kaps ej.kkl Bsdsnkj lat; iq:"kksRre vxzoky vdksyk ;kapk fu"dkGthi.kk o cstokcnkji.kk dkj.khHkqr Bjyk vkgs- rjh ekfgrhl o iq<hy dk;Zokghdfjrk pkSd'kh vgoky lsos'kh lknj vkgs "

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Though it is not at all binding on the learned

Magistrate to accept the report of police officer but when the

learned Magistrate is not concurring with the report filed by the

police officer, the learned Magistrate was duty-bound to record his

reason for his disagreement. However, the learned Magistrate

vide order dated 12.07.2010 without any whisper in it, has passed

order dropping the proceeding against the present applicant by

invoking powers under Section 203 Cr. P. C.

5. The unfortunate father was required to approach to the

revisional Court. During the pendency of the said revision, it

appears that wisdom prevailed in the mind of the Investigating

Officer therefore he has registered an offence against the present

applicant vide CR No.172/2010. Therefore, the non applicant

no.2 did not press his revision and it was allowed to be

withdrawn. Thus the challenge of the non applicant against the

order passed by the learned Magistrate under Section 203 of

Cr.P.C. was not decided by the learned revisional Court on merit.

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6. After the FIR was lodged, the police officer completed

his entire investigation and vide report under Section 173 Cr.P.C.

filed the final report before the learned Magistrate.

Worth to note here that till the filing of the application

for discharge, at no point of time, the wisdom of the investigating

officer was tested by the present applicant either by filing an

application under Section 482 Cr. P. C. before this Court for

questioning of the FIR for quashing of the charge-sheet.

7. The learned Magistrate in whose Court the charge-

sheet was presented found that the case is triable by the Court of

Sessions and hence an order of committal was passed and in the

Court of Sessions Judge, it was registered as Sessions Trial

No.11/2012. On 21.03.2012, an application for discharge was

moved on the ground that the Sessions Trial is nothing but a

double jeopardy. The learned Sessions Judge has dismissed the

said application.

8. The cases which are cited by the learned counsel for the

applicant, I need not comment since those are the settled

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principles of law. However, merely because the cases are cited

that does not require the Court to deal with each and every case if

prima facie it appears that the facts in the reported cases and the

facts in the case at hand are altogether different. Therefore, in

order to avoid bulky order, I am not discussing each case. Suffice

it to say that the cases which are cited by the learned counsel for

the applicant are not applicable in the present set of facts.

9. The law laid down by the Hon'ble Apex court in the

matter of Poonam Chand Jain & anr...vs..Fazru; (supra), shows

that if the first complaint is dismissed on merit, then the second

complaint is not maintainable. It would be useful to refer to

paragraph 27 of the said judgment. Paragraph 27 reads thus:

"27. Following the aforesaid principles which are more or less settled and are holding the field since 1962 and have been repeatedly followed by this Court, we are of the view that the second complaint in this case was on almost identical facts which was raised in the first complaint and which was dismissed on merits. So the second complaint is not maintainable. This Court finds that the core of both the complaints is the same. Nothing has been disclosed in the second complaint which is substantially new and not disclosed in first complaint. No case is made out that even after the exercise of due

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diligence the facts alleged in the second complaint were not within the application of the first complainant. In fact such a case could not be made out since the facts in both the complaints are almost identical. Therefore, the second complaint is not covered within exceptional circumstances explained in Pramatha Nath (supra). In that view of the matter the second complaint in the facts of this case, cannot be entertained."

10. The first complaint, which was filed by the non

applicant no.2 was for the offence under Section 304-A of the IPC

whereas the applicant is now facing trial for the offence under

Section 304. The first complaint was not decided by the learned

Magistrate or by the learned revisional Court on its own merit.

There is no finding of any competent court in that behalf.

Therefore, in my view, the reliance placed by the applicant on

Section 300 Cr. P. C. is wholly unwarranted.

Insofar as the reported case of the Madhya Pradesh

High Court is concerned, the facts of the said case are altogether

different. In the said case the boy who was drowned in the

swimming pool had entered surreptitiously. Therefore, on the

facts itself, the said principle of the Hon'ble High Court cannot be

made applicable in the present case.

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11. Section 228 of the Cr. P. C. deals with framing of

charge. The said reads as under:

"228. Framing of charge.

(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."

It is settled principle that the degree of evidence for

deciding the application for discharge and trial on its merit are

altogether different. At the time of framing of charge the Court

has to see whether there is material and the accused is reasonably

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connected with the offence alleged to have been committed and

on the basis of the said material, there is reasonable probability or

chance of the accused being found guilty of the offence alleged. If

the answer is in affirmative then the Court is at liberty to presume

"that the accused has committed an offence" as mentioned in

Section 228 of the Cr. P. C. for the purpose of framing of the

charge. The Apex Court in the case of Soma Chakravarty vs.

State, through CBI, reported in (2007) 2 SCC (Cri) 514, has

ruled that the charges can be framed when there exists a strong

suspicion but it is also a trait that the Court must come to a prima

facie finding that there exists some material therefor.

In the present case there exists material against the

applicant. In fact, as noted from his counsel's submissions, he

questions the wisdom of the Court below that since the first

complaint which was filed by the complainant privately was

disposed of by the learend Magistrate under Section 203 of the Cr.

P. C. and the revision filed against the said order was withdrawn,

the present prosecution case is required to be dropped.

12. At the cost of repetition, it is observed that the first case

of the complainant was not decided by the learned Magistrate on

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its merit and as observed in the preceding paragraphs, inv eiw of

the principles of the Hon'ble Apex in the case of Poonam Chand,

(supra), the submissions of the learned counsel are devoid of any

substance.

13. The charge-sheet which is filed on record clearly shows

that the prosecution has made out a prima facie case against the

applicant. The degree of evidence for deciding the application for

discharge and trial on merit are altogether different. What is

required to be seen by the Court is as to whether the prosecution is

able to point out that there is some material by which the charge

could be framed against the accused.

14. It is not in dispute on the part of the present applicant

that the pit was dug at his behest in discharge of Government

contract entrusted to him. When a pit is dug, which admeasures

about 10 X 12 ft. and 10 ft. deep and 15 ft. well inside it, it was

expected from the present applicant to take necessary precaution

by putting some fencing or by deputing some person to give

caution to the passersby.

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Nothing that sort of has been done by the applicant.

The submission of the learned counsel for the applicant that there

was no reason for those two unfortunate boys to go there near the

pit since their school is situated far away from the pit is also

absolutely atrocious and that shows that the applicant has scant

respect for the human life.

The learned counsel for the applicant invited my

attention to ground (e) of the grounds which states that it was not

possible for the applicant to erect fencing over said 1.5 km. Cut of

Trend. Further, he has stated that the applicant had put a caution

board over the site in respect of the restricted area.

In my view, this is the defence of the applicant which

can be tested only during the course of trial. The verdict of the

trial will only decide whether the applicant was negligent or not.

However, since prima facie material is available to show that the

applicant was negligent. This is not the stage where the Court

should consider the defence of the applicant.

In that view of the matter, I find no merit in the present

revision. The same therefore dismissed.

Rule is discharged. No order as to costs.

JUDGE

kahale