1 [CASE NUMBER] IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL REVISION NO.111/2014 [ENTITY] s/o Purushottam Agrawal, aged about 45 years, Occ. Business, r/o Tapadiya Nagar, Akola. APPLICANT V E R S U S 1. [ENTITY] through Police Station Officer, P.S. Risod, Dist. Washim. 2. [ENTITY] s/o Dagaduji Gajre, aged 36 years, Occ. Agriculturist, r/o Palaskheda, Tq. Risod, Dist. Washim. NON APPLICANT Mr. [ENTITY], Advocate for applicant. Mr. [ENTITY], A.P.P. for non applicant no.1. CORAM:- V. M. DESHPANDE, J. DATED :- 30.06.2017 ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. Heard Mr. [ENTITY], learned counsel for the applicant in extenso.
2. The revision challenges the order passed by learned Additional Sessions Judge, Washim dated 11.12.2013 by which the learned Judge rejected the application filed on behalf of the 2 [CASE NUMBER] present applicant below Exh.-6 in [CASE NUMBER] by which his application for discharge and dropping of the proceeding was rejected.
3. Two fold submissions were made before this Court by the learned counsel for the applicant. Firstly, the FIR bearing Crime No.172/2010 for the offence punishable under [SECTION] of the [ACT] registered with Police Station Risod, which culminated into Sessions Trial itself is not maintainable since the first informant initially preferred a private complaint for the offence punishable under [SECTION] of the [ACT] which was registered as [CASE NUMBER] in which the learned Magistrate passed an order under [SECTION] of the [ACT] and the revision filed against the said order was withdrawn. His second submission is that for the same set of facts as it revealed from these two complaints, the Court below ought to have dropped the proceedings for the offence punishable under [SECTION] of the [ACT]. Also, he submitted that remedy for the complainant lies elsewhere since according to the learned counsel for the applicant it is a tortuous liability. Lastly, he submitted that on any count, the applicant cannot be prosecuted for the offence 3 [CASE NUMBER] punishable under [SECTION] of the [ACT] since it was never his intention and negligence on his part. There was no occasion for those two boys to go near the pit.
Mr. [ENTITY], has handed over a list of reported cases. However, he relied on [ENTITY] Jain & anr vs Fazru; AIR 2010 SC 659, an unreported judgment of this Court delivered at Aurangabad in [CASE NUMBER] dated 13.10.2016, decision of the Hon'ble Apex Court in [PRECEDENT], [PRECEDENT], Prof. [PRECEDENT], [ENTITY] .vs. Sheikh Ilias (2010) ALL M.R. (Cri) 1128.
4. It is not in dispute that a work was allotted to the present applicant by the State Government. He excavated the land resulting into a big pit. During the rainy season, the said pit was completely filled with water. It was expected from the applicant to take necessary precautions to see that no unfortunate incident occurs. However, it appears that no steps were taken by the present applicant. Consequently, on 20.10.2009, two unfortunate boys, [ENTITY] aged 8 years and [ENTITY] aged 6 years who were 4 [CASE NUMBER] son and nephew of the non applicant no.2 lost their lives by drowning in the said pit. The said was reported by non applicant to police station. However, instead of registering any offence against the present applicant, an Accidental Death proceeding was registered vide [CASE NUMBER]. Therefore, the non applicant no.2 approached the learned Magistrate by filing complaint for an offence punishable under [SECTION] of the [ACT] and the said was registered as [CASE NUMBER]. Though, the order is not placed on record in support of issuance of the directions by the learned Magistrate to the police for the inquiry, the said aspect is not in dispute and ultimately the police filed their report under [SECTION] of [ACT] which is filed on record, not by the present applicant but by non applicant no.2 which is available at page no. 65 of the compilation. In the last paragraph of the said report, after due inquiry, the police submitted as under:
"lnj pkSd'kh o lk{knkj ;kaps c;ku o:u o ?kVuk LFkGkps ifjfLFkrho:u vtZnkjpk eqyxk foBBy izdk'k xtsZ o; 8 o"ksZ iqr.;k jkes'oj lqHkk"k xtsZ o; 6 o"ksZ jkg.kkj iGl[ksMk ;kaps ej.kkl Bsdsnkj lat; iq:"kksRre vxzoky vdksyk ;kapk fu"dkGthi.kk o cstokcnkji.kk dkj.khHkqr Bjyk vkgs- rjh ekfgrhl o iq<hy dk;Zokghdfjrk pkSd'kh vgoky lsos'kh lknj vkgs "
5 [CASE NUMBER] Though it is not at all binding on the learned Magistrate to accept the report of police officer but when the learned Magistrate is not concurring with the report filed by the police officer, the learned Magistrate was duty-bound to record his reason for his disagreement. However, the learned Magistrate vide order dated 12.07.2010 without any whisper in it, has passed order dropping the proceeding against the present applicant by invoking powers under [SECTION] [ACT]
5. The unfortunate father was required to approach to the revisional Court. During the pendency of the said revision, it appears that wisdom prevailed in the mind of the Investigating Officer therefore he has registered an offence against the present applicant vide [CASE NUMBER]. Therefore, the non applicant no.2 did not press his revision and it was allowed to be withdrawn. Thus the challenge of the non applicant against the order passed by the learned Magistrate under [SECTION] of [ACT] was not decided by the learned revisional Court on merit.
6 [CASE NUMBER]
6. After the FIR was lodged, the police officer completed his entire investigation and vide report under [SECTION] [ACT] filed the final report before the learned Magistrate.
Worth to note here that till the filing of the application for discharge, at no point of time, the wisdom of the investigating officer was tested by the present applicant either by filing an application under [SECTION] [ACT] before this Court for questioning of the FIR for quashing of the charge-sheet.
7. The learned Magistrate in whose Court the charge- sheet was presented found that the case is triable by the Court of Sessions and hence an order of committal was passed and in the Court of Sessions Judge, it was registered as [CASE NUMBER]. On 21.03.2012, an application for discharge was moved on the ground that the Sessions Trial is nothing but a double jeopardy. The learned Sessions Judge has dismissed the said application.
8. The cases which are cited by the learned counsel for the applicant, I need not comment since those are the settled 7 [CASE NUMBER] principles of law. However, merely because the cases are cited that does not require the Court to deal with each and every case if prima facie it appears that the facts in the reported cases and the facts in the case at hand are altogether different. Therefore, in order to avoid bulky order, I am not discussing each case. Suffice it to say that the cases which are cited by the learned counsel for the applicant are not applicable in the present set of facts.
9. The law laid down by the Hon'ble Apex court in the matter of [ENTITY] Jain & anr vs Fazru; (supra), shows that if the first complaint is dismissed on merit, then the second complaint is not maintainable. It would be useful to refer to paragraph 27 of the said judgment. Paragraph 27 reads thus:
"27. Following the aforesaid principles which are more or less settled and are holding the field since 1962 and have been repeatedly followed by this Court, we are of the view that the second complaint in this case was on almost identical facts which was raised in the first complaint and which was dismissed on merits. So the second complaint is not maintainable. This Court finds that the core of both the complaints is the same. Nothing has been disclosed in the second complaint which is substantially new and not disclosed in first complaint. No case is made out that even after the exercise of due 8 [CASE NUMBER] diligence the facts alleged in the second complaint were not within the application of the first complainant. In fact such a case could not be made out since the facts in both the complaints are almost identical. Therefore, the second complaint is not covered within exceptional circumstances explained in [ENTITY] (supra). In that view of the matter the second complaint in the facts of this case, cannot be entertained."
10. The first complaint, which was filed by the non applicant no.2 was for the offence under [SECTION] of the [ACT] whereas the applicant is now facing trial for the offence under [SECTION]. The first complaint was not decided by the learned Magistrate or by the learned revisional Court on its own merit. There is no finding of any competent court in that behalf. Therefore, in my view, the reliance placed by the applicant on [SECTION] [ACT] is wholly unwarranted.
Insofar as the reported case of the Madhya Pradesh High Court is concerned, the facts of the said case are altogether different. In the said case the boy who was drowned in the swimming pool had entered surreptitiously. Therefore, on the facts itself, the said principle of the Hon'ble High Court cannot be made applicable in the present case.
9 [CASE NUMBER]
11. [SECTION] of the [ACT] deals with framing of charge. The said reads as under:
"228. Framing of charge.
(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
It is settled principle that the degree of evidence for deciding the application for discharge and trial on its merit are altogether different. At the time of framing of charge the Court has to see whether there is material and the accused is reasonably 10 [CASE NUMBER] connected with the offence alleged to have been committed and on the basis of the said material, there is reasonable probability or chance of the accused being found guilty of the offence alleged. If the answer is in affirmative then the Court is at liberty to presume "that the accused has committed an offence" as mentioned in [SECTION] of the [ACT] for the purpose of framing of the charge. The Apex Court in the case of [PRECEDENT], has ruled that the charges can be framed when there exists a strong suspicion but it is also a trait that the Court must come to a prima facie finding that there exists some material therefor.
In the present case there exists material against the applicant. In fact, as noted from his counsel's submissions, he questions the wisdom of the Court below that since the first complaint which was filed by the complainant privately was disposed of by the learend Magistrate under [SECTION] of the [ACT] and the revision filed against the said order was withdrawn, the present prosecution case is required to be dropped.
12. At the cost of repetition, it is observed that the first case of the complainant was not decided by the learned Magistrate on 11 [CASE NUMBER] its merit and as observed in the preceding paragraphs, inv eiw of the principles of the Hon'ble Apex in the case of [ENTITY], (supra), the submissions of the learned counsel are devoid of any substance.
13. The charge-sheet which is filed on record clearly shows that the prosecution has made out a prima facie case against the applicant. The degree of evidence for deciding the application for discharge and trial on merit are altogether different. What is required to be seen by the Court is as to whether the prosecution is able to point out that there is some material by which the charge could be framed against the accused.
14. It is not in dispute on the part of the present applicant that the pit was dug at his behest in discharge of Government contract entrusted to him. When a pit is dug, which admeasures about 10 X 12 ft. and 10 ft. deep and 15 ft. well inside it, it was expected from the present applicant to take necessary precaution by putting some fencing or by deputing some person to give caution to the passersby.
12 [CASE NUMBER] Nothing that sort of has been done by the applicant. The submission of the learned counsel for the applicant that there was no reason for those two unfortunate boys to go there near the pit since their school is situated far away from the pit is also absolutely atrocious and that shows that the applicant has scant respect for the human life.
The learned counsel for the applicant invited my attention to ground (e) of the grounds which states that it was not possible for the applicant to erect fencing over said 1.5 km. Cut of Trend. Further, he has stated that the applicant had put a caution board over the site in respect of the restricted area.
In my view, this is the defence of the applicant which can be tested only during the course of trial. The verdict of the trial will only decide whether the applicant was negligent or not. However, since prima facie material is available to show that the applicant was negligent. This is not the stage where the Court should consider the defence of the applicant.
In that view of the matter, I find no merit in the present revision. The same therefore dismissed.
Rule is discharged. No order as to costs.
JUDGE kahale