Rajneesh Kler & Others vs State
2009 Latest Caselaw 281 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

              CRL.M.C. 1941/2008 & CRL.MA 7041/2008

       RAJNEESH KLER & ORS.               ..... Petitioners
                    Through Mr. Ramesh Gupta with
                    Mr. Sumit Arora &
                    Mr. Sulaiman Khan, Advocates

                        versus


       STATE                                            ..... Respondent
                                 Through Mr. Jaideep Malik, APP.

       CORAM:
       HON'BLE DR. JUSTICE S. MURALIDHAR

        1. Whether Reporters of local papers may be
           allowed to see the order?                                  No
       2. To be referred to the Reporter or not?                      Yes
       3. Whether the order should be reported in Digest?             Yes


                                       ORDER

28.01.2009

1. This petition under Section 482 of the Code of Criminal Procedure,

1973 (CrPC) seeks the quashing of FIR No. 153 of 2007 under Section

285/304-A/34 IPC registered at Police Station R.K. Puram and all

proceedings consequent thereto. It also questions the charge sheet dated

27th August 2007 filed by the respondent in the matter.

2. The facts leading to the filing of this petition are that on 8th March

2007 an information was recorded at Nanakpura, PS R.K. Puram, New

Delhi at 5.30 pm through telephone that in a cultural programme

organized at the Moti Lal Nehru College, a boy who was demonstrating a

performance "fire from mouth" on stage had suffered burns consequent

upon his cloth getting fire. On receiving this information, SI Mahabir

Prasad reached the College and found that some portion of the carpet on

the stage and on the rear side of the stage burnt shoes and clothes of the

person who had got injured were found. On reaching the Safdarjung

Hospital the SI found that the injured Prithvi s/o Tribhuvan aged 22 years

had been admitted. The doctor on duty had opined that the injured was

unfit to make a statement. SI gathered information about the incident

from the college students present at the hospital and from other people

present on the spot. The accident had happened when the injured was

performing a dangerous stunt of filling his mouth with oil and throwing it

on a burning fire torch due to which his clothes caught fire and he

received injuries. The allegation was that the organizers of the

programme had been negligent in not making sufficient arrangements for

extinguishing the fire. On this basis an FIR under Section 285/338/34

IPC was registered.

3. On 10th March 2007 the injured Prithvi Narain Mishra succumbed to

his injuries and his body was handed over, after post-mortem to his

relatives. The offence was converted from Section 338 to 304A IPC.

4. It appears that while the investigation was in progress, a letter was sent

by one Dr. V.S. Deshpandey to the Additional Chief Metropolitan

Magistrate (ACMM), Patiala House Courts, New Delhi for taking

cognizance of the offences under Section 304-A/201 read with 120-B

IPC. The learned ACMM summoned the SHO Police Station R.K.

Puram along with a preliminary report. The status report was filed on

20th July 2007 before the ACMM. In the said status report the police

informed the learned ACMM as follows:-

"The teachers and students told that on 8.03.07 one artist Mr. Jasmeet Joshely was invited. He had to come at 5.00 PM but he became late. The principal also corroborated the above version in writing. To keep the gathering of the students near the stage, the anchors Ms. Kastoori & Mr. Avninash who were on the stage, announced that as per directions of cultural convener, the students who wants to show their art could come on the stage one after another. The injured also got noted his name and started to do the fire stunt.

The principal in a reply of notice u/s 91 Cr. PC categorically mentioned that the students advisory committee and cultural committee were to organize and supervise the programme of dated 8.03.07. These committees have been constituted for the specific purpose of organizing cultural programme as well as to supervise the function. There are four members in the student advisory committee and five members in the cultural committee. One member Sh. Rajneesh Kler is common in both the committees.

During investigation the IO got recorded the statement of witnesses and Sh. Rajnessh Kler was arrested on 28.04.07 and released on bail on the same day. Dr. Reeta Kakar, the convener of the cultural committee was also arrested on 02.07.07 and at the same time she was released on bail."

5. The allegations contained in the letter of Dr. V.S. Deshpandey were

found unsubstantiated and an explanation was given by the police in its

aforementioned status report filed to that effect.

6. Subsequently on 11.9.2007 the SHO R.K. Puram sought legal opinion

of the Chief Prosecutor on the following issues:-

"1. Whether for the omission to prevent the said fire stunt on the stage the cultural committee and student advisory committee comes in the preview of definition of negligence or not?

2. Whether in the above-mentioned circumstances any criminal liabilities of members of the above said both the committees arise or not?

3. Whether in the above mentioned circumstances all the members of cultural committee & student advisory committee are liable for the above said lapses/negligence or not?

4. Whether the principal being head of the institution is liable for any negligent act in the above said case or not?"

7. In response thereto, the learned Chief Prosecutor opined that "it is a

matter of investigation as who is liable for the act of omission or

negligence, on the basis of investigation and evidence collected the

criminal liability are to be ascertained. No law point is involved. The

investigations are at its midways."

8. The aforementioned opinion was rendered on 17th August 2007

following which on 27th August 2007 the charge sheet was filed. The

charge sheet, a copy of which is placed on record, only states that certain

statements under Section 161 CrPC were recorded and then it proceeds to

state as under:-

"As per the investigation and as per the available evidence in the case Rajneesh Kler s/o Shri Harjeet Kler and Rita Kakkar w/o Shri V.N. Kakkar were arrested in the case and were released on police bail as the offences were bailable.

After that S.I. tried to join the other members of Cultural Committee and Student Advisory Committee in the investigation and tried to interrogate them but due to objections/resistance from the staff members further investigation/arrest could not be done. Thereafter S.I. sent the seized exhibits of the case for opinion to FSL but the FSL Authorities did not accept the exhibits due to heavy pendency and shortage of staff. The same were again deposited in the malkhana by the S.I. Thereafter further investigation was handed over to S.I. Virender Prakash. During investigation SI Virender Prakash tried to join the remaining members of Cultural Committee and Student Advisory Committee in further investigation and interrogation but remained unsuccessful due to the opposition and adverse circumstances. S.I. issued notice and received the relevant information and attached the same with the file. The eye witness of the case namely Kasturi Sharma was examined and her statement was recorded. As per the investigation sufficient evidence had come against (1) Rajneesh Kler, (2) Dr. Rita Kakkar, (3) Brij Kishore, (4) Prahlad Kumar Bairwa, (5) Bishnu Charan Nag, (6) Ms. Swagata Roy, (7) Ms. Priya Bhalla & (8) Dr. Anjali Agarwal for presenting a charge sheet under section 285/304-A/34 of Indian Penal Code."

9. In the charge sheet it is stated that accused Nos. 3 to 8 (who are

petitioners 3 to 8 herein) were not arrested in view of the student union

elections and law and order situation but that they were working at the

Moti Lal Nehru College at the relevant time.

10. I have heard the submissions of Mr. Ramesh Gupta, the learned

counsel for the petitioners and Mr. Jaideep Malik, the learned APP for

the State.

11. Mr. Gupta submits that the petitioners are sought to be roped in only

on the basis of the statements recorded of one Ms. Kasturi Sharma and

one Mr. Subhash C. Sharma. Their statements were recorded on 19th

August 2007 and 24th August 2007 respectively, i.e., more than 5 months

after the incident. In the said statements there is nothing to indicate that

any of the petitioners were in any manner responsible for the accident

that took place. In particular he submits that there is no evidence to show

that accidental death of the deceased took place on account of any rash

and negligent act of any of the petitioners. Relying on the judgment of

the Supreme Court in Jacob Mathew v. State of Punjab 2005 CRI. L.J.

3710, he submits that the ingredients of offence under Section 304A IPC

are not even prima facie made out in the instant case. He submits that the

accident happened on account of the deceased performing an act on his

own and since the performance itself was not scheduled, the question of

any of the petitioners making advance preparations to prevent such an

accident or take precautions did not arise. He adds that the petitioner No.

3 Brij Kishore who was not even present at the college at the time of the

incident.

12. In addition to the above submissions, reliance is placed by learned

counsel for the petitioners on the decisions in Kurban Hussein

Mohamedalli Rangawalla v. State of Maharashtra 1965 (2) Cr. L.J.

550; Naresh Giri v. State of M.P. 2007 [4] JCC 3285 and the judgments

of this Court in M. Shafi Goroo v. State 2000 II AD (Cr.) DHC 225 and

Dr. G.S. Chandrakar v. State 2008 [1] JCC 209.

13. In response to the specific query raised by the court, the learned APP

is unable to categorically state that any of the present petitioners were

liable for the offences for which they have been charged.

14. There are two aspects of the present case. One is whether any of

these petitioners could at all be said to have acted rashly or negligently to

attract the offence under Section 304A IPC. The second is whether they

had acted negligently "with respect to fire or combustible matter" to

attract the offence under Section 285 read with 34 IPC.

15. It is seen that as far as petitioners 1 and 2 are concerned, they were

members of the organizing committee of the cultural event and the

particular event which resulted in the accidental death was not even

scheduled. Consequently, they cannot be visited with any criminal

liability in the manner suggested by the prosecution. Their mere presence

at the event cannot straightway attract the offence under Section 285 or

304A IPC. Either some overt act or some illegal omission within the

definition of Sections 32 read with 33 of the IPC should be attributed to

them. Nothing in the charge sheet even suggests such culpability on the

part of the petitioners 1 and 2. Mr. Malik, the learned APP was also

unable to counter the submission regarding the petitioners 3 to 8 being

criminally liable. If they are sought to be roped in because of their mere

presence at the programme, as suggested from the statements of Ms.

Kasturi Sharma and Mr. S.C. Sharma, then that could hardly suffice for

maintaining the criminal case against these petitioners for the offences

aforementioned.

16. In Sumitra Banik v. State of W.B. (1999) 9 SCC 24 it has been held

in the context of the offence under Section 304 read with 34 IPC that

(SCC @ p.27) ".....mere presence of these persons near the place of the

incident cannot lead to an inference that they shared the common

intention with the other two accused as they were also residing in that

house."

17. The Supreme Court has in Kurban Hussein Mohamedalli

Rangawalla held as under (Cr.L.J. @ p.551):

"The mere fact that the appellant allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it might be a negligent act, would not be enough to make the appellant responsible for the fire which broke out. The cause of the fire was not merely

the presence of burners in the room in which varnish and turpentine were stored, though this circumstance was indirectly responsible for the fire which broke out. But what S. 304-A requires is causing of death by doing any rash or negligent act, and this means that death must be direct or proximate result of the rash or negligent act."

18. Further in same judgment in Kurban Hussein Mohamedalli

Rangawalla, the question which was framed by the Supreme Court in the

context of the offence under S. 285 IPC reads as under(Cr.L.J. @ p.552):

"The question is whether the appellant on the facts which have been proved knowingly or negligently omitted to take such order with fire or combustible matter in his possession as was sufficient to guard against probable danger to human life from such fire or combustible matter."

19. In the considered view of this Court on a perusal of the charge sheet

there is absolutely no material to even prima facie show that the death

which occurred in the present case was as a result of any rash and

negligent act on behalf of any of the petitioners or that it was the direct or

proximate result of any rash and negligent act. Likewise, there is nothing

to even prima facie show that the petitioners failed to take any steps in

order to guard against the possible danger to human life from such fire or

combustible matter.

20. In Ambalal D. Bhatt v. The State of Gujarat 1972 SCC (Cri.) 618 it

explained by the Supreme Court that the question that has to be

determined in the context of an offence under S. 304 is ([email protected] p. 625):

"whether the appellant's act is causa causans or has there been a cause interveniens which has broken the chain of causation so as to make his act, though a negligent one, not the immediate cause or whether it amounts to an act of gross negligence or recklessly negligent conduct."

21. In Naresh Giri it was further held (JCC @ p. 3287):

"Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other. The death so caused is not the determining factor."

22. When examined in light of the law as explained hereinabove, this

Court is unable to sustain the criminal proceedings against the petitioners

for the offences under Section 285/304A read with 34 IPC. Accordingly,

insofar as these petitioners are concerned, the FIR No. 153 of 2007 under

Section 285/304-A/34 IPC registered at Police Station R.K. Puram and

all proceedings consequent thereto, including the charge sheet are hereby

quashed.

23. The petition and application stands allowed with no orders as to

costs.

S. MURALIDHAR, J.

JANUARY 28, 2009 ak