IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.46393 of 2007 1. ASHUTOSH KUMAR MISHRA, SON OF LATE SHRI GOPAL MISHRA, RESIDENT OF MOHALLA – MADHOPUR, P.S. GORAKHNATH, DISTRICT GORAKHPUR (U.P.). 2. PROBIR ACHERJEE, SON OF LATE SHRI SHYMA PADAR ACHERJEE, RESIDENT OF VILLAGE – ORGRAM, P.S. BHATAR, DISTRICT – BURDWAN (W.BENGAL). 3. ASHOK KUMAR SAXENA, SON OF SHRI RAM CHANDRA SAXENA, RESIDENT OF 306, SARAI THOAK (WEST), P.S.- TOWN, DISTRICT – HARDOI (U.P.). Versus STATE OF BIHAR ----------- For the Petitioners : M/S Ranjit Sahay, Advocate Syed M.Ashraf,Advocate For the State : Mr. Jhakhandi Upadhyaya,A.P.P. ----------- 6. 15.3.2010. 27 passengers of reserved Bogie No.S8 of Train No.3071 UP Howrah Bhagalpur Super Express on way to their destination were killed, several received serious injuries due to act of omission or commission on the part of accused persons which include these petitioners, still the petitioners (accused persons) succeeded in stalling the criminal proceeding at very initial stage by way of challenging an order of cognizance and obtaining an interim order of stay of proceedings in Bhagalpur G.R. P.S. Case No.61 of 2006. Out of 27 dead passengers, 17 were female, 8 male, 1 female child and 1 male child. Occurrence in the present case had taken place on 2nd December,2006. On the same - 2 - day, F.I.R. was registered against accused persons including these petitioners and after investigation, police submitted charge sheet against four accused persons including the petitioners and further investigation was kept pending. On the basis of police report, the learned Railway Judicial Magistrate, Bhagalpur by its order dated 24.8.2007 took cognizance of offences as per the charge sheet i.e. offences under Sections 287, 288, 336, 337, 338, 427 of the Indian Penal Code. However, differing with the offence under Section 304A/34 of the I.P.C., which was in the charge sheet, the learned Magistrate took cognizance for the offence under Section 304/34 of the Indian Penal Code and this difference resulted in the filing of present petition before this Court under Section 482 of the Code of Criminal Procedure. The petitioners filed the present petition on 4.10.2007 before this Court and by order dated 30.1.2008, further proceeding of Bhagalpur G.R. P.S. Case No.61 of 2006 has been ordered to remain stayed. 2. It appears that the petitioners - 3 - were exempted from their physical appearance till the submission of the charge sheet vide order dated 5.1.2007 passed by the court below. Accordingly, after taking cognizance under Section 304/34 of the Indian Penal Code besides cognizance order under Sections 287, 288, 336, 337, 338 and 427 of the Indian Penal code, the learned Magistrate directed all the accused persons to appear before the court on 14.9.2007. It was also ordered to issue notice to the accused persons as to why their bail bonds be not cancelled after taking cognizance under Section 304/34 of the Indian Penal code besides other Sections of the Indian Penal Code as mentioned above. 3. Short facts of the case is that on 2.12.2006 at about 7.50 A.M.,an old railway bridge(Ulta Pool)collapsed on a bogie of 3071 UP Howrah Jamalpur Super Express as a result of which 27 passengers died and several received serious injuries. It appears from the F.I.R. that the demolition of the said Ulta bridge had commenced on 24.11.2007 under the control of Deputy Chief Enginer (Construction), Bhagalpur and under the - 4 - supervision of Assistant Engineer (Construction), Bhagalpur, Junior Engineer (Construction), Bhagalpur and said work was being executed by a contractor, namely, M/S Vijay Kumar Enterprises. While the work was in progress on 30.11.2006 at about 11.00 P.M. out of three spans (Domes), North and middle span with north pillar collapsed causing stoppage of traffic movement. However, none received any injury in the said collapse. The traffic was restored on 1.12.2006 at about 7.30 A.M. after arrival of the D.R.M. (Divisional Railway Manager), Maldah. As per F.I.R. at the time of restoration of traffic on 1.12.2006, the southern span and southern pillar of the said Ulta Pool was in existence and it was expected that any prudent man would have considered that remaining portion of the said bridge was likely to fall at any time. Even without taking any lesson from the event of 30.11.2006 and also without taking any step or measure by the Senior Railway Officers at the spot like erection of a protective structure to prevent the collapse of remaining portion of the bridge the - 5 - execution of the work continued and while the unfortunate passenger train was crawling near the bridge, the portion of the bridge collapsed and in that occurrence, 27 passengers were killed. Accordingly, F.I.R. for the offence under Sections 287, 288, 336, 337, 338, 427, 304A/34 of the Indian Penal Code vide Bhagalpur G.R. P.S. Case No.61 of 2006 was registered on 2.12.2006 on self statement of Officer-in-charge of G.R. P.S. Bhagalpur against accused persons including these petitioners. After investigation and collecting materials showing involvement of accused persons, police submitted charge sheet on 21.8.2007 for the offence under Sections 287, 288, 336, 337, 338, 427, 304A/34 of the Indian penal Code. Charge sheet was submitted against four accused persons including petitioners and further investigation continued. After filing of the charge sheet, the learned Railway Magistrate, Bhagalpur examined the materials available on record including statement of witnesses recorded under Section 161 of the Cr.P.C. The learned Magistrate in agreement with the - 6 - charge sheet took cognizance for offence under Sections 287, 288, 336, 337, 338, 427 of the Indian Penal code. However, the learned Magistrate differed with the police report on the point of offence under Section 304A/34 of the Indian Penal Code. The learned Magistrate instead of Section 304A/34 of I.P.C. took cognizance of the offence under Section 304/34 of the Indian Penal Code and other Sections, which were mentioned in the charge sheet. 4. Oblivious with the fact that in the Code of Criminal Procedure itself, there were several remedies available to the petitioners, they directly rushed to this Court by way of invoking inherent jurisdiction of this Court under Section 482 of the Cr.P.C. 5. Learned counsel for the petitioners, while pressing the present petition, was not serious in challenging the order of cognizance taken for the offence under Sections 287, 288, 336, 337, 338, 427 of I.P.C., but he submitted that cognizance for the offence under Section 304/34 of the - 7 - Indian Penal Code was contrary to the materials available on record. He submitted that the order of cognizance for the offence under Section 304/34 of I.P.C. was illegal. He also submitted that once the police had submitted charge sheet on the basis of materials available on rewcord for the offence under Section 304A/34 of I.P.C., the learned Magistrate has grossly earned in differing with the charge sheet and taking cognizance for the offence under Section 304/34 of the I.P.C. He submits that since offence under Section 304 I.P.C. is non- bailable offence and triable by the court of Sessions, the petitioners, without any material, would be highly prejudice if they are compelled to face trial under a procedure of Sessions Trial. According to him, the materials available on record indicates that the petitioners for the alleged offences would have been put in a magisterial trial and as such the learned Magistrate has grossly erred in taking cognizance under Section 304/34 of the Indian Penal Code. 6. I have also heard learned - 8 - Additional Public prosecutor. He vehemently opposed the prayer of the petitioners and submitted that the petitioners are not entitled to invoke inherent jurisdiction of this Court under Section 482 of the Cr.P.C., which, according to him, is to be invoked in exceptional and rarest of rare cases. He further submits that though there is no error in the order of cognizance, the petitioners were having remedies available in the Code of Criminal Procedure. He also submits that it is not a case where it can be said that the court below has abused its process. On these grounds, learned A.P.P. has made a prayer to reject the petition filed by the petitioners. 7. I have examined the record and also the impugned order. Prima facie, I am satisfied that there is no infirmity in the order of cognizance. It is made clear that the Code of Criminal Procedure is a self contained Code and describes several stages to raise grievance before concerned court. So far as competence of the Magistrate in differing with the recommendation of the police i.e. charge sheet is concerned, I am - 9 - of the view that the Magistrate has ample power to differ with the report submitted by the police and on the basis of materials available on record, he can pass an appropriate order. In the present case, the police submitted charge sheet for the offences under Sections 287, 288, 336, 337, 338, 427, 304A/34 of the Indian Penal Code. However, the learned Magistrate, while agreeing with the charge sheet for the offence under Sections 287, 288, 336, 337, 338 and 427 of I.P.C., further took cognizance for the offence under Section 304/34 of the I.P.C. instead of offence under Section 304A/34 of the I.P.C. 8. In the present case, after the order of cognizance, if the petitioners were aggrieved, they would have raised this point firstly at the time of committal proceeding under Section 209 of the Cr.P.C. For just decision in the matter, it is necessary to quote Section 209 of the Cr.P.C., which is as follows : “ 209. Commitment of case to Court of Session when offence is - 10 - triable exclusively by it.- When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall- (a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, - 11 - which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session.” 9. Even after completion of committal proceeding, at the stage of charge, the petitioners were having a right to file a discharge petition and at that stage, they would have prayed before the court that materials are not sufficient warranting framing of the charge under Section 304/34 of the Indian Penal Code and thereafter, the learned Sessions Judge was having ample power to frame charge even for the offence, which were triable by a Magistrate and he would have sent back the case to the court of Magistrate after framing of the charges. Section 228 (1)(a) of the Cr.P.C. is very much evident on this very point and for the sake of convenience, it is necessary to quote the same :- “ 228. Framing of charge.-(1) If, after such consideration and hearing as aforesaid, the Judge - 12 - 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, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report.” 10. In view of aforesaid statutory provisions, the petitioners were having aforesaid remedies available in the Code of - 13 - Criminal Procedure. Instead of exhausting those remedies, the petitioners directly rushed to this Court under Section 482 of the Cr.P.C. So far as exercise of power under Section 482 of the Cr.P.C. is concerned, time without number, it has been reiterated that this power is to be exercised in exceptional and rarest of rare cases. Meaning thereby that if the petitioners were having remedies available to them before the court below, they were not entitled to bye-pass the said remedies. However, the petitioners, even at such initial stage, approached this Court and stalled the proceeding for quite a long time. 11. Repeatedly, it has been held that at initial or interlocutory stage of a criminal proceeding, superior courts should refrain from interfering. Even the Hon’ble Supreme Court was constrained to admonish superior courts not to interfere at such stages. In the present case, it is not in dispute that out of three petitioners, one petitioner was occupying a high post i.e. post of Deputy Chief Engineer (Construction), Eastern Railway,Bhagalpur. In a case reported - 14 - in 1995 Criminal Law Journal 2935 (G.N. Hegre Vs. S. Bangrappa, the Hon’ble Supreme Court had reiterated and quoted the observation of Krishna Ayyar,J. in its judgment at paragraph-18. I cannot do better than to quote the same : “ It is common knowledge that currently in our country criminal Courts excel in slow- motion. The procedure is dilatory, the dockets are heavy, even the service of process is delayed and, still more exasperating, there are appeals upon appeals and revisions and supervisory jurisdiction baffling and baulking speedy termination of prosecution .....”. The slow-motion becomes much slow-motion when politically powerful or rich and influential persons figure as accused. F.I.Rs. are quashed. Charges are quashed. Interlocutory orders are - 15 - interfered with. At every step, there will be revision and applications for quashing and writ petitions. In short, no progress is ever allowed to be made. And if ever the case reaches the stage of trial after all these interruptions, the time would have taken its own toll; the witnesses are won over; evidence disappears; the prosecution loses interest-the result is an all too familiar one. We are sad to say that repeated admonitions of this Court have not deterred superior Courts from interfering at initial or interlocutory stages of criminal cases. Such interference should be only in exceptional cases where the interests of justice demand it; it cannot be a matter of course.” 12. In view of the facts and - 16 - N.H./ circumstances mentioned hereinabove, I am of the view that the present case cannot be considered as an exceptional case. I find no merit in the present petition and, accordingly, petition stands rejected. Since in the present case, order of cognizance dated 24.8.2007 was stayed by this Court by its order dated 30.1.2008, it is desirable to direct the court below to expedite the case. 13. With above observation and direction, the petition stands rejected. The interim order dated 1.8.2008 stands automatically vacated. 14. Let this order be communicated to the court below forthwith. ( Rakesh Kumar,J.)