Orissa High Court

Application Under Section 482 Of ... vs State Of Odisha on 16 May, 2023

           IN THE HIGH COURT OF ORISSA AT CUTTACK
                       CRLMC Nos. 919 of 2023

      Application under Section 482 of Criminal Procedure Code,
      1973.
                                 ---------------

      Shri Rajesh Behera           ....                       Petitioner

                                 -versus-

      State of Odisha       ....                          Opp. Party


      Advocate(s) appeared in these cases:-

      For Petitioner    : Mr. G.P. Mohanty,
                          Advocate
                                          Vs.
      For Opp. Party    :   Mr. N. Pratap,
                            [Additional Standing Counsel]
      __________________________________________________________

      CORAM:
           JUSTICE SASHIKANTA MISHRA

                               JUDGMENT

16th May, 2023

SASHIKANTA MISHRA, J.

The petitioner, in the present application filed

under Section 482 of Cr.P.C. seeks quashment of the

criminal proceedings instituted against him in C.T. Case

No.1383 of 2021 of the Court of learned J.M.F.C.,

Chandikhole under Sections 287/304/420/379/34 IPC,

Section 21 of the Mines and Minerals (Development and

Regulations) Act 1957, Sections 3 and 4 of Explosive

Substances Act, 1908 and Section 15 of the Environment

(Protection) Act, 1986.

2. The facts of the case are that one Dukhina Purty

lodged FIR in Jenapur police station on 24.08.2021 stating

therein, that has father, Dilip Purty, while returning home

on 23.08.2021 from the hillock fell down in a ditch at

about 3.00 P.M. He was taken to Dharmasala dispensary

where the doctor declared him dead. In course of

investigation, it was ascertained that one Babuli Behera

and his son Rajesh Behera (petitioner) are unauthorizedly

running a stone quarry in Baghua hillock which is a

Government land and that quarrying was being done by

using explosive substances. They did not have any license

or authorization to extract minerals from the land in

question. Upon completion of investigation, charge sheet

was submitted against the accused persons for the

aforementioned offences.

3. Heard Mr. G.P. Mohanty, learned counsel for the

petitioner and Mr. N. Pratap, learned Additional Standing

Counsel for the State.

4. Mr. Mohanty has forcibly argued that a simple case of

accidental fall of the deceased has been blown up by the

police to transfer it into a case of culpable homicide. In any

case, the petitioner is a college student having passed the

degree examination in the year 2022 and there is

absolutely no material to show that he had any role

whatsoever to play in the accidental death of the deceased.

There is also no material to show that the provisions under

the other statutes were violated by him or his father.

5. Mr. N. Pratap, on the other hand, submits that there

are adequate materials on record to show that the

petitioner and his father were illegally extracting stones

from Government land without any lease or authority.

Because of such illegal blasting of the hillock using

explosives, a ditch was formed in which the deceased fell

down and sustained fatal injuries. Therefore, the petitioner

is liable for the offences.

6. Reading of the charge sheet shows that at the relevant

time the deceased, who was allegedly working in the quarry

fell down from the hillock and sustained severe injuries due

to which he died. The charge sheet itself clearly mentions

that no explosive material was available or seized from the

spot. But, basing on circumstantial evidence, the I.O.

formed opinion that the petitioner and his father were

using explosive materials for blasting of stones causing

damaged to the environment.

7. Given the above facts, the question that falls for

consideration is, whether the petitioner can be said to have

had any role to play in the death of the deceased. The

principal offence for which the petitioner has been charge

sheeted is Section 304 IPC, i.e., culpable homicide not

amounting to murder, the said offence is as follows:-

"304. Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;

or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death"

8. Section 300 I.P.C. deals with culpable homicide not

amounting to murder as covered under the Exceptions 1 to

5 of Section 300 of I.P.C.

For immediate reference the Exceptions to Section

300 are quoted herein below.

"Exception 1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:-

First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Exception 2.-Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property,

exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Exception 3.-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.

Exception 5.-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."

What is essential to note is that an act must have

been committed by the accused causing death of a person

either with intention to cause death or with knowledge,

that it is likely to cause death or such bodily injury as is

likely to cause death. Thus, there has to be an overt act on

the part of the accused. In the instant case, there is no

evidence whatsoever to show that the deceased fell down

from the hillock because of any act of the accused. Even

considering the allegation that the deceased fell in a ditch

then also in the absence of any evidence to show that the

ditch was created by the accused by using explosive

material, no fault can be attributed to him. From the FIR,

charge sheet and the statement of witnesses recorded

under Section 161 of Cr.P.C. there is absolutely nothing to

show that the accused was responsible for the fall of the

deceased. The post-mortem report shows that the deceased

sustained injuries on his forehead and cause of death is

due to hemorrhage, shock and the complications thereof.

So what emerges from the materials collected by

prosecution is, the deceased while returning had an

accidental fall leading to injuries. It has been argued on

behalf of the State that the accused and his father must be

held responsible because they were conducting mining

activities illegally without obtaining lease. If such is the

case then they may be liable under the relevant statutes

relating to mining activities, but not obtaining mining lease

cannot have any bearing, directly or indirectly on the

accidental fall of the deceased leading to his death. There is

also no material to show that the petitioner was

responsible for carrying out the mining activities.

9. It has also been argued by the State that the accused-

petitioner would still be liable for the offence under Section

304-A I.P.C., if not under Section 304 I.P.C. But it is the

settled position of law that even to establish the offence of

Section 304-A I.P.C., it has to be shown that an act was

committed by the accused which has a direct or proximate

nexus with the death of the deceased.

The above view was taken by the Apex Court in the

case of Kurban Hussein Mohammedali Rangwalla vs.

State of Maharashtra, reported in AIR 1965 SC 1616 and

also by this Court in the case Anandasingh Neggi vs. The

State, reported in AIR 1969 Ori 49.

10. In the instant case, as already stated, no overt act has

been attributed to the petitioner. That apart, the materials

relied upon by the prosecution do not show that the

deceased had an accidental fall because of any negligent

act on the part of the accused. Under such circumstances,

no criminal liability can be saddled on the accused or the

death of the deceased.

11. It is borne out from the record that the S.I. of Police

of Jenapur police station in his report to the IIC found that

while the deceased was climbing over the hillock, as there

was no precautionary measure taken by him as well as his

employer, fell down from the hillock from a height of about

25 feet from the stony surface. Thus, the possibility that

the deceased was himself negligent cannot also be ruled

out.

Thus, this Court finds that there is no material or

evidence to even prima facie suggest commission of the

offence under Section 304 or 304-A of I.P.C.

12. However, it was ascertained from the statement of

witnesses examined during investigation that the petitioner

and his father were engaged in illegal mining in Baghua

hillock to extract stones by using explosive substances.

Such quarry was operated without obtaining any lease or

permission of the competent authority. In fact, it is borne

out from the case diary that steps have been taken to lodge

complainant under Section 21 of MMDR Act by the

appropriate authority before the competent court of law.

Even otherwise cognizance of the offence under Section 21

of the MMDR Act can only be taken on a complaint filed by

the authorized person and not on police report.

13. Coming to the other offences, it is seen that the

petitioner has also been charge sheeted under Sections

287/420/379/34 of I.P.C., Sections 4 & 5 of the Explosive

and Substances Act and Section 15 of the Environment

Protection Act. Section 287 reads under:-

"287. Negligent conduct with respect to machinery- Whoever does, with any machinery any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person,

or knowingly or negligently omits to take such order with any machinery in his possession or under his care as is sufficient to guard against any probable danger to human life from that substance,

shall be punished with imprisonment of either description for a term which may extend to six months, or with find which may extend to one thousand rupees, or with both."

A bare reading of the provision would make it clear

that the essential ingredient to constitute the offence is

some overt act committed by the accused with machinery.

In the instant case, the charge sheet is entirely silent as

regards use of any machinery by the accused persons. It is

also not the case under prosecution that any machinery

was used by the petitioner.

As regards the offences under Sections 4 and 5 of

Explosive Act, the said provisions are quoted herein below:

"4. Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property.- Any person who unlawfully and maliciously-

(a) does any act with intent to cause by an explosive substance or special category explosive substance, or conspires to cause by an explosive substances or special category explosive substance, an explosion of a nature likely to endanger life or to cause serious inquiry to property, or

(b) makes or has in his possession or under his control any explosive substance or special category explosive substance with intent by means other person by means thereof to endanger life or cause serious injury to property in India.

Shall, whether any explosive does or does not take place and whether any injury to person or property has been actually caused or not, be punished-

(i) in the case of any explosive substance, with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

              (ii)    in the case of any special category
         explosive      substance,      with     rigorous

imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine."

"5. Punishment for making or possessing explosives under suspicious circumstances.- Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punished.-

(a) in the case of any explosive substances, with imprisonment for a term which may extend to ten years, and shall also be liable to find;

(b) In the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to find."

14. In the charge sheet, it is clearly mentioned that no

seizure was made of any explosive material for blasting of

black stone as no such material was available during the

spot visit by the I.O.. Thus, the primary ingredient, i.e.,

evidence of use of explosives not being available, the

offence under Sections 4 and 5 of the Explosives and

Substances Act cannot be said to be made out.

15. As regards the offence under Sections 420 of I.P.C.

the said provision is quoted herein below:-

"420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person de- ceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

16. It is settled law that to attract Section 420, which can

be treated as an aggravated form of cheating within the

meaning of Section 417, the following ingredients must be

present:

      (i)     Cheating.

      (ii)    Dishonest inducement to deliver property.
      (iii)   Mensrea of the accused.

Nothing is on record to show that the accused had

deceived any person to deliver any property with dishonest

intention. The only thing that appears from the record is, a

suspicion that he had cheated the Government by

quarrying illegally. But then there is simply no material to

prima facie support such allegation.

17. As regards the offence under Section 379 of IPC, the

same is quoted herein below:-

"379. Punishment for theft- Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

It is well settled that in order to attract Section 379 it

must be proved that the accused removed some immovable

property out of the possession of another person without

his consent and with dishonest intention. In the instant

case, it is alleged that he was involved in illegal mining of

black stone in the quarry. There is simply no material and

no evidence as to what was actually removed from the area

and if so, what was the quantity thereof. Simply on the

basis of the statement of some witnesses that the petitioner

was involved in illegal quarrying cannot, ipso facto, attract

the offence under Section 379 of I.P.C. The prosecution

must primarily show that the accused persons had