IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 31.05.2018 [CASE NUMBER] (O&M) [ENTITY] and another Petitioners Versus [ENTITY] Respondent CORAM: HON'BLE MR. JUSTICE [ENTITY] Present:- Mr. [ENTITY], Advocate for the petitioners. Mr. [ENTITY], AAG, Haryana. [ENTITY], J. (Oral)
In this petition, the petitioners seek quashing of the charges framed against them by the learned trial court (Additional Sessions Judge, Gurgaon), vide the impugned order dated 06.01.2017, for the alleged commission of offences punishable under [SECTION], [SECTION] and [SECTION] of the [ACT] read with [SECTION] thereof.
Mr. [ENTITY], learned counsel for the petitioners, first points to the FIR, Annexure P-3, dated 25.07.2015, registered at Police Station DLF Phase I, alleging therein the commission of offences punishable under [SECTION], [SECTION], [SECTION], all read with [SECTION] [ACT] (the FIR number being 0252).
Learned counsel contends that as a matter of fact since all the offences alleged in the FIR were those that were punishable with imprisonment of less than one year, in the report filed under [SECTION] [ACT], it was stated that an offence punishable under [SECTION] of the [ACT] had been added to the FIR on 15.07.2016.
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He submits that this addition is shown to have been made as per the challan, only because the limitation would otherwise have run out for the court to take cognizance of the offences originally alleged in the FIR, in terms of [SECTION] and [SECTION] [ACT]
Mr. [ENTITY] next cites a judgment of the Supreme Court in the case of [PRECEDENT], as regards the charge framed under [SECTION] of the [ACT]; and as regard non-culpability of the petitioners for the commission of an offence punishable under [SECTION] [ACT], he has cited judgments of the Supreme Court in [PRECEDENT] through [PRECEDENT] and Association of Victims of [ENTITY] v. Sushil Ansal and another AIR 2017 (SC) 976, to submit that even where deaths unfortunately took place in premises that did not cater to safety measures by way of providing sufficient number of exits therefrom, no charge under [SECTION] or [SECTION] of the [ACT] was sustained, the conviction having been for the commission of an offence punishable under [SECTION] [ACT]; and therefore, in the present case, no mishap having taken place at all, imputation of mens rea for the commission of an offence punishable under [SECTION] [ACT], is wholly unsustainable.
He also cites a judgment of the Calcutta High Court in [PRECEDENT].
Mr. [ENTITY], learned AAG, Haryana, very fairly does not oppose the quashing of the charge framed under [SECTION] [ACT], in 2 of 6 [CASE NUMBER] (O&M) -3- view of the judgment of the Supreme Court in [ENTITY]' case (supra), but submits that as regards charge framed under [SECTION] [ACT], the petitioner not having provided enough safeguards for escape from their premises, the charge under [SECTION] [ACT] is fully sustainable, with of course evidence to be appraised by the trial court during the course of the trial. He submits that this Court would not interfere in the framing of the charge under the said provision.
He also cites judgments of the Supreme Court in [PRECEDENT] and [PRECEDENT].
(As regards the second judgment, he refers to it to submit that even if this Court holds that the charge framed under [SECTION] is not sustainable, the trial would continue qua the remaining charges).
Having considered the arguments on both sides, I find myself eventually in agreement with the learned counsel for the petitioner, as regards the question of maintainability of charges for the commission of offences punishable under [SECTION] and [SECTION] of the [ACT].
In the present case, it is not disputed at all that (luckily) no untoward accident/occurrence took place by which anybody was injured etc., due to the petitioners not having provided adequate number of exits from their premises.
Though in the prima facie opinion of this Court, as had been conveyed on the previous date of hearing, knowledge could be imputed to 3 of 6 [CASE NUMBER] (O&M) -4- the petitioners that due to non-adherence to safety standards, even lives could be lost in case of an unfortunate fire etc., however, in view of what has been held in the [ENTITY] case (supra), at best, even in the case of an unfortunate tragedy, an offence punishable under [SECTION] of the [ACT] would be committed.
In that case, unfortunately, many lives had been lost, due to non-adherence to proper safety measures by the owners of the cinema hall.
Therefore, if an occurrence in which a large number of people have lost their lives in a cinema hall, was held to be an offence punishable under [SECTION] and not [SECTION] of the [ACT], as regards an offence punishable under [SECTION] [ACT], in the present case, naturally where no such occurrence has taken place, in the opinion of this Court, an attempt to commit such an offence cannot be imputed to the owner of the premises where, similarly, safety standards have not been adhered to, (even if the owner had reason to believe that such tragedy could take place for non-adherence to such safety standards).
Thus, though in the opinion of this Court, in the case of a tragedy in such circumstances an offence under [SECTION] may be made out, however, the conviction in the [ENTITY] case having been in respect of an offence punishable under [SECTION] and not [SECTION], in the present case an offence punishable under [SECTION] of the [ACT] cannot be made out.
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Coming then to the charge framed under [SECTION] of the [ACT]. In [ENTITY]' case (supra), where charges were framed for the commission of offences punishable under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT], as also under [SECTION], it was held by the Supreme Court as follows:-
"27. Undoubtedly, the law does not permit taking cognizance of any offence under [SECTION] [ACT], unless there is a complaint in writing by the competent Public Servant. In the instant case, no such complaint had ever been filed. In such an eventuality and taking into account the settled legal principles in this regard, we are of the view that it was not permissible for the trial Court to frame a charge under [SECTION] [ACT]. However, we do not agree with the further submission that absence of a complaint under [SECTION] [ACT] falsifies the genesis of the prosecution's case and is fatal to the entire prosecution case. There is ample evidence on record to show that there was a prohibitory order; which had been issued by the competent officer one day before; it had been given due publicity and had been brought to the notice of the public at large; it has been violated as there is no denial even by the accused persons that there was no 'Rasta Roko Andolan'. Unfortunately, the agitation which initially started peacefully turned ugly and violent when the public transport vehicles were subjected to attack and damage. In such an eventuality, we hold that in case the charges under [SECTION] [ACT] are quashed, it would by no means have any bearing on the case of the prosecution, so far as the charges for other offences are concerned."
In the present case, admittedly there having been no complaint filed under [SECTION] of the [ACT] as regards the commission of an offence punishable under [SECTION] of the [ACT], the charge framed by the learned trial Court under that provision ([SECTION] cannot be sustained.
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Consequently, the charges framed by the trial Court in respect of offences punishable under [SECTION] and [SECTION] of the [ACT] are hereby quashed and the petition is allowed to the above extent.
The contention of Mr. [ENTITY] being that in fact the offence punishable under [SECTION] [ACT] was only added by the investigating agency to beat limitation in terms of [SECTION] and [SECTION] of the [ACT], with the FIR having been initially registered for the commission of offences punishable under [SECTION] read with [SECTION] of the [ACT], it would now be up to the prosecution to file an application in terms of [SECTION] [ACT] for seeking extension of period of time for limitation, or alternatively to show the trial court whether limitation would in fact be 'negated' in terms of [SECTION] [ACT]
Thus, this petition is partly allowed and disposed of, while sustaining the charge framed under [SECTION] [ACT], with the trial Court to consider framing of a charge under [SECTION] of the [ACT], upon consideration of the applicability of [SECTION] [ACT], or for consideration of any application to be filed for extension of time in terms of [SECTION], as the case may be.
31.05.2018 ([ENTITY]) vcgarg JUDGE Whether reasoned/speaking: Yes Whether reportable: Yes 6 of 6