Bombay High Court
Payoj S/O Jagdish Pande vs The State Of Maharashtra Thr. Pso Ps ... on 21 January, 2025
2025:BHC-NAG:813
J.46.revn.63.24.odt 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO.63 OF 2024
Payoj s/o Jagdish Pande,
Aged 57 years, Occupation - Service,
R/o Plot No.218, Nirmal Ganga
Building, Nandanvan main road,
Nagpur, District Nagpur
...APPLICANT
VERSUS
State of Maharashtra,
through Police Station Officer,
Police Station Mukutban,
District Yavatmal
...NON-APPLICANT
_______________________________________________________
Mr. R.R. Vyas, Advocate for the applicant.
Ms R.V. Sharma, APP for the State.
_______________________________________________________
CORAM : URMILA JOSHI-PHALKE, J.
DATED : JANUARY 21, 2025.
ORAL JUDGMENT :
ADMIT. Heard finally with the consent of learned Counsel
for the parties.
2. By this application, the applicant is seeking quashing and
setting aside of the order passed by the Additional Sessions Judge-2,
Kelapur in Sessions trial No.32/2017 dated 09/01/2024 below Exhibit-
12 which was filed for discharge under Section 227 of the Cr.P.C.
3. As per the contention of the applicant, on the basis of the
information supplied by one Shobha Mashakhetri with non-applicant-
police station, the FIR vide Crime No.170/2016 dated 04/12/2016 was
registered for the offence punishable under Section 304 read with
Section 34 of IPC against five persons.
4. The applicant is shown as an accused No.1 in the said FIR.
After completion of the investigation, the charge-sheet was submitted. As
per the allegations in the FIR that the son of the applicant Rahul @ Golu
Mashakhetri was installing the double pole structure which is commonly
called as DP. in the house of one Pachbhai at Adegaon Shivar on
30/11/2016. The accused persons did not disconnect the electricity
supply and due to the electric current said Rahul died on the spot due to
the electrocution. At the relevant time, the present applicant was
working as an Assistant Engineer with the Maharashtra State Electricity
Distribution Company Limited at distribution centre, Mukutban. The said
distribution centre comes under sub division, Zari Jamani, District
Yavatmal which was headed by Deputy Executive Engineer by name Mr.
Pawde. The said area was under the Pandharkawda division and the
Executive Engineer was Mr Kondawar, which was headed by him. The
complainant who is the mother of the deceased Rahul has alleged that
the applicant being the Assistant Engineer was not present at the spot
where her son was installing the DP and he has engaged himself with
the contractor though he was not having knowledge of the electrical
works, and therefore, due to the negligence on the part of the present
applicant and other co-accused the death of her son was caused.
5. After completion of the investigation the charge-sheet was
filed and present applicant has filed an application for discharge which
came to be rejected by the Additional Sessions Judge on the ground that
Section 228 requires to Judge to frame charge if he consider that there is
ground for presuming that the accused has committed the offence. He
further observed that considering the ratio laid down by the Hon'ble
Apex Court as cited above and considering the allegation despite the
knowledge, the present applicant remained absent and the death of the
deceased is caused due to the negligence of the co-accused. It was the
duty of the present applicant to remain present at the spot while
installing the said transformer. Without intimating the superior officer,
he remained absent and thus, due to his negligence, the death of the
deceased is caused.
6. Learned Counsel for the applicant submitted that except the
allegations made that it was the duty of the present applicant to remain
present at the time of at the time of installing the transformer, no other
documents are collected by the investigating agency to show that it was
the present applicant under whose supervision that transformer is to be
installed. He submitted that as far as the documents are concerned
which shows that on the day of the incident, the applicant remained
absent as he was on a leave, therefore, no vicarious liability can be
attributed against him. As far as the statements of the witnesses are
concerned which are not sufficient to show the involvement of the
present applicant in the alleged offence as far as the negligence is
concerned. He has invited my attention toward the various statements of
the witnesses as well as the communication and submitted that none of
the communication shows that the presence of the present applicant was
required at the time of installing the transformer. He stated that even the
statements of the witnesses shows that it was the co-accused - Umesh
Khobre who has not disconnected the electrical line and asked the
deceased to step on the pole and due to his negligence the alleged
incident has taken place. A general statement is made by the witnesses
against the present applicant that it was his duty to remain present at
the relevant time; however, the official communication nowhere states
that it was the duty of the present applicant to remain present. He
submitted that overall supervision was to be done by the present
applicant but it was not intimated to him that on the day of incident i.e.
on 30/11/2016 that transformer is to be installed. Thus, considering that
even no prima facie case is made out to frame the charge against the
present applicant, he be discharged. He submitted that learned Sessions
Court has not considered the same and rejected the application
erroneously and wrongly.
7. Learned APP strongly opposed the application on the
ground that the complainant namely Shobha who is the mother of the
deceased lodged report stating therein that her son deceased Rahul
Mashakhetri used to attend the work along with accused No.3 and was
doing the labour work. On 30/11/2016 he went to the field of accused
No.5 where the work of accused No.3 and 4 of installation of electric DP
was going on. On the same day the deceased came to house and after
having lunch again went to the spot where electric DP was being
installed. In the evening when deceased did not return home, she and
other members of the family started enquiring and in the evening they
came to know that the deceased died in a hospital due to electric shock.
It is further alleged that initially merg was registered. During
investigation, it revealed that the co-accused Khobre has not
disconnected the line and due to his negligence, the death of the
deceased was caused. She submitted that the statement of all the
witnesses as well as the statement of the officials of MSEDCL also shows
that overall supervision was of the present applicant and without
intimating anybody he remained absent and went on leave. Thus, the
applicant has not performed his duty with utmost care and death of the
deceased is caused in the said incident.
8. I have heard learned Counsel for both the sides. Perused the
investigation papers from which it reveals that the crime is registered on
the basis of the report lodged by the mother of the deceased. There is no
dispute as to the fact that when the deceased stepped on the pole for the
installation of DP he got electric current and his death was caused due to
the electrocution. It is also not a disputed fact that at the relevant time
the another co-accused Umesh Khobre was along with the deceased. It
further reveals from the investigation papers that it was the Executive
Engineer had given the contract of installing the transformer to the
Shivkrupa electricals owned by contractor Shri Shrikant Thakare. The
statements of the witnesses further shows that said contractor has sent
the deceased and one more labour Dattatraya Pal for installing the said
transformer. The statement of one Sainath Kisan Matte shows that he has
enquired with said Dattatraya Pal whether he has disconnected the line
while installing the transformer, at the relevant time, said Dattatraya Pal
replied that he has disconnected the same. Subsequently, the deceased
who was on the pole has got the electric shock and his death was caused
due to the electrocution. It further reveals from the investigation papers
that it was the Executive Engineer who has extended the contract of that
Shivkrupa Electricals, Wani orally though his written agreement period
was over. It is submitted by the learned Counsel that said Executive
Engineer was not made an accused in the present prosecution.
9. Learned Counsel also invited my attention towards various
statements of the witnesses as well as the communications and
submitted that none of the communication shows that while installing
the transformer the presence of the present applicant was required or he
was informed either by the co-accused or any other person that he shall
remain present at the time of installation of the said transformer as his
presence was required. It is a matter of the document that on the
relevant day the applicant was on leave. He is punished for going on
leave without intimating to the office. Thus, it is crystal clear from the
investigation papers that on the day of the incident the applicant was not
present at the spot of incident. It is settled position of law that at the
stage of considering an application for discharge, the court must proceed
on an assumption that that the material which has been brought on the
record by the prosecution is true and evaluate the material in order to
determine whether the facts emerging from the material, taken on its
face value, disclose the existence of the ingredients necessary of the
offence alleged. It is further settled principle of law that at the stage of
consideration of an application for discharge, the court has to proceed
with an assumption that the materials brought on record by the
prosecution are true and evaluate the said materials in order to
determine whether the facts emerging from the material taken at their
face value disclose the existence of all the ingredients constituting the
alleged offence. The Hon'ble Apex Court in the case of State of Tamil
Nadu Tr. Insp. of Police Vs. N. Suresh Rajan & ors. [2014 (11) SCC 709]
adverting to the earlier prepositions of law laid down on this subject as
under:
"We have bestowed our consideration to the rival
submissions and the submissions made by Mr. Ranjit
Kumar commend us. True it is that at the time of
consideration of the applications for discharge, the
court cannot act as a mouthpiece of the prosecution or
act as a post-office and may sift evidence in order to
find out whether or not the allegations made are
groundless so as to pass an order of discharge. It is
trite that at the stage of consideration of an application
for discharge, the court has to proceed with an
assumption that the materials brought on record by the
prosecution are true and evaluate the said materials
and documents with a view to find out whether the
facts emerging therefrom taken at their face value
disclose the existence of all the ingredients constituting
the alleged offence. At this stage, probative value of
the materials has to be gone into and the court is not
expected to go deep into the matter and hold that the
materials would not warrant a conviction. In our
opinion, what needs to be considered is whether there
is a ground for presuming that the offence has been
committed and not whether a ground for convicting
the accused has been made out. To put it differently, if
the court thinks that the accused might have
committed the offence on the basis of the materials on
record on its probative value, it can frame the charge;
though for conviction, the court has to come to the
conclusion that the accused has committed the offence.
The law does not permit a mini trial at this stage."
10. It is also settled law that the defence of the accused is not to
be looked into at the stage when the accused seeks to be discharged. The
defence of the accused is not to be looked into at the stage when the
accused seeks to be discharged. The expression "the record of the case"
used in Section 227 Cr.P.C. is to be understood as the documents and
articles, if any, produced by the prosecution. The Code does not give any
right to the accused to produce any document at the stage of framing of
the charge. The primary consideration at the stage of framing of charge
is the test of existence of a prima facie case, and at this stage, the
probative value of materials on record need not be gone into. This Court
by referring to its earlier decisions in the State of Maharashtra Vs. Som
Nath Thapa (1996) 4 SCC 659 and the State of MP Vs. Mohan Lal Soni
(2000) 6 SCC 338 has held the nature of evaluation to be made by the
court at the stage of framing of the charge is to test the existence of
prima-facie case. It is also held at the stage of framing of charge, the
court has to form a presumptive opinion to the existence of factual
ingredients constituting the offence alleged and it is not expected to go
deep into probative value of the material on record and to check
whether the material on record would certainly lead to conviction at the
conclusion of trial.
11. After having weighted the evidence on record which is
produced in the nature of the charge-sheet and the various charges
communication, it is seen that the charges levelled against the present
applicant that he was negligent and was having knowledge, then also he
remained absent and caused the death of the deceased. As far as the
investigation material is concerned which shows that the presence of the
applicant was not stated any of the witnesses. The communication on
record also nowhere shows that the present applicant at any point of
time was informed that the said installation of the DP work is to be
carried out on the day of incident i.e. on 30/11/2016. The record shows
that on the day of the incident, he was on leave. Only allegation against
him is that he proceeded on leave without intimating the superior officer
and for that purpose he is already punished. As far as the negligence
regarding the continuing the electric supply when the work of
installation of transformer was in progress, admittedly the present
applicant was not present. The communication on record also nowhere
shows that his presence was required at the time of installing the said
transformer. Thus, at this stage, there is nothing on record to show that
his presence was required for the purpose of installation of the
transformer and at the relevant time intentionally he remained absent,
and therefore, the alleged incident has taken place. Thus, considering
the material which is brought on record by the prosecution to frame the
charge is not sufficient even for the framing of the charge, and therefore,
the order passed by the Additional Sessions Judge, Kelapur is liable to be
quashed and set aside. In view of that, I proceed to pass the following
order :
(i) The revision application is allowed.
(ii) The order passed by the Additional Sessions
Judge-2, Kelapur in Sessions trial No.32/2017
dated 09/01/2024 is hereby quashed and set aside.
(iii) The applicant - Payoj s/o Jagdish Pande is
hereby discharged from the offence punishable
under Section 304 read with Section 34 of the
Indian Penal Code registered at police station
Mukutban, District Yavatmal vide Crime
No.170/2016.
12. The application is disposed of.
(URMILA JOSHI-PHALKE, J.)
*Divya
