IN THE COURT OF SH. [ENTITY] METROPOLITAN MAGISTRATE06 (East), KARKARDOOMA COURTS, DELHI. FIR NO. : 231/99 PS : Preet Vihar Offence complained of : 337/304 A [ACT] Date of commission of offence : 20.06.1999 Unique Case ID No. : 02402R0015362001 STATE Vs. [ENTITY] S/o Nafijan Khan R/o H. No. 360, Village Karkardooma, Delhi. Accused SI [ENTITY], PSPreet Vihar, Delhi. Complainant Date of Institution : 25.07.2001 Plea of accused : Pleaded not guilty. Date of reserving judgment/ order : 08.11.2011 Date of pronouncement : 08.11.2011 Final Order : Acquitted BRIEF STATEMENT OF THE REASONS FOR THE DECISION ALLEGATIONS The story of the prosecution is that on 20.06.1999 at about 2:00 PM at the side of road in front of H. No. B42, Madhuban, Delhi, falling within the jurisdiction of Police Station Preet Vihar, the accused [ENTITY] was acting as supervisor and construction work was going under his supervision and while workers were doing the work, some of the workers touched the electric cable in place of water pipe, because of which workers namely [ENTITY] and [ENTITY] FIR No. 231/99 Page No. 1 / 12 received simple injuries and worker [ENTITY] also received injuries which ultimately resulted into his death. Thus, accused [ENTITY] is alleged to have committed offence punishable under [SECTION] A [ACT]. FIR On the basis of the said allegations and on the complaint of the complainant SI [ENTITY], an FIR bearing number 231/99 under [SECTION] A [ACT] was lodged at Police Station Preet Vihar on 20.06.1999. CHARGE After investigation, chargesheet under [SECTION] [ACT] was filed on 25.07.2001. The accused was summoned to face trial and he was supplied the copy of charge sheet as per [SECTION] [ACT] On the basis of the chargesheet, a notice for the offence punishable under [SECTION] [ACT] was framed against the accused [ENTITY] and read out to the said accused person, to which the accused pleaded not guilty and claimed trial on 06.03.2010. JUDICIAL RESOLUTION To bring home the guilt of causing injuries by negligence, three things need to be proved by the prosecution that to beyond any reasonable doubt. The three essential ingredients are as follows: (1)That the incident actually took place. (2)That the incident took place due to rash and negligent behaviour of the accused as he failed to take proper care and precaution. (3)That the accused was the person who was responsible for the incident directly i.e., there is direct nexus between the incident and the negligence of the accused. FIR No. 231/99 Page No. 2 / 12 These words i.e "rash" and "negligent", have not been defined in the [ACT]. However as per Blacks Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances. Quoting from the article "Negligence, Mens Rea and Criminal Responsibility" by [ENTITY] in Punishment and Responsibility the dictionary further goes on to explain the difference between an act done inadvertently and an act done negligently. "[A] careful consideration is needed of the difference between the meaning of the expression like 'inadvertently' and 'while his mind was a blank' on the one hand, and 'negligently' on the other hand. In ordinary English, and also in Lawyer's English, when harm has resulted from someone's negligence, if we say of that person that he has acted negligently we are not thereby merely describing the frame of mind in which he acted. 'He negligently broke a saucer' is not the same kind of expression as 'he inadvertently broke a saucer'. The point of adverb 'inadvertently' is merely to inform us of the agent's psychological state, whereas if we say 'He broke it negligently' we are not merely adding to this an element of blame or reproach, but something quite specific, viz. we are referring to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take precautions against harm. The word 'negligently', both in legal and non legal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly descriptive psychological expression like 'his mind was a blank'." The Oxford Advanced Learner's Dictionary, Sixth Edition defines 'Rash'as doing something that may not be sensible without first thinking about the possible results. Elaborating further, in [ENTITY] of H.P. v. Piar Chand, Cr. Appeal No. 109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, while dealing FIR No. 231/99 Page No. 3 / 12 with the meaning of the expression " rashness " and " negligence " held as follows: "18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a individual." The court would also like to refer to a very recent judgment of the Honorable Supreme Court of India elaborating further the requirements of [SECTION] of [ACT]. Quoting from Rathnashalvan v. [ENTITY] of Karnataka, (SC) 2005 A.I.R. (SC) 1064. "[SECTION] applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of [SECTION] and [SECTION] [ACT]. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under [SECTION] Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any FIR No. 231/99 Page No. 4 / 12 intention to cause injury or knowledge that it would probably be caused. As noted above, " Rashness " consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted. 8. The distinction has been very aptly pointed out by [ENTITY], J. in these words : "Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection." (See In Re : [PRECEDENT])". In order to prove the above said allegations, the prosecution cited 16 witnesses, of which the victims/ eye witnesses are [ENTITY] and [ENTITY] who have been cited as PW4 and PW5 in the list of witnesses. Witness [ENTITY] is also the witness to the incident who has been cited as PW3 in the list of witnesses. Witness [ENTITY] is not the witness to the incident, who has FIR No. 231/99 Page No. 5 / 12 been examined as PW1. Witness [ENTITY] is not the witness to the incident, he is merely a witness with respect to dead body identification. All the other remaining witnesses are formal witnesses and none of them is a witness to the incident. Except eye witnesses [ENTITY], [ENTITY] and [ENTITY], all the remaining 13 witnesses cited by prosecution are formal witnesses and sufficient only to prove that the injured persons received injuries and that an FIR with respect to the said incident was lodged on the same day at PS Preet Vihar vide FIR bearing No. 231/99. PWs [ENTITY], [ENTITY], [ENTITY] and [ENTITY] were summoned on several occasions and they were also summoned through IO as well as through DCP concerned, however, the summons sent to the said witnesses were received back unserved with the report that the said witnesses have left the given addresses and therefore were not traceable. Thus, in view of the report on summons, the court came to the conclusion that the said witnesses were not traceable and ordered vide order dated 08.11.2011 that the said witnesses be not summoned again and therefore dropped them from the list of witnesses. In the absence of testimony of the victims/ eye witnesses [ENTITY] and [ENTITY], the prosecution can never prove that the injuries caused to the said persons in the present case was a result of an act of accused [ENTITY]. Besides this, two other witnesses have been examined by the prosecution i.e., PW 1 [ENTITY] and PW - 2 Ct. [ENTITY]. PW - 1 [ENTITY] deposed in his examinationinchief that on 20.06.99
his house was constructed under the supervision of [ENTITY] and during construction [ENTITY] stated him that he ([ENTITY]) can also provide water connection for extra charge and asked Rs.1,000/ for the same. He further deposed that after believing, he gave contract for water connection to the accused. Thereafter, when he came back from his work he came to know that three labours had received injuries due to electric shock and were taken to LNJP Hospital by his driver [ENTITY]. Thereafter, his statement was recorded by the police on 03.07.99. It is clear from his testimony that he is not a witness to the incident.
PW 2 Ct. [ENTITY] is a formal witness who deposed on the lines of the prosecution.
The remaining witnesses who are yet to be examined by the prosecution are all formal witnesses and none of the remaining witnesses is an eye witness to the incident. Witness [ENTITY] is not the witness to the incident, he is merely a witness with respect to dead body identification.
In the present case there are three eye witnesses namely [ENTITY], [ENTITY] and [ENTITY], who could not be traced. No other witness is competent enough to prove the guilt of the accused.
In the absence of testimony of [ENTITY], [ENTITY] and [ENTITY], the testimony of all the remaining witnesses together is insufficient to prove the allegations against the accused qua offences u/[SECTION] [ACT].
The case is at the stage of PE, however, in the absence of testimony of [ENTITY], [ENTITY] and [ENTITY], there is nothing incriminating against the accused for proceeding further and recording the statement of remaining formal witnesses would be futile and wastage of judicial time, resources and money.
In the opinion of the court, the present case is a fit case where the court should exercise its power under [SECTION] of [ACT] and stop the proceedings qua offences u/[SECTION] A [ACT] as continuing with trial will not only be wastage of state money rather it will also be wastage of judicial time and harassment to the accused.
In "P. Ramachandra Rao v. [ENTITY] of Karnataka" AIR 2002 SUPREME COURT 1856 ( Coram : 7 [ENTITY], C.J.I., [ENTITY], [ENTITY], [ENTITY], [ENTITY], Mrs. [ENTITY], [ENTITY], JJ.) the Honorable Supreme Court while commenting upon the right to speedy justice observed:
"22. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The [ACT], as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. [SECTION], dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. Explanation2 to [SECTION] confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. [SECTION], in [SECTION] of [ACT], on Trial Summons cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge.
This provision is almost never used by the Courts. In appropriate cases, inherent power to the High Court, under [SECTION] can be invoked to make such orders, as may be necessary, to give effect to any order under the [ACT] or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under [SECTION] of [ACT] for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by [SECTION] of the [ACT]. The [ACT] Bench in [ENTITY]'s case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from [SECTION], the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied) "30.For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (1996 AIR SCW [SECTION]9 : AIR 1996 SC 1619 : 1996 Cri LJ 2380) (as modified in Common Cause (II) 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195 (1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596) and [ENTITY] (I) and (II) (1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1998 Cri LJ 4541), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold: (1) The dictum in [ENTITY]'s case is correct and still holds the field.
(2) The propositions emerging from [SECTION] of the [ACT] and expounding the right to speedy trial laid down as guidelines in [ENTITY]'s case, adequately take care of right to speedy trial. We uphold and reaffirm the said propositions. (3) The guidelines laid down in [ENTITY]'s case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket formula. Their applicability would depend on the factsituation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The timelimits or bars of limitation prescribed in the several directions made in Common Cause (I), [ENTITY] (I) and [ENTITY] (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), [ENTITY] Case (I) and (II) . At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in [ENTITY]'s case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such timelimits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and a mandatorily obliging the court of terminate the same and acquit or discharge the accused. (5) The Criminal Courts should exercise their available powers, such as those under [SECTION], [SECTION] and [SECTION] of [ACT] to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under [SECTION] of [ACT] and [SECTION] and [SECTION] of [ACT] can be invoked seeking appropriate relief or suitable directions. (6) This is an appropriate occasion to remind the Union of India and the [ENTITY] Governments of their constitutional obligation to strengthen the judiciary - quantitatively and qualitatively by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act." (emphasis supplied) In "Pankaj Kumar v. [ENTITY] of Maharashtra" AIR 2008 SUPREME COURT 3057 (Coram : 2 [ENTITY] AND [ENTITY], JJ.)the Honorable Supreme Court, while relying upon the aforesaid judgment, observed:
"16. Notwithstanding elaborate enunciation of [SECTION] of the [ACT] in [ENTITY] (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down timelimits as bar beyond which a criminal trial shall not proceed pronouncements of this Court in "Common Cause" [PRECEDENT]., "Common Cause", [PRECEDENT]., [ENTITY] Vs. [ENTITY] of Bihar and [ENTITY] II Vs. [ENTITY] of Bihar gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused. The confusion on the issue was set at rest by a sevenJudge Bench of this court in P. Ramachandra Rao Vs. [ENTITY] of Karnataka. Speaking for the majority, [ENTITY], J. (as his Lordship then was) while affirming that the dictum in [ENTITY]'s case (supra) is correct and still holds the field and the propositions emerging from [SECTION] of the [ACT] and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the [ENTITY]'s case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket formula. Their applicability would depend on the factsituation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under [SECTION], [SECTION] and [SECTION] of [ACT] to effectuate the right to speedy trial. In appropriate cases, jurisdiction of the High Court under [SECTION] [ACT] and [SECTION] and [SECTION] of the [ACT] can be invoked seeking appropriate relief or suitable directions. The outer limits or power of limitation expounded in the aforenoted judgments were held to be not in consonance with the legislative intent." (emphasis supplied) Accordingly, in the opinion of the court, in the light of the above cited judgments, the court needs to exercise its power under [SECTION] [ACT] qua offences u/[SECTION] [ACT] to make the ends of justice meet.
Final Order In the absence of testimony of eye witnesses namely [ENTITY], [ENTITY] and [ENTITY] and in the light of the aforesaid discussion and cited judgments, the court while protecting the right of the accused person to have speedy justice invokes the power conferred upon it under [SECTION] of [ACT] to stop the proceedings against the accused [ENTITY] qua offences u/[SECTION] A [ACT] in the present summons police case and hereby releases the accused [ENTITY] under [SECTION] [ACT], which shall have the effect of acquittal.
As per [SECTION] of the [ACT], as inserted vide the [ACT], which came into force on 31.12.2009, the personal bond and the surety bond of the accused as well as surety shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 08.11.2011.
([ENTITY]) MM06(East)/ KKD/ 08.11.2011 Certified that this judgment contains 12 pages and each page bears my signatures.
([ENTITY]) MM06(East)/ KKD/ 08.11.2011