Bombay High Court
Mr. Anand Jaiswal And Others vs The State Of Maharashtra Thr. ... on 17 March, 2017
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.85 OF 2017
1. Anand Jaiswal,
Aged Major, Occ. Advocate,
r/o. Anand, North Ambazari Road,
Dharampeth, Nagpur-10.
2. Prashant Vaidya,
Aged Major, Occ. Business,
r/o. F-4, Snehdeep, Laxmi Nagar,
Nagpur - 22.
3. Mr.Bhoopinder Singh Bhatti,
Aged Major, Occ. Service,
r/o. Plot No.113, Misal Layout,
Post-Jaripatka, Nagpur-14.
4. Parimal Vaidya,
Aged Major, Occ. Business,
r/o. 518/B, Congress Nagar,
Nagpur-12.
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5. Murali Pantula,
Aged Major, Occ. Business,
r/o. A-401, Lotas Court,
Near VCA Stadium, Civil
Lines, Nagpur-01.
6. Sunil Deoupadhyay,
Aged Major, Occ. Service,
r/o. Plot No.12, SC Railway,
II Layout, Pratap Nagar,
Nagpur-22.
7. Pramod Kulkarni,
Aged Major, Occ. Retired.
r/o. A-5, Samarth Apartment,
48, Ramkrishna Nagar,
Khamla, Nagpur-25.
8. Alhad Gokhale,
Aged Major, Occ. Service,
r/o. S/42, Narhar Apartment,
Saharabuddhe Layout,
Bharat Nagar, Nagpur-33.
9. Hemant Gandhi,
Aged Major, Occ. Business,
r/o. August 15 Apartment,
Opp. Sai Mandir, Dhantoli,
Nagpur-440 012.
10.Ashwin Dorairajan,
Aged Major, Occ. Business,
r/o. Flat No.402, Rudraksha
Riddhi Apartment, 109,
Telecom Colony,
Nagpur-440 022.
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11.Dilip Daga,
Aged Major, Occ. Advocate,
r/o. 97/1, Opp. CTO, Temple
Road, Near Konark Apartment,
Civil Lines, Nagpur-01.
12.Dilip Parteki,
Aged Major, Occ. Service,
r/o. Rachna Gokul Apartment,
Plot No.B-202, Mankaput Ring
Road, Near Patil Traders,
Nagpur-30.
13.Mrs.Anupama Bansod,
Aged Major, Occ. Service,
r/o. 22, SE Railway Colony-I,
Ranapratap Nagar,
Nagpur-440 022.
14.Farokh Dastoor,
Aged Major, Occ. Service,
r/o.8th Kamdin Blocks,
Near Parsi Fire Temple, Opp.
Gandhi Sagar, Nagpur-18.
15.Anand Manohar Deshpande,
Aged Major, Occ. Advocate,
r/o. Gajanan-Vijay, RPTS Road,
Ramkrushna Nagar, Nagpur. .......... APPLICANTS
// VERSUS //
1. State of Maharashtra,
Through Police Station Officer,
Police Station, Hingna, Tahsil
and District Nagpur.
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2. Ms Dipali Masirkar,
Deputy Commissioner of Police,
Zone-I, Office of the Police
Commissioner, Civil Lines,
Nagpur.
3. Ravindra Pardesi,
Deputy Commissioner of Police
(Special Branch), Civil Lines,
Nagpur.
4. Hemantkumar Kharabe,
Senior Police Inspector,
Police Station, Hingna,
District Nagpur.
5. The Collector,
Nagpur, having its Office
at Collectorate Office,
Civil Lines,
Nagpur-440 001. .......... RESPONDENTS
____________________________________________________________
Mr.Sunil Manohar, Sr. Cl. with Mr.A.A.Naik, Advocate and
Mr.R.M.Daga, Advocate for the Applicants.
Mr.Rohit Deo, Advocate General and Mrs.Bharti Dangre, G.P. for
Respondent/State
____________________________________________________________
CORAM : B.R. GAVAI
AND
KUM.INDIRA JAIN, JJ.
DATE : 17.3.2017.
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ORAL JUDGMENT (Per B.R. GAVAI, J) :
1. Rule. Rule is made returnable forthwith. Heard finally
with consent.
2. Applicant nos. 1 to 13 are the Office bearers of the
Vidarbha Cricket Association; whereas applicant no.14 is the
employee of said Association. Applicant no.15 was the Security In-
charge for T-20 International Cricket Match between India and
England, which was held on 29.1.2017 at the Vidarbha Cricket
Association's Stadium at Jamtha. The applicants have approached
this Court praying for quashing and setting aside the First
Information Report registered by Police Station, Hingna vide Crime
No.60 of 2017, dt.31.10.2017, under Sections 188, 336 of the Indian
Penal Code and Sections 131A and 135 of the Maharashtra Police
Act, 1951 against the said applicants.
3. The facts, in brief, which give rise to the present
application, are as under :
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The Vidarbha Cricket Association (hereinafter referred to
"the Association") has constructed a Stadium at Jamtha, which was
earlier within the jurisdiction of the Superintendent of Police,
Nagpur (Rural) and subsequently, it came under the jurisdiction of
the Commissioner of Police, Nagpur after expansion of jurisdiction of
the Nagpur Police Commissionarate. The Vidarbha Cricket
Association was to host the T-20 International Cricket match
between India and England at Nagpur on 29.1.2017. The applicants
had made an application to respondent no.3/Commissioner of Police,
Nagpur seeking various permissions. The said application was made
on 3.12.2016. Though the said application was made on 3.12.2016,
the Association, after a period of almost one month received a
communication on 4.1.2017 from Police Station, Hingna raising
certain issues. Reply was sent by the Association on 6.1.2017
answering the queries made by Police Station, Hingna. Along with
the reply, NOC from the Fire department obtained by the Association
was also submitted.
4. The Association was under the impression that the
Performance License would be required for holding the Cricket
match as on the earlier occasions also, Performance License was
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obtained. An application was, therefore, made on 6.1.2017 to the
Commissioner of Police for issuance of Performance License for
holding Cricket match on 29.1.2017. The Commissioner of Police
vide communication dt.11.1.2017 informed the Association that, in
view of Government Letters dt.22.12.2015 and 2.12.2016, there was
no need for obtaining Performance License. However, vide the said
communication, the Association was informed by the Commissioner
of Police that, because the foreigners were performing in the said
event, it was necessary to take permission of the concerned Police
Station, the Deputy Commissioner of Police (Traffic) and the Deputy
Commissioner of Police of the concerned Zone. Though, according to
the applicants, it was not necessary to obtain such permission, the
Association made an application for the said purpose. The
Association received a communication from the Deputy
Commissioner of Police, Special Branch, Nagpur on 16.1.2017
regarding Catering arrangement for the players and informing the
Association that since the players were of International level, from
the security point of view, the food products should be supplied by
the persons having approval of the Food and Drugs Department. On
the same day, applicant no.14 replied to the said communication and
pointed out that the catering arrangement for the players would be
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done by Hotel Pride, Nagpur and also enclosed a copy of the
Certificate issued under the Food Safety and Standards Act, 2006.
Thereafter, another communication was received on 16.1.2017 from
the Deputy Commissioner of Police, Special Branch, Nagpur dealing
with various issues, inter alia, the issue of parking, ticketing, names
of photographers, reporters, board members etc. Applicant no.14
sent a reply to the said communication.
5. In the meantime, an application was made by the
Association to the Government of Maharashtra for grant of
permission to sell the tickets online pointing out that capacity of
stadium was nearly 45000 seats. The Government of Maharashtra
vide Government Resolution dt.18.1.2017 had granted permission
and the Collector, Nagpur also granted NOC vide communication
dt.20.1.2017.
6. On 23.1.2017, a meeting was held in the Office of
Commissioner of Police to discuss various issues about holding of
Cricket match. The Police Authorities also held a Press Conference
on the same day to inform the public at large as to how they
intended to allow the flow of traffic and parking of vehicles.
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7. It is the contention of the applicants that though, till
then, the Police Authorities were cooperative, all of a sudden, from
27.1.2017, their attitude changed. It is the contention of the
applicants that there were certain issues with regard to demand of
complimentary passes/tickets and on account of differences on the
said issue, the attitude of Police Authorities took a volte-face. There
are various allegations made in the application by naming certain
Officers who, according to the applicants, had made a demand for
complimentary passes/tickets. It is contention of the applicants that,
though initially 217 complimentary passes/tickets were given to the
Police Authorities, they returned the same on 27.1.2017.
8. On 27.1.2017, the Association received a communication
stating therein that there are various compliances to be made and
permission for holding the match would be subject to such
compliances. It is the contention of the applicants that, on 27.1.2017,
another communication was received from the Deputy Commissioner
of Police, Zone-I regarding private security persons to be deployed at
the Stadium by the Association. The Association received another
communication from the Senior Police Inspector, Traffic Branch
informing the Association that the parking area provided by the
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Association was extremely inadequate and that barricading on the
road made by the Association was also weak.
9. The Association addressed a communication on
28.1.2017 replying to the communication dt.27.1.2017 informing the
Deputy Commissioner of Police, Zone-I giving details about the steps
taken by the Association for smooth conduct of the Cricket match.
10. According to the applicants, though the Police
Authorities as early as on 6.1.2017 were supplied with NOC of the
Fire department, the Police Authorities on 28.1.2017 raised the issue
about Fire NOC and Occupancy Load.
11. According to the applicants, on the same day, the
Association also received a communication dt.28.1.2017 from the
Senior Police Inspector raising various issues which, according to the
applicants, were already dealt with and complied with. The
applicants contend that again, vide communication dt.28.1.2017, the
applicants were informed to submit Electrical Inspector's NOC,
Structural Stability Certificate etc. as were sought by the Deputy
Commissioner of Police-Zone I. The Association received a
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communication on 28.1.2017, at around 8.30 p.m. wherein the
Association was informed that, the temporary permission granted on
27.1.2017 stood cancelled and in any case, if an untoward incident
takes place, the Managing Committee of the Association will be
responsible. A meeting was arranged in the morning of match i.e. on
29.1.2017 in the Office of Commissioner of Police, Nagpur along
with applicant no.1 and other representatives of the Association. The
Association addressed a communication dt.29.1.2017 to the
Collector, Nagpur seeking his clarification on the letter dt.28.1.2017
addressed by the Deputy Commissioner of Police.
12. The match, as scheduled, was held on 29.1.2017.
However, since various issues were raised by the Deputy
Commissioner of Police, Zone-I in the communication by the said
Officer to the Association, the Association sought clarification from
the Collector vide communication dt.29.1.2017. The Collector vide
his communication dt.31.1.2017 addressed a communication to the
Association pointing therein that the issues raised by the Deputy
Commissioner of Police, Zone-I were not correct.
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13. In this background, the First Information Report came to
be lodged on 30.1.2017 by respondent no.1 against the present
applicants for the offences punishable under Sections 336 and 188 of
the Indian Penal Code and Section 131A and 135 of the Maharashtra
Police Act, 1951.
14. Vide order dt.2.2.2017 passed by us, we issued notice to
the respondents and granted ad interim relief in terms of prayer
clause (ii).
15. The effect of the said order was that though no coercive
steps were to be taken against the applicants, the respondents were
free to proceed further with the investigation.
16. Thereafter, on various dates, adjournments were sought
by the learned Public Prosecutor on the ground that investigation
was in progress. In the meantime, we had orally requested the
learned Public Prosecutor to impress upon the Police Commissioner
to see to it that a quietus is given to the situation, inasmuch as it was
in nobody's interest to proceed further with the present proceedings.
We had also requested the learned Public Prosecutor to impress upon
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the Police Commissioner that, on a trivial issue, the situation should
not lead to unnecessary complications, depicting that it was a fight
between the Police Officers on one hand and the Officers of the
Association on the other hand. However, in spite of several
adjournments, it appears that the Commissioner of Police was not in
a position to find out a solution.
17. When the matter was listed before this Court on
23.2.2017, we passed an order stating therein that though we have
no hesitation in deciding the matter on merits, taking into
consideration the perception of the citizens at large, it will be in the
interest of everybody that a quietus is given to the entire controversy.
On the said date, the learned Public Prosecutor gave a suggestion
that the Investigating agency would complete the investigation
within a period of one week from that day and would place the
investigation papers before the learned Advocate General of
Maharashtra. She further suggested that the learned Advocate
General would apply his mind to the investigation papers and take
an appropriate decision as to what future course of action is to be
adopted in the present case. The learned Public Prosecutor further
14 apl85.17.odt
stated that the Police Authorities would abide by the opinion given
by the learned Advocate General.
18. Mr.Sunil Manohar, learned Senior Counsel appearing on
behalf of the applicants readily accepted the suggestion given by the
learned Public Prosecutor. The learned Senior Counsel further stated
that, in order of avoid any controversy and in order to give a quietus
to the situation, the applicants have decided to withdraw all the
adverse allegations made against the Officers of the Police
Department. He submitted that the affidavit withdrawing the
allegations against the Police Officers would be filed before this
Court within a period of three days. Accordingly, the affidavit has
also been filed by the applicants withdrawing all the adverse
allegations made against the Police Officers.
19. We, therefore, by the said order dt.23.2.2017, had
directed the Investigating Agency to complete the investigation and
place the entire papers before the learned Advocate General on or
prior to 2.2.2017. The learned Advocate General was requested to
apply his mind to the investigation papers and take a decision as to
15 apl85.17.odt
what future course of action is required to be taken in the matter and
place his decision before this Court on or prior to 9.3.2017.
20. On the next date, the learned Public Prosecutor had
sought extension on the ground that, since the papers were
voluminous, the learned Advocate General will require some more
time to give his report. Accordingly, the matter was adjourned till
today.
21. Today, when the matter was listed in the first Session,
the learned Advocate General had placed on record the report
prepared by him on the basis of investigation conducted by the
Investigating agency. Since the learned Advocate General had
opined by the elaborate reasoning that there is no justification for
continuing with the prosecution in relation to Crime No.60 of 2017
for the offences punishable under Sections 188 and 136 of the Indian
Penal Code and Sections 131A and 135 of the Maharashtra Police
Act, we had requested the learned Public Prosecutor to inform the
Court as to whether the Police Authorities propose to file 'C'
Summary proceedings, the learned Public Prosecutor requested for
grant of sometime and stated that she would consult the
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Commissioner of Police and make a statement at 1 O' Clock. At 1 O'
Clock, when the matter was called out, she stated that since the
period was very short, the Commissioner would require atleast half
an hour's time to apply his mind and take a decision thereon. Though
the learned Public Prosecutor had requested only for half an hour
time, we informed her that we will give an hour's time to the
Commissioner and hear the mater at 2.00 p.m.
22. At 2.00 p.m. when the matter was listed, the learned
Public Prosecutor has brought to our notice the communication
addressed to her by the Police Commissioner, Nagpur City
requesting for atleast two weeks' time to go through the report of the
learned Advocate General and thereafter, to give her necessary
instructions.
23. We fail to understand such an approach on behalf of the
Police department. When a suggestion was given at the instance of
the Police department that, after investigation is complete, the
investigation papers be referred to the learned Advocate General so
that he applies his mind and gives his opinion as to what future
course of action is to be adopted, it is totally improper now to seek
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time to study the learned Advocate General's report, rather than
taking a decision to abide by it, as was assured to the Court. It was
on the suggestion of the learned Public Prosecutor, that Mr.Sunil
Manohar, learned Senior Counsel agreed and also applicants
volunteered to withdraw all the allegations made against the Police
Officers. The conduct of the Department in giving impression to the
applicants that, in order to give quietus, they would abide by the
opinion of the learned Advocate General, thereby making them to
withdraw the allegations against them and thereafter, now turning
back and saying that the Commissioner wants to apply his mind to
the report of the learned Advocate General, in our considered view,
is totally unethical.
24. When, at the instance of the respondent/Police
Authorities, the matter, after thorough investigation by the Police
Authorities, is referred to the learned Advocate General, who is a
Constitutional Authority and who has given his opinion, we see no
rationale in the Commissioner of Police again seeking time to apply
his mind to the report submitted by the learned Advocate General
and thereafter, take a decision. When a suggestion was given at the
behest of the respondents to refer the investigation for the learned
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Advocate General's opinion and when, on the basis of the
representation made by the respondent/Authorities, the applicants
agreed upon the said suggestion and withdrew their allegations, in
our view, such a volte-face at the instance of the Commissioner of
Police is totally unreasonable. We have no hesitation in saying that
the communication which is addressed by Commissioner of Police to
the learned Public Prosecutor is of such a nature which shows
disrespect to the High Constitutional Authority of the Office of the
learned Advocate General. We deprecate such a practice on the part
of the Officer of the State Government in going to the extent to say
that he wants to examine the opinion given by the highest Law
Officer of the State i.e. the learned Advocate General. It need not be
emphasized that no Authority of the State including the
Commissioner of Police has a jurisdiction to sit in an appeal over the
opinion expressed by the learned Advocate General of the State.
25. As the learned Advocate General has considered the
entire investigation papers and the position of law and has given an
elaborate report, we find that it will be appropriate to refer to the
same :
19 apl85.17.odt
"First Information Report /Crime 60/17 registered at
Hingna Police Station:-
3. This FIR is registered on complaint lodged by
Mr.Hemant Kumar Kharabe, Senior Police Inspector,
Hingna Police Station. The FIR alleges commission of
offences under Sections 188 and 336 of the IPC. The first
paragraph is a narration of events leading to the issuance
of the police permission ("NOC") to hold the 20-20 cricket
match between India and England at the VCA stadium on
29th January 2017. Paragraph 2 of the FIR recites that the
permission to hold the match was revoked by and under
letters dated 27th and 28th January 2017. The said paragraph
further recites that the VCA office bearers were put on notice
that if despite the cancellation of the police permission the
cricket match is held, the office bearers shall be responsible
should there be any untoward incident. Paragraph 3 of the
FIR makes a reference to a letter issued by the Chief Fire
Officer, Nagpur Municipal Corporation dated 21st January
2017 and to the fire NOC issued under the Maharashtra Fire
Prevention and Life Safety Measures Rules, 2009, purportedly
showing 34,571 as the occupancy load. Paragraph 3 further
states that despite the occupancy load shown in the fire NOC,
the VCA represented the occupancy to be 44,000 without
producing the certificate of the competent authority/officer in
support of such claim. It is further alleged that no permission
was obtained from the local police to use loudspeakers and,
in conclusion, paragraph 3 alleges that in view of the rash
and negligent act of the VCA a situation was created whereby
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human life or the personal safety of others was endangered
due to the crowd which assembled and the resultant obstacle
to the common citizens using the public roads. Paragraph 4
alleges that there is a disobedience of orders issued under
Sections 37(1) and 37(3) of the Maharashtra Police Act, 1951,
since police permission was not obtained as was mandated by
the Fire Service Department, Electricity Department and the
letter dated 20th January 2017 issued by the Collector.
3.1. At the outset, I must advert to an issue which,
although not raised in the Criminal Applications before the
Hon'ble High Court, would go to root of the matter. VCA is
a trust registered under the Maharashtra Public Trusts Act.
Section 11 of the Indian Penal Code defines "person" as
under:
"Person".-The word "person" includes any Company
or Association or body of persons, whether
incorporated or not.
Accordingly, a public trust registered under the
Maharashtra Public Trusts Act may be considered to be a
person under Section 11 of the Indian Penal Code, and by
extension, a public trust may be liable for an offence under
Section 336 as in the present case.
3.2. In the present case, the investigation papers as well as
the FIR reveal a number of allegations against the VCA
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itself, whereas a number of officer bearers of the VCA have
been named accused, without there being any specific role
attributed to them.
3.3. In Keki Hormusji Gharda v. Mehervan Rustom
Irani, (2009) 6 SCC 475, the Apex Court held:
"17. The Penal Code, 1860 save and except in some
matters does not contemplate any vicarious liability on
the part of a person. Commission of an offence by
raising a legal fiction or by creating a vicarious
liability in terms of the provisions of a statute must
be expressly stated. The Managing Director or the
Directors of the Company, thus, cannot be said to
have committed an offence only because they are
holders of offices. The learned Additional Chief
Metropolitan Magistrate, therefore, in our opinion,
was not correct in issuing summons without taking
into consideration this aspect of the matter. The
Managing Director and the Directors of the Company
should not have been summoned only because some
allegations were made against the Company."
3.4. The Sections of the IPC under which the office bearers
have been charged do not contemplate any vicarious liability.
Accordingly, in the absence of specific allegations against the
office bearers, it would not be appropriate or legally
22 apl85.17.odt
permissible to continue criminal proceedings against them
for offences allegedly committed by the VCA itself.
Investigation Report of FIR/Crime 60/17
3.5. In any event, I have given my anxious consideration to
the entire investigation report of FIR/Crime 60/17 and it
would be appropriate to make a brief reference to the
evidence collected by the investigating agency in support of
its contention that offences under Sections 336 and 188 of
the IPC and 131(a) and 135 of the Police Act are made out.
3.6. According to the investigating agency, offence
punishable under Section 188 of the IPC is made out in
view of (i) the alleged violation of the order promulgated
by the Joint Commissioner of Police, Nagpur, dated
24th January 2017 under Section 37(1), (3) of the Police
Act; (ii) violation of order promulgated by the
Joint Commissioner of Police, Nagpur, dated 24th
January 2017 under Section 3(1), 36 of the Police Act; (iii)
non-compliance of instructions of the Collector given vide
letter dated 20th January 2017; and (iv) non-compliance
of instructions of the Commissioner of Police given vide
letter dated 11th January 2017.
3.7. In support of its claim that an offence under
Section 336 is made out, the investigating agency contends
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(i) the fire NOC was not issued by the competent authority;
(ii) the fire NOC showed occupancy capacity of 34,571 and
yet VCA sold approximately 43,000 tickets; (iii) the VCA does
not have building sanctioned plan duly approved by the
Collector, nor does the VCA have the completion certificate
and the occupancy certificate under Rule 12 of the
Development Control Regulations, from the Collector; (iv)
the VCA has not obtained the consent to establish and
consent to operate from the Maharashtra Pollution Control
Board; (v) VCA did not obtain the environmental
clearance certificate; (v) the NOC of the fire
department was mandatory for sanctioning of building plan
which is not obtained by the VCA; and (vi) parking space
provided is short of the statutory requirement.
3.8. Section 131(a), 135 of the Police Act are invoked on
the allegation of violation of orders dated 24th January 2017
referred to supra.
3.9. Whether an offence under Section 336 of the
Indian Penal Code is prima facie made out?
3.10. The short question with which I am confronted is
whether, on the face of the allegations in the FIR, and the
supporting evidence collected during the investigation, is there
a case made out for continuing with the prosecution of the
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office bearers of the VCA for an offence under Sections 188
and 336 of the IPC and Section 131(a), 135 of the Police
Act?
Section 336 of the Indian Penal Code
4. Section 336 of The Indian Penal Code, 1860 provides:
"336. Act endangering life or personal safety of others.
Whoever does any act so rashly or negligently as to
endanger human life or the personal safety of others,
shall be punished with imprisonment of either
description for a term which may extend to three
months, or with fine which may extend to two hundred
and fifty rupees, or with both."
4.1. Accordingly, the ingredients of the offence, which
the prosecution must prove, are:
a. That the accused committed the act in question.
b. That the act was done in a rash or negligent manner.
c. That the act was such as to endanger human
life or the personal safety of others.
4.2. Law of Torts, Ratanlal & Dhirajlal (24th Edn., 2002)
defines negligence as under:
25 apl85.17.odt
"Negligence is the breach of a duty caused by the
omission to do something which a reasonable man,
guided by those considerations which ordinarily
regulate the conduct of human affairs would do, or
doing something which a prudent and reasonable
man would not do. Actionable negligence consists in
the neglect of the use of ordinary care or skill
towards a person to whom the defendant owes the
duty of observing ordinary care and skill, by which
neglect the plaintiff has suffered injury to his person
or property. ... the definition involves three
constituents of negligence: (1) A legal duty to exercise
due care on the part of the party complained of
towards the party complaining the former's conduct
within the scope of the duty; (2) breach of the said
duty; and (3) consequential damage. Cause of action
for negligence arises only when damage occurs; for,
damage is a necessary ingredient of this tort."
4.3. The then High Court of Nagpur, in The State
Government vs. Rangaswami MANU/MH/0169/1951 in a
case under Section 304-A of the Penal Code, held:
"10. In the well-known case of Empress of India v. ldu
Beg 3 All 776 Straight, J., differentiated between
criminal rashness and criminal negligence in the
following terms:
26 apl85.17.odt
... criminal rashness is hazarding
a dangerous
or
wanton act
with the knowledge that
it so, and that
it may cause injury.
but without intention to cause
injury. or knowledge that
it will probably be
caused. The criminality lies in running
the risk
of doing such an act with recklessness or
indifference as to the consequences. Criminal
negligence is the gross and culpable neglect or
failure to exercise that reasonable and proper
care and precaution to guard against injury
either to the public generally or to an
individual in particular, which, having regard
to all the circumstances
out of which the
charge has arisen, it was the imperative duty
of the accused person to have adopted .
11. Holloway J. in Reg. v. Nidamarti 7 M HCR 119
said:
Culpable rashness is acting with the consciousness
that the
mischievous and illegal consequences may
follow but with the hope that they will not and
often with the belief that the actor has taken
sufficient precautions to prevent their happening.
The imputability arises from acting despite the
consciousness. Culpable negligence
is acting
without the
consciousness,
that
the
illegal
27 apl85.17.odt
and mischievous
effect will
follow,
but in
circumstances which show that: the actor has
not exercised the caution incumbent
upon
him, and that,
if he had, he would have the
consciousness. The imputability arises from
the neglect of the civic duty of circumspection.
12. These interpretations were approved in H. W Smith
v. Emperor 53 Cal 333 by a Division Bench which also
referred to the following dictum of Alderson B. in Blyth
v. Birmingham Water Works Co. (1856) 11 Ex 781 :
Each case must be judged in reference to the
precautions, which, in respect to it, the ordinary
experience of men has found to be sufficient,
though the use of special or extraordinary
precautions
might
have prevented the
particular accident which happened.
Mukerji, J., in the Division Bench
case then
pointed out that
the
question whether
the
accused's conduct amounted to culpable
rashness or negligence depended directly on
the question as to what was the amount of care
and circumspection which a
prudent
and
reasonable man would
consider to be sufficient
upon all the circumstances of
the case."
28 apl85.17.odt
(emphasis supplied)
4.4. Accordingly, from Rangaswami (supra), the
following relevant propositions of law emerge:
a. Criminal rashness is hazarding a dangerous or wanton
act with the knowledge that it is so, and that it may cause
injury, but without intention to cause injury, or
knowledge that it will probably be caused. The criminality
lies in running the risk of doing such an act with
recklessness or indifference as to the consequences -
(Approved in Jacob Mathew v. State of Punjab, (2005) 6
SCC 1, Alister Anthony Pareira v. State of Maharashtra,
(2012) 2 SCC 648 and Sushil Ansal v. State, (2014) 6
SCC 173). The imputability arises from acting despite
the consciousness. Culpable negligence is acting without
the consciousness, that the illegal and mischievous effect
will follow, but in circumstances which show that; the
actor has not exercised the caution incumbent upon him,
and that, if he had, he would, have the consciousness. The
imputability arises from the neglect of the civic duty of
circumspection- (Approved by Sushil Ansal (supra))
b. Criminal negligence is the gross and culpable neglect
or failure to exercise that reasonable and proper care and
precaution to guard against injury either to the public
generally or to an individual in particular, which, having
regard to all the circumstances out of which the charge
29 apl85.17.odt
has arisen, it was the imperative duty of the accused
person to have adopted - (Approved by Jacob Mathew
(supra), Alister Anthony Pareira (supra) and Sushil Ansal
(supra))
c. Each case must be judged in reference to the
precautions, which, in respect to it, the ordinary
experience of men has found to be sufficient, though
the use of special or extraordinary precautions might
have prevented the particular accident which happened.
d. Whether the accused's conduct amounted to culpable
rashness or negligence depended directly on the
question as to what was the amount of care and
circumspection which a prudent and reasonable man
would consider to be sufficient upon all the
circumstances of the case.
4.5. "Negligence" and "rashness" were discussed in some
detail, including by adverting to the English case law on the
point, in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1:
"14. In
order to hold the existence of criminal
rashness or criminal negligence it shall have to
be found out that the rashness was of such a
degree as to amount to taking a hazard
knowing that the hazard was of such a degree
that injury was most likely imminent. The
element of criminality is
introduced by the
30 apl85.17.odt
accused having run the risk of doing such
an
act with recklessness and indifference to the
consequences
15. ...Where negligence is an essential
ingredient of the offence.
the negligence to be
established by the prosecution
must be culpable
or gross and not the negligence merely based
upon an error of judgment.
16. ... It has been held that while negligence
is an omission to do something which a
reasonable man, guided
upon
those
considerations which ordinarily regulate the
conduct of human affairs, would do, or
doing
something which a
prudent
and
reasonable
man would
not
do; criminal negligence is the
gross and culpable neglect or failure to
exercise that reasonable
and proper
care and
precaution to guard against injury either to
the public generally
or to an individual in
particular, which having regard
to all the
circumstances out of which the charge has
arisen, it was the imperative duty of the
accused person
to have adopted.
31 apl85.17.odt
17. In our opinion, the factor of grossness or degree
does assume significance while drawing distinction in
negligence actionable in tort and negligence punishable
as a crime. To be latter, the negligence has to be gross
or of a very high degree.
A review of Indian decisions on criminal
negligence
37. We are inclined to, and we must - as duty-
bound, take note of some of the relevant decisions of
the Privy Council and of this Court ... On a review of
judicial opinion and an illuminating discussion on
the points which are also relevant before us, what
Their Lordships have held can be summed up as
under:
(iii) It
is impossible to define culpable or
criminal negligence, and it is not possible to
make the distinction between
actionable
negligence and criminal negligence
intelligible, except by means of illustrations
drawn from actual
judicial
opinions. (AIR
p.
75c-d)
45.Spring Meadows Hospital v. Harjol Ahluwalia
[(1998) 4 SCC 39] is again a case of liability for
32 apl85.17.odt
negligence by a medical professional in civil law. It was
held that an error of judgment is not necessarily
negligence. The Court referred to the decision in
Whitehouse v. Jordan [(1981) 1 All ER 267 : (1981)
1 WLR 246 (HL)] and cited with approval (at SCC p.
47, para 9) the following statement of law contained
in the opinion of Lord Fraser determining when an
error of judgment can be termed as negligence: (AllER
p. 281b-c)
"The true position is that an error of judgment may,
or may not, be negligent; it depends on the nature of
the error. If it is one that would not have been made
by a reasonably competent professional man
professing to have the standard and type of skill
that the defendant held himself out as having, and
acting with ordinary care, then it is negligent. If, on
the other hand, it is an error that a man, acting
with ordinary care, might have made, then it is not
negligence."
47. Before we embark upon summing up our
conclusions on the several issues of law which we have dealt
with hereinabove, we are inclined to quote some of the
conclusions arrived at by the learned authors { [Ed.: Alan
Merry and Alexander McCall Smith.]] of Errors, Medicine
and the Law (pp. 241-48), (recorded at the end of the book
in the Chapter titled "Conclusion') highlighting the link
33 apl85.17.odt
between moral fault, blame and justice in reference to
medical profession and negligence. These are of significance
and relevant to the issues before us. Hence we quote:
(iv) Conviction for any substantial criminal
offence requires that the accused person should
have acted with a morally blameworthy state
of mind. Recklessness and deliberate
wrongdoing, are morally blameworthy, but any
conduct falling short of that should not be the
subject of criminal liability. Common law
systems have traditionally only made
negligence the subject of criminal sanction
when the level of negligence has been high - a
standard traditionally described as gross
negligence. In fact, negligence at that level is
likely to be indistinguishable from recklessness.
(ibid., p. 248)
(emphasis supplied)
Conclusions summed up
48. We sum up our conclusions as under:
(1) Negligence is
the breach
of
a
duty
caused
bv
omission to
do something which a reasonable man
guided bv those considerations which ordinarily
34 apl85.17.odt
regulate the conduct of human affairs would do,
or doing something which a prudent and
reasonable man would not
do. The definition
of
negligence as
given
in
Law
of
Torts,
Ratanlal
&
Dhirajlal (edited
by Justice G.P. Singh), referred
to hereinabove, holds good.
Negligence
becomes
actionable on account of injurv resulting from the
act or omission amounting to negligence
attributable to the person
sued. The essential
components of negligence
are three:
"duty",
"breach" and "resulting
damage".
(5) The jurisprudential concept of negligence
differs
in civil and criminal law. What mav be
negligence in civil law may not necessarily be
negligence in criminal law. For negligence
to amount to
an offence, the element of mens
rea must be shown to
exist. For an act to amount to criminal negligence, the
degree of negligence should be much higher
i.e.
gross or of a very high degree.Negligence which
is neither gross nor of a higher degree may provide a
ground for action in civil law but cannot form the
basis for prosecution.
(6! The word "gross" has not been used in Section 304-
A IPC, yet it is settled that in criminal law negligence or
recklessness, to be so held, must be of such a high degree
as to be "gross". The expression "rash or negligent act"
35 apl85.17.odt
as occurring in Section 304-A /PC has to be read as
qualified by the word "grossly".
...."
(emphasis supplied)
4.6.Accordingly, from Jacob Matthew (supra), the
following relevant propositions of law emerge:
a.Negligence is the breach of a duty caused by the
omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate
the conduct of human affairs would do, or doing
something which a prudent and reasonable man would
not do. Actionable negligence consists in the neglect of
the use of ordinary care or skill towards a person to whom
the defendant owes the duty of observing ordinary care
and skill, by which neglect the plaintiff has suffered injury
to his person or property.
b.The jurisprudential concept of negligence differs in
civil and criminal law. What may be negligence in civil
law may not necessarily be negligence in criminal law.
For negligence to amount to an offence, the element of
mens rea must be shown to exist. For an act to amount to
criminal negligence, the degree of negligence should be
much higher i.e. gross or of a very high degree. Negligence
which is neither gross nor of a higher degree may provide
36 apl85.17.odt
a ground for action in civil law but cannot form the basis
for prosecution.
c. The essential ingredient of mens rea cannot be
excluded from consideration when the charge in a criminal
court consists of criminal negligence.
d. In order to hold the existence of criminal rashness
or criminal negligence it shall have to be found out that
the rashness was of such a degree as to amount to taking
a hazard knowing that the hazard was of such a degree
that injury was most likely imminent.
e. The element of criminality is introduced by the accused
having run the risk of doing such an act with recklessness
and indifference to the consequences.
f.Where negligence is an essential ingredient of the offence,
the negligence to be established by the prosecution must be
culpable or gross and not the negligence merely based upon
an error of judgment.
g.It is impossible to define culpable or criminal
negligence, and it is not possible to make the distinction
between actionable negligence and criminal negligence
intelligible, except by means of illustrations drawn from
actual judicial opinions.
h.The true position is that an error of judgment may, or
may not, be negligent; it depends on the nature of the error.
a. The word "gross" has not been used in Section 336, yet
it is settled that in criminal law negligence or recklessness,
to be so held, must be of such a high degree as to be
37 apl85.17.odt
"gross". The expression "rashly or negligently" as occurring
in Section 336 IPC has to be read as qualified by the word
"grossly".
4.7. In Alister Anthony Pareira v. State of
Maharashtra, (2012) 2 SCC 648, the Apex Court held :
"39. Like Section 304-A, Sections 279, 336, 337 and
338 /PC are attracted for only the negligent or rash act.
The scheme of Sections
279. 304-A, 336, 337 and
338 leaves no manner of doubt
that these offences
are punished because of the inherent danger of the
acts specified
therein irrespective of
knowledge or
intention to produce the result and irrespective of
the result. These sections make punishable the acts
themselves which are likely to cause death or injurv
to human life."
(emphasis supplied)
4.8. Accordingly, from Alister Anthony Pareira(supra), the
following relevant proposition of law emerges: The scheme
of Section 336 leaves no manner of doubt that the offence
is punished because of the inherent danger of the act
specified therein irrespective of knowledge or intention to
produce the result and irrespective of the result. The section
make punishable the acts themselves which are likely to
endanger human life or the personal safety of others.
38 apl85.17.odt
4.9. The justifiability of continuing with the prosecution
for the offence punishable under Section 336 of the Indian
Penal Code shall have to be tested on the touchstone of
the legal position set out by the Judgements cited Supra.
5. In essence, what is contended by the Investigating
Agency is that the alleged non-compliances of statutory
requirements are ipso-facto sufficient to make out an
offence under Section 336 of the IPC. Pertinently, it is
not alleged in the FIR, and indeed, is not even borne out
from the material collected during investigation, that
the VCA Stadium is structurally unsafe or is otherwise a
potential danger to human life or the personal safety of
others. On the contrary, the Nagpur Improvement Trust
("NIT") appears to have addressed a letter dated 2.9.2016
to the MPCB that upon site visit, it is revealed that the
construction done at the site is as per the plan approved by
then Planning Authority (Collector, Nagpur, on
recommendations of the Town Planning Department). NIT
has also filed an affidavit before the NGT in Application No.
33 of 2016 affirming that the construction of the VCA
stadium is in accordance with the approved plan. The
record further reveals that the structural stability evaluation
of the stadium was undertaken in 2008-09 and a detailed
visual inspection of structural elements was carried out on
9.1.2016 by the Civil Engineering Department of liT, Powai.
The expert opinion of IIT, Powai. The expert opinion of
39 apl85.17.odt
IIT, Powai is that the stadium structure is safe and stable
for occupation as per the prevalent Indian Codes considering
the quality of structural design, and the materials used for
the construction. IIT, Powai further asserts that the stadium
structure is well maintained and no signs of structural
degradation were noticed during the 9.1.2016 visual
inspection. Therefore, it can be assumed that there is no
reason to doubt that the stadium is structurally safe. It is
also not the case of the investigating agency that the stadium
is structurally unsafe.
5.1. The Investigating Agency however, contends that
the VCA Stadium does not have the building plan
sanctioned/approved by the Collector. The said contention
appears to be factually incorrect. The Investigating
Agency further contends that the VCA does not have either
Completion Certificate or the Occupancy Certificate under
Rule 12 of the OCR from the Collector, Nagpur.
5.2. It is not clear from the material collected during the
investigation as to which DCR are being referred to by the
Investigating Agency. It is indisputable that the Village Jamtha
was not within the jurisdiction of the NIT or the NMC till
31.08.2010 from which date NIT was constituted as the
Special Planning Authority for the Nagpur Metro Region.
Presumably, the reference in the investigation papers to Rule
12 of the OCR appears to be a reference to the D CR applicable
to Class B and C of Municipal Councils. Apparently, a
40 apl85.17.odt
decision was taken by the State Government in 1994 that
while granting development permission under Section 44 of
the MRTP Act, 1966, in rural areas which did not have a
development plan, the D CR for B and C Class Municipal
Council would be made applicable.
Rules 12 and 13 of the DCR read thus :
"12. Completion Certificate
12.1.Every person erecting a building, shall within
one month after completion of such building shall
give written notice to the Authority through the
qualified Architect/Engineer/Supervisor, regarding
completion of work prescribed in the permit in
the prescribed form given in Appendix E.
12.1.1.The provision of completion certificate shall
not apply to building construction work referred in
Bye-law No.4.1.2.
13. Occupancy Certificate
13.1. Within a period of thirty (30) days after
receipt of the notice of completion, the Authority
shall communicate in the prescribed form given in
Appendix F the requisite permission to occupy any
such building or to use any building or part
thereof effected by any such work.
41 apl85.17.odt
13.1.1.The provision of occupancy certificate shall
not apply to building construction work referred
in Bye-law No.; 4.1.2."
Authority is defined in Section 2.2 as:
"2.2 Authority- The Authority which has been
created by a statute and which for the purpose of
administering the bye-laws may authorize a
Committee or an official to act on its behalf;
hereinafter called the Authority."
It is extremely doubtful whether every provision of the
said OCR was intended to be made applicable in rural
areas, and whether the Collector would be an authority
within the meaning of Rule 2.2 or Rules 12 and 13 of the
said DCR.
The investigation papers reveal that there is no inquiry
made from the Collector, Nagpur as to whether, at the
relevant time, it was expected that Completion Certificate
or Occupancy Certificate should be obtained from the
Collector, Nagpur and whether the Collector has in fact
granted such Certificates to similarly situated
construction/projects in rural areas.
5.3. Even if it is assumed that the Occupancy Certificate or
Completion Certificate was required to be obtained from the
42 apl85.17.odt
Collector, Nagpur, the omission to do so can hardly be a rash
and negligent act attracting Section 336 of Indian Penal Code.
I may reiterate that there is no material to suggest even prima
facie that the construction is not stable or possess any danger
to human life or personal safety. The omission to obtain
Completion Certificate or Occupancy Certificate would not ipso
facto be a rash and negligent act within the meaning of
Section 336 of the Indian Penal Code.
5.4. It is alleged in the FIR that although Fire No Objection
Certificate showed the occupancy capacity 34,571, the VCA
sold approximately 43,000 tickets. A similar, allegation is
found in the Investigation Report. I have perused the
provisional No Objection Certificate dated 18.2.2014 issued by
the Director, Maharashtra Fire Services. I have also perused
the final No Objection Certificate dated 17.10.2015 and the
communication dated 3.2.2017 issued by the Director, Fire
Services which is to the effect that the occupancy load should
be read as 44694. It is true that the letter correcting the
occupancy load is post FIR and to that extent, no fault can be
found to the extent the FIR alleges that the VCA sold tickets
in excess of occupancy load. However, the question is whether
the prosecution should continue. In this context, the fact that
the highest statutory authority i.e. the Director, Fire Services
appointed under Section 18 of the Maharashtra Fire
Prevention and Life Safety Measures Act, 2006 ("Fire
Act") has clarified that occupancy load in the Fire NOC be
43 apl85.17.odt
read as 44,694 rules out the justifiability continuing with the
prosecution.
5.5. The only allegation in the FIR indicating the
irregularity in the Fire NOC is the load occupancy and the
allegation that the VCA sold tickets in excess of the load
capacity. The Investigation Report however, further alleges
that the VCA did not have valid fire NOC as it was not
issued by the Competent Authority and makes a reference to
letter dated 11.2.2017 issued by the Chief Fire Officer,
NMMC. The said letter is addressed by one Mr. Rajendra
Uchake to the ACP, Songaon Division, Nagpur and is
apparently issued in response to the queries of the
Investigating Agency. One of the answers of the Chief Fire
Officer is that the Director, Maharashtra Fire Services was not
competent to issue the final NOC dated 17.10.2015, is
quite strange. I have perused the Fire Act and the
Maharashtra Fire Prevention and Life Safety Measures
Rules, 2009 ("2009 Rules") framed thereunder. The record
reveals that, it is the case of the VCA that in addition to
the provisions and final NOC issued by the Director,
Maharashtra Fire Services, VCA already had certificates
issued by the License Authority twice a year in the months
of January and July as is envisaged under Rule 4 of the
2009 Rules. No attempt is made to make any inquiry much
less a detailed inquiry with the statutory authority under the
Fire Act vis-a-vis the statement of the Chief Fire Officer,
NMC. I must say that in view of the holistic reading of the
44 apl85.17.odt
Fire Act and the 2009 Rules, the investigation papers do
not conclusively establish that the Director, Maharashtra Fire
Services was not competent to issue the Fire NOC. Be that
as it may, in the teeth of the Fire NOC issued by the
highest statutory authority, it cannot be said that the office
bearers of the VCA acted with such rashness and negligence
as would make them criminally culpable.
5.6. Going beyond the FIR, the Investigation Report
alleges that consent to establish and consent to operate
from MPCB was not obtained. It is extremely doubtful
whether such consent to establish and consent to operate
was necessary in law. However, assuming that such consent
was/is a requirement, failure to obtain such consent can
hardly attract Section 336 of the Indian Penal Code. If
there is any violation of the Environment Act or any Rules
and Regulations framed thereunder, such violation may
attract penalty under the Environment Act or the rules. By
no stretch of imagination can the alleged transgression of
not obtaining the MPCB consent, be a rash and negligent act
with criminal culpability. Similarly, the alleged shortage of
parking space referred to in the Investigation Report (no
reference in FIR) is of no relevance. VCA contends that
ample parking space was/is available. Be that as it may, this
can hardly lead to an inference of the negligent act.
45 apl85.17.odt
5.7. Again going beyond FIR, the investigation report
alleges that the Environment Clearance Certificate was
mandatory and was not obtained. This contention is
against suspect and it is doubtful whether the
Environmental Clearance Certificate was necessary. I need
not dilate on the issue any further since assuming that
such certificate was necessary and was not obtained, the
same has no relevance whatsoever to the offence alleged.
5.8. I am of the respectful opinion that there is no
justification whatsoever in continuing with the prosecution
for the offences punishable under Section 336 of the Indian
Penal Code.
6. Whether there is any justification for continuing
the prosecution for offences punishable under Section
188 of the IPC and Sections 131(a) and 135 of the
Police Act?
6.1. The relevant provisions read thus:
"188. Disobedience to order duly promulgated by
public servant. - Whoever, knowing that, by an order
promulgated by a public servant lawfully empowered
to promulgate such order, he is directed to abstain
from a certain act, or to take certain order with certain
46 apl85.17.odt
property in his possession or under his management,
disobeys such direction, shall,
if such disobedience causes or tends to cause obstruction,
annoyance or injury, or risk of obstruction, annoyance
or injury, to any person lawfully employed, be punished
with simple imprisonment for a term which may extend
to one month or with fine which may extend to two
hundred rupees, or with both;
and if such disobedience causes or trends to cause danger
to human life, health or safety, or causes or tends to
cause a riot or affray, shall be punished with
imprisonment of either description for a term which
may extend to six months, or with fine which may
extend to one thousand rupees, or with both.
Explanation.-lt is not necessary that the offender
should intend to produce harm, or contemplate his
disobedience as likely to produce harm. It is sufficient
that he knows of the order which he disobeys, and that
his disobedience produces, or is likely to produce,
harm.
Illustration :
An order is promulgated by a public servant lawfully
empowered to promulgate such order, directing that a
religious procession shall not pass down a certain street.
47 apl85.17.odt
A knowingly disobeys the order, and thereby causes
danger of riot. A has committed the offence defined in
this section."
131. Penalty for contravening rules. etc., under Sec.
33. -Save as provided in Sec. 131-A, whoever-
(a) contravenes any rules or order made under Sec.
33 or any of the conditions of a licence issued under
such rule or order,
(b) abets the commission of any offence under Cl. (a)
shall, on conviction be punished-
(i) if the rule or order under which the said licence
was issued was made under Cls. (d), (g), (h), (i), sub-
clauses (i) and (ii) of Cl. (r) or C1. (u) of sub-section
(1) of Sec. 35, with imprisonment for a term, which
may extend to eight days or with fine which may
extend to fifty rupees or with both;
(ii) if the rule or order contravened was made
under Cl. (x) of sub-section (1) of Sec. 33, with
imprisonment for a term which may extend to three
months or with fine which may extend to five hundred
rupees or with both;
(iii) if the rule or order contravened or the rule or
order under which the said licence was issued was
48 apl85.17.odt
made under Cis. (n) and (o) of sub-section (1) of Sec.
33 with fine which may extend to two hundred rupees;
(iv) if the rule or order contravened was made
under Cl.(b) of sub-section (1) of Sec. 33 and prohibits
the sale or exposure for sale of any goods on any street
or portion thereof so as to cause obstruction to traffic
or inconvenience to the public- (a) for the first offence
with imprisonment for a term which may extend to one
month or with fine which may extend to two hundred
rupees or with both; and (b) for a subsequent offence
with imprisonment for a term which may extend to six
months and with fine which may extend to five
hundred rupees; and
'
(v) if the rule or order contravened or the rule or
order under which the said licence was issued 1 was
made under any clause of sub-section (1) of Sec. 33
and for the contravention of which no penalty is
provided under this section, with fine which may extend
to fifty rupees.
135. Penalty for contravention of rule or directions
under Sec. 37, 39 or 40. - Whoever disobeys an order
lawfully made from Sec. 37, 39 or 40 or abets the
disobedience thereof shall, on conviction, be punished,
(vi) if the order disobeyed or of which the
disobedience was abetted was made under sub-section
(1) of Sec. 37 or under Sec. 39, or Sec. 40, with
49 apl85.17.odt
imprisonment for a term which may extend to one
year but shall not except for reasons to be recorded
in writing, be less than four months and shall also be
liable to fine, and
(vii) if the said order was made under sub-section (2)
of Sec. 37 with imprisonment for a term which may
extend to one month or with fine which may extend to
one hundred rupees, and
(viii) if the said order was made under sub-section
(3) of Sec. 37, with fine which may extend to one
hundred rupees.
6.2. In support of the applicability of Section 188 of the
IPC, investigation report places reliance on the alleged
violation of the Orders referred to in Paragraph 3.6
supra. Similarly, Section 131(a) and 135 of the Police
Act are invoked on the allegation of violation of Orders
dated 24/1/2017 referred to in paragraph 3.6 supra.
Having perused the Order dated 24/1/2017 promulgated
under Section 37(1) and (3) of the Police Act, I have no
doubt that the said Order is of no relevance. Neither the
FIR nor the investigation report throws any light on how
the said Order is violated by the office bearers of the VCA.
I have also perused the Order dated 24/1/2017 issued
under Section 33(1) and 36 of the Police Act. One of the
reasons for promulgation of the said Order is the
maintenance of peace during the festival season and the
50 apl85.17.odt
cricket match. I do not see any violation of the said Order
by the office bearers of the VCA. Neither the FIR nor
the investigation report makes out a case of violation of
the said Order. In so far as non compliance of the
instructions of the collector in letter dated 20/1/2017 and
non-compliance of instructions of the commissioner
given vide letter dated 11/1/2017, no offence under
Section 188 is even prima facie made out. Firstly, it is
extremely doubtful whether the instructions or conditions
would be an order promulgated by a public servant and,
secondly, and more importantly, assuming there be any
breach, Section 188 would not be attracted unless it is
prima facie shown that the public servant promulgated
an order which he was lawfully empowered to do and
the said order was disobeyed which disobedience
resulted in the consequences referred to in Section 188. I
see absolutely no justification for continuing the
prosecution of offences under Sections 188 and Sections
131(a) and 135 of the Police Act.
Conclusion
7.I would strongly suggest that there is no justification for
continuing with the prosecution in relation to FIR/Crime
60/17 for offences punishable under Sections 188 and 336
of the IPC and Sections 131(a) and 135 of the Police Act.
51 apl85.17.odt
(ROHIT DEO)
Advocate General of Maharashtra"
26. We place on record our appreciation to the learned
Advocate General who has spent his valuable time and prepared the
elaborate report after considering the entire provisions and the law
laid down by the Apex Court.
27. Be that as it may, even independent of the report of the
learned Advocate General, we are of the considered opinion that the
Investigating agency has utterly failed to point out any material to
establish that there exists ingredients to constitute the offences
punishable under Sections 188, 336 of the Indian Penal Code and
Sections 131A and 135 of the Maharashtra Police Act. As discussed
by the learned Advocate General, there is no material to show that
the V.C.A. Stadium is structurally unsafe or is dangerous to human
life or the personal safety of others. On the contrary, the
communication addressed by the Nagpur Improvement Trust to the
Maharashtra Pollution Control Board would show that the
construction done at the site is as per the plan approved by the then
Planning Authority i.e. Collector, Nagpur on the recommendations of
the Town Planning Department.
52 apl85.17.odt
28. It appears that every attempt was made by the
Investigating agency to dig up material from whatever sources so as
to show that there exists some material for the offences for which the
F.I.R. is lodged. An information was sought from various Authorities
like the Nagpur Improvement Trust, the Maharashtra Pollution
Control Board, the Fire Department of Nagpur Municipal Corporation
etc. We find that the learned Advocate General has rightly
concluded that there was no justification of whatsoever nature in
continuing with the prosecution for the offence punishable under
Section 336 of the Indian Penal Code. We also find that the learned
Advocate General has also rightly found that there was no material
even to proceed with for the offences punishable under Sections
131A and 135 of the Maharashtra Police Act.
29. Insofar as the offence punishable under Section 188 of
the Indian Penal Code is concerned, reliance was sought to be placed
on the order issued under Section 37(1)(3) of the Maharashtra
Police Act. The learned Advocate General has specifically opined that
neither the F.I.R. nor the Investigating papers showed as to how the
order dt.24.1.2017 was disobeyed. The learned Advocate General
has further opined that one of the reasons for promulgation of the
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said order was maintenance of peace during festival season and the
Cricket match. The learned Advocate General has opined that there
was no violation of the said order by the Office Bearers of the
Vidarbha Cricket Association.
30. It could thus be seen that, even taking the F.I.R. at it's
face value, the ingredients constituting the offences for which the
F.I.R. is registered are not made out. We had given complete liberty
to the respondents/Authorities to investigate the matter. It appears
that the Investigating agency has fully utilised that liberty and has
made every attempt to dig up material so as to ensure that they are
in a position to show that there exists some material to connect the
applicants with the offences for which the F.I.R. is lodged. However,
even after thorough attempt is made to dig up material under the
garb of investigation, after placing entire material before the learned
Advocate General, the learned Advocate General has come to a
considered opinion that the material in no way connects the
applicants with the offences for which the F.I.R. is registered. We
make it clear that since the applicants have withdrawn the
allegations against the Police Officers, we do not propose to go into
the allegations initially made in the application that the F.I.R. is
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outcome of the incident that happened between 27.1.2017 to
29.1.2017.
31. Though the applicants have now withdrawn their
allegations that registration of the F.I.R. is an outcome of the dispute
that took place between the Office bearers of Association on one
hand and the Police Authority on the other hand; however, the
manner in which the matter has proceeded like lodging of the F.I.R.
immediately within a period of 48 hours from the time of the match
taking place, every attempt being made during investigation to dig
up material, so as to somehow show that some material exists to
connect the applicants with the offence for which the F.I.R. is
registered, the suggestion being given at the instance of respondents
to refer the matter to the learned Advocate General and thereafter
taking volte-face by not adhering to the opinion of the Advocate
General, in our view, atleast to some extent fortifies the
apprehension of the applicants.
32. However, one interesting fact cannot be ignored in the
present matter. One of the offences for which the applicants are
charged with is the offence punishable under Section 336 of the
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Indian Penal Code. It deals with the act which is done so rashly or
negligently so as to endanger human life or the personal safety of
others. From the perusal of the material placed on record, it appears
that, it is the view point of Police department that the Stadium is
constructed in such a rash and negligent manner, that it endangers
human life or personal safety of others. The applicants have placed
on record various photographs which are not denied by the
respondents. Some of the photographs show the Senior Officers of
the Police department sitting in various boxes of the Stadium viewing
the Cricket match. In one of the photographs, the Police Officers are
seen sitting in a Control Room. The photographs also show that
there are various T.V. Screens. However, the photographs would
show that all the viewers are looking in the front direction whereas
the Screens are at their back. We ask a question to ourselves as to
whether when the Stadium is of such a quality which would cause
danger to the human life, would the Police Officers sit conveniently
in such a large number in the said Stadium risking their lives. We
again ask a question to ourselves as to whether in the Control room
in the Stadium, the persons who are supposed to control the
activities are required to look at the CCTV Cameras or in the opposite
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directions. We need not elaborate much on the said aspect since the
applicants have themselves withdrawn their allegations.
33. Nodoubt that the scope of interference while quashing
the F.I.R. while exercising jurisdiction under Section 482 of the Code
of Criminal Procedure is very limited. Parameters have been laid
down by the Apex Court in the case of State of Haryana and Others
.vs. Ch. Bhajan Lal and Others reported in AIR 1992 SC 604. We
find that the present case would be squarely covered by clauses (1),
(2) and (5) of the parameters laid down by the Apex Court, which
read thus :
(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 constitute any offence or
make out a case against the accused;
(2) 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 investigation by police officers under Section
156(1) of the Code except under an order of a
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Magistrate within the purview of Section 155(2) of
the Code.
(3)..........
(4)..........
(5) 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.
34. In any case, the learned Advocate General on the
suggestions given by the respondents/Authorities themselves has
applied thorough mind to the entire investigating papers and has
come to the conclusion that leave aside the F.I.R. even the
investigation papers themselves do not point out any material to
connect the applicants with the offences for which the F.I.R. is
registered.
35. In that view of the matter, we are of the considered view
that continuation of the proceedings against the applicants would be
nothing else but an abuse of process of law. We find that the interest
of justice demands that the proceedings be quashed and set aside.
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Rule is, therefore, made absolute in terms of prayer clause (1) of
Criminal Application No.85 of 2017.
No order as to costs.
JUDGE JUDGE
jaiswal
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