Sunil Manchanda 7 Anr. vs State
2009 Latest Caselaw 4602 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


%                    Judgment Reserved on: 6th November ,2009
                    Judgment Delivered on: 11th November, 2009


       +        CRL.REV.P. 563/2009 & Crl.M.A.12341/2009

        SUNIL MANCHANDA & ANR.                     ..... Petitioner
                      Through:         Mr.Rajat Wadhwa, Adv.

                     versus

        STATE                                       ..... Respondent
                           Through:    Ms.Fizani Husain, APP.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the Digest?
                                                    Yes

INDERMEET KAUR, J.

1. By way of this revision petition the petitioner has impugned

the order dated 10.9.2009 whereby the Trial Court had framed

notice under Section 251 of the Cr. P.C. against the petitioners

Sunil Manchanda, Kapil Mahajan for an offence punishable under

Section 285/337/338 of the IPC.

2. Briefly stated the facts of the case are as follows :-

On 15.2.2002 vide DD No.45 received at police station

Sultan Puri, information was given that a blast had taken place

near Adarsh Nursery in the scrap lying therein; some persons had

received injuries. The investigative team reached the spot. Four

persons were found to be injured namely Raj Kumar, Subhagman,

Ram Murat and Ram Bachan; they had been removed to S.G.M.

Hospital. Their MLCs had depicted the injuries to be dangerous

and grievous.

Statement of all the injured were recorded on 16.2.2002.

They were all working as labourers in the godown No.7 of Anand

Nusrsery, Yadav Farms,Kirari Road, Delhi for the last three

months. On the fateful day i.e. 15.2.2002 while they were

dealing with scrap in the godown between 2.30-2.45 PM there

was a blast pursuant to which the aforestated persons received

injuries; they were removed to the hospital by the owner of the

farm house in the PCR van. Supplementary statements of the

injured were recorded on 6.3.2002. In these statements all the

aforestated persons had spelt out the role of the present

petitioners namely Sunil Manchanda and Kapil Mahjan. It had

been stated that they were working in godown No.7 which

belonged to the present petitioners; from the scrap chemical gas

and pollution used to be emitted; this had been informed to the

petitioners as also to the contractor Amrit Lal Shukla. They,

however, did not bother and kept the matter pending saying that

nothing untoward will happen and if they i.e. injured are

aggrieved by the working conditions they may leave; due to

financial compulsions the injured had continued working; on the

fateful day injured Ram Bachan's foot came under a hammer

pursuant to which a gas and chemical gas got emitted resulting

in the blast. Aforestated persons were injured. In this version, it

has been averred that the accident had occurred because of the

negligence of the factory owners namely the petitioners Sunil

Manchanda and Kapil Mahajan.

3. The scrap including pieces of the metal which has been

lifted from the spot had been sent to CFSL for examination. The

CFSL vide its report dated 24.8.2003 had opined that no

explosive substance could be detected in the said exhibit.

4. Charge sheet in this case had accordingly been filed under

Sections 337/338 of the IPC on 4.2.2004; cognizance was taken

on i.e. 20.2.2004. Notice in this case had been framed been on

10.9.2009 under Section 285/337/338 of the IPC.

5. On behalf of the petitioner, it has been submitted that

notice had been framed under Section 285 of the IPC on

10.9.2009; the cognizance of the offence under Section 285 of

the IPC was taken for the first time on 10.9.2009 which is beyond

the period of limitation as offence in this case is dated 15.2.2002

and cognizance under Section 285 of the IPC having been taken

seven years later is clearly barred by Section 468 of the Cr.P.C.

Cognizance under Section 285 of the IPC is bad and liable to be

set aside.

6. Second argument propounded is that the averments made

in the charge sheet do not attract the provisions of Sections

337/338 of the IPC. The petitioners cannot be held guilty for a

vicarious liability. Negligence under criminal law cannot be

equated with negligence under civil law; parameters and the

essential ingredients to ajudge 'negligence' in order to fasten a

criminal liability are distinct. Reliance has been placed upon AIR

2005 SC 3180 Jacob Mathew Vs. State of Punjab to support this

submission. Ingredients of the offences under Sections 337/388

of the IPC which necessarily postulate a negligent act are not

made out qua the petitioners; they are entitled to a discharge.

7. Learned prosecutor has rebutted these arguments.

8. The offence is dated 15.2.2002. The charge sheet had

been filed under Section 337/338 of the IPC on 4.2.2004; on

20.2.2004 the cognizance of the offences had been taken.

Notice was framed on 10.9.2009.

9. The stage of the framing of a notice is different and

distinct from the stage of taking cognizance. Cognizance has not

been defined in the statute; either in the IPC or in the Cr. P.C.

but it necessarily means taking of judicial notice which is a stage

when the accused is not to be heard; it is a matter between the

Court and the complainant/State; at the stage of notice accused

has a right to be heard. Cognizance is taken of the offence and

not of the offender. Admittedly as on 20.2.2004 cognizance of

the offence under Section 285 of the IPC was within limitation.

10. The bar of Section 468 of the Cr. P.C. operates on the

taking of the cognizance of an offence. In this case cognizance

of the offence had been taken on 20.2.2004 when the accused

were summoned; on which date admittedly there was no bar of

limitation for taking cognizance of the offence under Section 285

of the IPC. On 10.9.2009 the stage of cognizance was already

over; it was the stage when the notice was framed against the

accused persons which is a subsequent stage i.e. after the stage

of taking cognizance. Bar of Section 468 of the Cr.P.C. is

inapplicable.

11. On merits, the statements of the injured persons namely

Raj Kumar, Subhagman, Ram Murat and Ram Bachan have been

perused. Their first statements were recorded by the

Investigating Officer on 16.2.2002 and their supplementary

statements were recorded on 6.3.2002; they had suffered

grievous and dangerous injuries. The averments contained in

their second statements dated 6.3.2002 evidently and prima

facie detail the role of the present petitioners and which have

been discussed supra. Section 285 speaks of negligent conduct

with respect to fire or combustible matter. Sections 337/338 of

the IPC encompass endangering of life and personal safety of

others by causing hurt or grievous hurt respectively.

12. At the stage of framing of notice under Section 251 of the

Cr. P.C. it is the substance of the accusation which has to be

stated to the accused in order that the accused knows that he

has to meet this charge. This accusation has been so stated

clearly in the notice framed against the petitioners. The

particulars of the offence had been explained to them.

13. There is no merit in this revision petition. Dismissed

(INDERMEET KAUR) JUDGE 11, November, 2009 nandan