Ashok Malhotra vs State
2011 Latest Caselaw 1146 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment reserved on: January 25, 2011
                         Judgment delivered on: February 25, 2011

+      CRL.M.C. NO.2592/2009 & CRL.M.A. NO.8674/2009

       ASHOK MALHOTRA                            ....PETITIONER

              Through:   Mr. Rakesh Mishra, Advocate

                         Versus

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


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. Ashok Malhotra, the petitioner herein has filed this petition under

Section 482 Cr.P.C. seeking quashing of the order of learned

Metropolitan Magistrate dated 04.05.2007 in case FIR No.459/94 under

Section 284/304A/337 IPC P.S. Mangol Puri whereby the learned

Magistrate has summoned the petitioner under Section 319 Cr.P.C. to

appear and undergo trial for the aforesaid offences with the other

accused persons who were charge sheeted.

2. Briefly stated, relevant facts for the disposal of this petition are

that accused Yogesh Malhotra was challaned in the above referred

case and sent for trial for the offences under Section 284, 304A and

337 IPC on the allegations that he was the Manager of M/s. Interport

Industry located in Industrial area, Phase-II, Mangol Puri, the factory

belonging to accused Sunil Tandon. On 04.06.1994 at about 8:00 pm,

accused Sunil Tandon and Yogesh Malhotra forced their employees

complainant Ishwar Singh, Sukhbir , Rajesh and Rakesh to clean the

choked MCD sewer located outside the factory premises. When they

removed the manhole cover for the purpose, the sewer emitted some

poisonous gases. On this, complainant Ishwar Singh and others told

the Manager Yogesh Malhotra that it was not safe to clean the sewer

because of poisonous gases. Yogesh Malhotra ignored their request

and pressurised them to enter the sewer for cleaning. Because of the

pressure exerted by the Manager Yogesh Malhotra, Rajesh entered the

sewer. When Rakesh was asked to enter the sewer, he initially

declined, but the Manager Yogesh Malhotra forced him to enter the

sewer and on entering the sewer, Rakesh became unconscious and fell

into the sewer. Sukhbir Kumar and Rajesh tried to get him out of the

sewer, but in the process they also fell into the sewer. Rajesh and

Sukhbir somehow managed to come out of the sewer, but Rakesh

could not come out. He was taken out from the sewer by one Prahlad

in unconscious condition. In the meanwhile, someone from the public

had informed PCR. PCR van came and took Rakesh and Sukhbir Kumar

to the hospital where Rakesh was declared dead because of inhaling

poisonous gas.

3. The charge sheet was initially filed against Yogesh Malhotra,

Manager of the factory. The trial court, however, on consideration of

the charge sheet found incriminating evidence against owner of the

factory Sunil Tandon, so he was also summoned and both of them were

served with notice under Section 251 Cr.P.C. for the offence under

Section 304A/34 IPC. They pleaded not guilty and claimed trial.

4. The notice was served on those two accused persons on

28.04.1995. Thereafter, the trial court proceeded to record evidence.

Prosecution evidence was concluded on 04.06.2004. On 06.10.2004,

at the stage of recording of statement of accused persons under

Section 313 Cr.P.C., prosecution moved two applications, one under

Section 311 Cr.P.C. to lead additional evidence and other under Section

319 Cr.P.C. for summoning the petitioner Ashok Malhotra as an

accused to undergo trial along with the other two accused persons.

5. Basic allegation in application under Section 319 Cr.P.C. was that

the complainant Ishwar Singh, who was examined as PW5 on

20.03.1996 had named the petitioner Ashok Malhotra as one of the

culprits who purportedly compelled him to clean the sewer, failing

which he threatened to remove him from service. The relevant portion

of the testimony of PW5 Ishwar Singh is, inter alia, reproduced thus:

".....Ashok Malhotra the Manager of the factory called me and compelled me to cleanse the sewer and he also told me that in case of non compliance of order I will be removed from the service......."

".......Accused Sunil Tandon and Yogesh Malhotra were present in the court and Ashok Malhotra the another Manager are responsible for this incident. Ashok Malhotra and Yogesh Malhotra had removed me from service earlier because I had refused to cleanse this sewer..."

6. In view of the aforesaid statement given by the complainant

Ishwar Singh, learned M.M. took the view that, prima facie, there was

complicity of Ashok Malhotra in the offence and, therefore, it was in the

interest of justice to summon him to undergo trial for the offence under

Section 304A IPC read with Section 34 IPC along with the other two

accused persons on trial. Thus, he allowed the application under

Section 319 Cr.P.C.

7. Feeling aggrieved, petitioner Ashok Malhotra has filed instant

petition seeking quashing of the impugned order.

8. Learned counsel for the petitioner has submitted that impugned

order is untenable for the reason that it is unfair to summon and force

the petitioner to undergo trial in respect of incident pertaining to the

year 1994 after a lapse of almost 13 years. Learned counsel further

submitted that the trial court has failed to appreciate that the name of

the petitioner surfaced for the first time in the testimony of the

complainant Ishwar Singh recorded on 20.03.1996. Otherwise, there is

no mention of his complicity in the offence or the role played by him

either in the FIR or in the statements of the eye witnesses recorded

under Section 161 Cr.P.C. Thus, he has urged for quashing of the

order dated 04.05.2007 allowing the application under Section 319

Cr.P.C.

9. On the contrary, learned APP has argued in support of the

impugned order. She has drawn my attention to the testimony of

complainant Ishwar Singh noted above and contended that from the

aforesaid evidence, the complicity of the petitioner Ashok Malhotra in

the offence is established. She contended that aforesaid version rather

tends to show that it was Ashok Malhotra who had forced the

complainant, the deceased and others to enter the sewer. Therefore,

learned trial Judge was right in invoking his power under Section 319

Cr.P.C. to summon the petitioner for undergoing trial for the offence

under Section 304A IPC along with the other accused persons.

10. I have considered the rival contentions and perused the record.

In order to appreciate the rival contentions, it would be useful to have

a look on Section 319 of the Code of Criminal Procedure, which is

reproduced thus:

"319. Power to proceed against other persons appearing to be guilty of offence.

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which Such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the court he may be arrested or

Summoned, as the circumstances of' the case may require, for the purpose aforesaid.

(3) Any person attending the court although not trader arrest or upon a summon, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the court proceeds against any person under subsection (1) then-

(a) The proceedings in respect of such person shall be commenced afresh, and witnesses re-heard.

(b) Subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced."

11. On reading of this Section, it is clear that Section 319 Cr.P.C.

empowers the court to proceed against any person not shown or

mentioned as accused in the charge sheet, if it appears from the

evidence adduced in the court that such person has committed an

offence for which he could be tried together with the main accused

against whom the inquiry or trial is being held. The power exercisable

under Section 319 Cr.P.C. is an extraordinary power conferred on the

court to do real and substantial justice. This power, however, should

be used with caution and only if compelling reasons exist for

proceeding against a person against whom the action has not been

taken.

12. On reading of Section 319(4)(a), it is clear that invoking of

Section 319 (1) Cr.P.C. against any person who was not put to trial

necessarily means re-examination of all the witnesses, which obviously

would result in delay in trial of the accused persons already put on

trial. Therefore, also, the trial Judge should exercise power under

Section 319 Cr.P.C. with due care and caution for the reason that

incorrect summoning of a person under Section 319 Cr.P.C. can result

in violation of the right to speedy trial of the accused person already on

trial.

13. In the instant case, perusal of the record shows that out of the

three eye witnesses cited and examined by the prosecution, two are

hostile witnesses and they have not stated anything against the

petitioner Ashok Malhotra. Only PW5 Ishwar Singh (complainant) in his

testimony has stated about the above-noted role played by Ashok

Malhotra, petitioner. His aforesaid version, obviously, is an

exaggeration for the reason that in his complaint Ex.PW5/A, which is

the basis for the registration of the case, PW5 Ishwar Singh has not

stated anything about the role played by the petitioner Ashok Malhotra.

Rather, name of Ashok Malhotra does not find mention in the complaint

Ex.PW5/A or in any of the statements recorded under Section 161

Cr.P.C. Thus, in all probabilities, even if Ashok Malhotra is put to trial,

the version of the complainant is not likely to be believed, being an

improvement upon his earlier statement made way back on

04.06.1994.

14. Further, since filing of this petition, another development has

taken place, i.e., the complainant Ishwar Singh has expired on

04.04.2008, which fact is verified by Satish Yadav, SHO Mangol Puri in

his affidavit dated 12.05.2010. Thus, in the event of petitioner Ashok

Malhotra being put to trial, the version of the complainant cannot be

used in evidence against the petitioner Ashok Malhotra as he would not

get the opportunity to cross-examine him. Thus, under the

circumstances, I find that no useful purpose shall be served by putting

Ashok Malhotra to unnecessary trial, which in all probabilities cannot

result in conviction. On the other hand, if he is put on trial along with

the others, it would be counter-productive as he would get an

opportunity to examine the witnesses afresh and that would

unnecessarily delay the conclusion of trial, which is already delayed by

almost 17 years.

15. In view of the discussion above, I am of the view that the

impugned order dated 04.05.2007 of learned Metropolitan Magistrate

summoning the petitioner Ashok Malhotra under Section 319 Cr.P.C. is

not tenable in law. It is therefore, set aside.

16. Petition as well as the application stand disposed of accordingly.

(AJIT BHARIHOKE) JUDGE FEBRUARY 25, 2011 pst