Vijaykumar S/O Bapurao Katruwar ... vs The State Of Maharashtr And Anr
2017 Latest Caselaw 938 Bom

                                              1744.2016 Cri.Appln..odt
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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                  CRIMINAL APPLICATION NO.1744 OF 2016 


          1.       Vijaykumar s/o. Bapurao Katruwar,  
                   Age- 60 Years, Occu. Business,  
                   R/o. Godu Galli, Manwat,  
                   Tq. Manwat, Dist.Parbhani  

          2.       Balkisan s/o.Pannalal Chandak,  
                   Age: 60 years, Occu: Agril.  
                   R/o.Manwat, Tq.Manwat,  
                   Dist:Parbhani.  

          3.       Dr.Ashok s/o. Ballaya Chindurwar,  
                   Age-62 years, Occu. Service,  
                   R/o.Rachana Colony, Manwat,  
                   Tq. Manwat, Dist. Parbhani.  APPLICANTS
                                              [Orig.Accused]
                        VERSUS

          1.       The State of Maharashtra 
                   Through its P.I. Police Station,  
                   Manwat, Tq.Manwat, Dist. Parbhani 

          2.       Munja s/o. Bhagwanrao Fund,  
                   Age: Major, Occu: Agril., 
                   R/o. Naralad, Manwat,  
                   Tq. Manwat, Dist. Parbhani   RESPONDENTS
                                           [Respondent No.2
                                           Orig.complainant]

                               ...
          Mr.R.R.Chandak, Advocate for the applicants 
          Mr.D.R.Kale, APP for Respondent no.1/State
          Mr.R.J.Nirmal, Advocate for respondent no.2.
                               ...




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                                                    1744.2016 Cri.Appln..odt
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                          CORAM:  S.S.SHINDE & 
                                  K.K.SONAWANE,JJ.     

Reserved on : 20.03.2017 Pronounced on : 22.03.2017

JUDGMENT: (Per S.S.Shinde, J.):

1. This Application is filed for

quashing and setting aside the First

Information Report bearing Crime No.32/2016

registered with Manwat Police Station,

Manwat, District Parbhani, for the offence

punishable under Section 304 [A] of the

Indian Penal Code to the extent of

applicants.

2. The learned counsel appearing for

the applicants submits that by Resolution

Nos.7 and 8 passed in the meeting dated 24th

June, 2014, the management of the institution

decided to appoint a Security Guard and to

affix a channel gate on the entrance of the

College, and accordingly, the said Resolution

was acted upon. It is submitted that on 13th

1744.2016 Cri.Appln..odt

February, 2016, the final matches of 'Kho-

kho' were being conducted in the college

premises, so many people/students were

present in the College to watch/see the said

sports competition. The children, residing in

the adjoining area of College, were playing

on the ground near the channel gate. The

security guard on duty warned those children

not to play with the channel gate. He submits

that, the security guard went for round as

there was huge crowed in the college campus

for watching the competition. On 13th

February, 2016, at 1.30 p.m. unfortunately an

unexpected events happened, and two boys

namely, Govind and Tanmay, who were playing

with the channel gate got injured due to

collapse of channel gate. After getting the

knowledge of the said incident, the Vice-

Principal of the College went to the spot,

and immediately admitted those children in

the Civil Hospital, Manwat. During treatment,

1744.2016 Cri.Appln..odt

one child namely Govind died at Civil

Hospital, Manwat, and his brother namely

Tanmay also died subsequently.

3. It is submitted that applicant nos.1

to 3 have taken every care to provide medical

treatment and A.D. No.4/2016, was registered

with Manwat Police Station at 3.30 p.m. by

the Vice Principal of the College. It is

submitted that the parents of the deceased

told the applicants that it was an accident

and they have no grievance regarding the said

incident. However, after 3-4 hours, the

political workers belonging to Shiv Sena

Party started protest against the institution

and compelled the father of deceased to lodge

the FIR against the management. It is

submitted that, the registration of FIR is an

outcome of the public protest and there is no

truthfulness in the allegation in the FIR.

It is submitted that when the A.D. was

registered, there was no question of

1744.2016 Cri.Appln..odt

registration of FIR, that too, under the

pressure of other persons, who are not

concerned with an alleged incident. It is

submitted that even if the allegations in the

FIR are taken into consideration, it can be

stated that the allegation would show the

incident is outcome of an accident. The

ingredients of Section 304 [A] of the IPC are

not attracted at all. For establishing the

alleged commission of offence punishable

under Section 304 [A] of the IPC, there has

to be rash and negligent act, which resulted

into or which causes death of any person.

In the present case, upon reading the

allegation in the FIR, it cannot be said that

the applicants have committed any rash and

negligent act, which is culpable under the

penal law so as to attract the offence

punishable under Section 304 [A] of the IPC.

4. It is further submitted that the

erection of the gate is a skilled work and

1744.2016 Cri.Appln..odt

the applicants do not possess such skill.

The said work has been carried out by the

independent agency having knowledge and skill

regarding erection of gate. It is submitted

that 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 a ground for action

in civil law but cannot form the basis for

prosecution. The word 'gross' has not been

used in Section 304-A of the 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

1744.2016 Cri.Appln..odt

expression 'rash or negligent act' as

occurring in Section 304-A of the IPC has to

be read as qualified by the word 'grossly'.

In the present case, there was no any such

rash or negligent act of the applicants for

causing such incident. Therefore, the present

FIR deserves to be quashed and set aside.

5. It is further submitted that

considering the allegation made in the FIR

and the law laid down by the Hon'ble Apex

Court in the case of Rakesh Ranjan Gupta Vs.

State of U.P.1, this is a fit case in which

powers under Section 482 of the Code of

Criminal Procedure ought to be exercised, by

this Court. In view of Panjab National Bank

Vs. Surendra Prasad2 that judicial process

should not be an instrument of oppression or

needless harassment. At that stage, the Court

would circumspect and judicious in exercise

discretion and should take all the relevant 1 AIR 1999 SC 2115 2 1993 Supp [1] SCC 499

1744.2016 Cri.Appln..odt

fact and circumstances into consideration

before issuing process least it would be an

instrument in the hands of the private

complainant as vendetta to harass the persons

needlessly. Vindication of majesty of justice

and maintenance of law and order in the

society are the prime objects of criminal

justice but it would not be the means to

wreak personal vengeance. Considering from

any angle, it is clear that respondent has

abuse the process of law and laid complaint

against the applicants without any prima

facie case of harass them from vendatta. In

such circumstances, the FIR is liable to be

quashed and set aside.

6. In the present case, the chances of

an ultimate conviction is bleak and therefore

no useful purpose is likely to be served by

allowing the criminal prosecution to

continue. In such circumstances to prevent

the abuse of process of law, it is necessary

1744.2016 Cri.Appln..odt

that this Court must exercise its extra

ordinary jurisdiction under Section 482 of

the Criminal Procedure Code for quashing the

FIR, registered at Police Station, Manwat,

District Parbhani. The learned counsel

appearing for the applicants placed reliance

on the ratio laid in the cases of Pundlik

Tanbaji Nikhare Vs. State of Maharashtra3 and

Jacob Mathew Vs. State of Punjab and Anr.4.

Therefore, the learned counsel appearing for

the applicants submits that the application

deserves to be allowed.

7. On the other hand, the learned APP

appearing for respondent - State relying upon

the investigation papers, and also an

allegations in the FIR submits that the

statements of the witnesses have been

recorded and it is stated by them that

applicants are responsible for the death of

the two innocent children. It is submitted 3 2011 ALL MR [Cri.] 2847 4 AIR 2005 SC 3180

1744.2016 Cri.Appln..odt

that the investigation is in progress,

therefore, this Court may not entertain the

prayer for quashing the FIR.

8. The learned counsel appearing for

the respondent no.2 - informant submits that,

his both sons died. An erection of the gate

was in the year 2014. As revealed during the

investigation that it was responsibility of

the applicants to take every care so as to

have proper and well-constructed gate so as

to avoid every possibility of an untoward

incident, which would cause harm to the

health of the students or employees working

in the College. He invites our attention to

the judgment of the Supreme Court in the case

of Mohanan Vs. Prabha G. Nair5, and submits

that the Supreme Court has taken a view that

quashing the complaint at the threshold

especially where the culpability could be

established only on proper analysis of the

5 2004 [3] SCC 391

1744.2016 Cri.Appln..odt

expert evidence that may be adduced by the

complainant, it was not proper on the part of

the Magistrate to quash the complaint.

9. We have given careful consideration

to the submissions of the learned counsel

appearing for the applicants, learned APP

appearing for the respondent - State and

learned counsel appearing for respondent no.2

- informant. With their able assistance, we

have carefully perused the averments and

grounds taken in the application, annexures

thereto, allegations in the FIR, and the

reply filed by respondent no.2, and also the

investigation papers. Upon careful perusal of

the investigation papers, the witnesses have

stated that when the Govind and Tanmay @

Hanuman were near the gate, suddenly, said

get collapsed on those children and as a

result of it, those children shouted loudly

and then the people gathered. If the

statement is carefully perused, prima facie,

1744.2016 Cri.Appln..odt

it appears that those boys were came nearby

the gate and then said get collapsed.

Admittedly, the present applicants are office

bearers of the said institution / college.

Keeping in view the exposition of law by the

Supreme Court in the case of Mohanan [cited

supra], we are of the opinion that when the

investigation is in progress, it is not

desirable to quash the FIR. In case the FIR

is quashed, it may not be possible for the

Investigating Officer to establish the

culpability unless there is further

investigation and proper analysis of the

expert evidence that may be adduced by the

informant.

10. In that view of the matter, we do

not wish to elaborate the reasons on merits

of the investigation, which is in progress.

Hence, application for quashing of FIR stands

rejected. We clarify that this order will not

preclude the applicants from applying for

1744.2016 Cri.Appln..odt

discharge in the event of filing of the

charge sheet by the Investigating Officer.

11. Criminal Application No.686 of 2017

does not survive, and hence the same stands

disposed of accordingly.

              [K.K.SONAWANE]            [S.S.SHINDE]
                  JUDGE                    JUDGE  


          .                After pronouncement of the Judgment, 

the prayer is made by the learned counsel

appearing for the applicants to continue the

ad-interim relief, which was in force during

the pendency of the application. The prayer

is seriously opposed by the learned APP

appearing for respondent no.1 - State, and

the learned counsel appearing for respondent

no.2.

. Since we have rejected the

application, there is no question of

continuing ad-interim relief any further.

1744.2016 Cri.Appln..odt

Hence, the prayer to continue ad-interim

relief, which was in force during pendency of

this application, stands rejected.

              [K.K.SONAWANE]            [S.S.SHINDE]
                  JUDGE                    JUDGE 

          DDC