1 Appln 4395-2006 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4395 OF 2006 Sanjay Leela Bhansali .Applicant V/s. The State of Maharashtra & ors .Respondents Mr.Niteen Pradhan i/b. Ms S.D.Khot, Advocate, for the Applicant Mr.Rakeshkumar with Vijayendra Jabra, Ms Sonikumari & Ms Laxmi Shukla, Advocate, for Respondent No.6 Mr.J.P.Kharge, APP, for Respondent No.1  State CORAM : R.C.CHAVAN, J. ORDER RESERVED ON : 21ST JANUARY, 2011 ORDER PRONOUNCED ON : 7TH MARCH, 2011 P.C. . This application seeks quashing of record and proceeding in Special Case No. 1880/2006 pending before the learned 26th Metropolitan Magistrate, Borivali, Mumbai. 2. This application was admitted by Order dated 13th July, 2007. By Order dated 6th 2 Appln 4395-2006 February, 2009 the Supreme Court had requested this Court to expedite hearing of the Petition. This is how the application has been taken up for expeditious hearing. 3. Facts which are material for deciding this application are as under :- The applicant had floated a special purpose vehicle (SPV) - a Private Limited Company - for the production of a Hindi film by name Black , sometime in July, 2003. Shooting of the film took place in a studio provided by the Maharashtra State Film and Cultural Development Corporation. One of the sets constructed was to be the interior of a house in Shimla, where there was supposed to be a fireplace. On 18th February, 2004, there was a fire on the sets which was extinguished by the fire brigade. A report was made to the police and police performed panchanama which showed presence of two LPG Cylinders, which are admittedly domestic LPG Cylinders. 3 Appln 4395-2006 Respondent No.6 Farida Hoosenally had been engaged to provide some property for the purpose of shooting and her property got damaged in the fire. 4. Some time in April and May, 2005, respondent No.6 Farida Hoosenally filed a complaint at Dadar Police Station against the applicant and others. On 12th August, 2005, another complaint was made by respondent No.6 Farida Hoosenally at Aarey Police Station for the offence punishable under Section 327 read with 10 and 10A of the Essential Commodities Act, read with Clause 3 of LPG (Regulation of Supply And Distribution) Order 2000. On 24th October, 2005, respondent No.6 made another complaint against the applicant for the offence punishable under Sections 3 and 7 of the Essential Commodities Act. On 24th February, 2006, respondent No.6 filed a complaint bearing No.C.C.No.43/M/2006 in the Court of the learned Metropolitan Magistrate, 4 Appln 4395-2006 26th Court, Borivali against the applicant and others under Sections 3, 7, 10 and 10A of the Essential Commodities Act read with Clause 3 of LPG (Regulation of Supply And Distribution) Order 2000. Respondent No.6 filed an application before the learned Magistrate for ordering investigation under Section 156(3) of the Code of Criminal Procedure. However, the learned Magistrate called for papers of enquiry made by Aarey Police Station. 5. Respondent No.6 then filed a Writ Petition bearing No.626 of 2006 challenging the Order of the Magistrate refusing enquiry under Section 156(3) of the Code of Criminal Procedure. This Court directed the Magistrate to proceed further after hearing the complainant and others, taking into account police report and pass appropriate orders according to law. Thereafter, on 6th June, 2006, the learned Magistrate directed investigation under Section 156(3) of the Code 5 Appln 4395-2006 of Criminal Procedure, holding that he was supposed to consider police report which would come only after investigation under Section 156(3). Thereupon, an FIR bearing No.2 of 2006 was registered at Aarey Police Station. Police filed an interim report on 18th September, 2006 about the investigation carried on till then. On 19th September, 2006, Goregaon police issued summons to the applicant and others asking them to remain present for the purpose of filing charge sheet which was eventually filed on 6th November, 2006. In this context, the applicant has filed the present application for quashing those proceedings. 6. The investigation does not disclose that the fire started or was flared up on account of LPG Cylinders at the sets. The cause of fire was a short circuit and there was lot of other inflammable material on the site. Therefore, bringing the LPG Cylinders 6 Appln 4395-2006 on the sets cannot be a cause for Criminal prosecution for negligence or mischief by fire, irrespective of whether the Cylinders were used for the fireplace scene or only for serving tea and refreshments to participants. 7. The prosecution is launched mainly because the Cylinders used were domestic LPG Cylinders put to commercial use in violation of Clause 3 of LPG (Regulation of Supply And Distribution) Order 2000. There can be no dispute that such violation, if it would be attributed to the applicant, would make the applicant liable to punishment in view of provisions of Sections 3, 7 and 10A of the Essential Commodities Act. Therefore, the question is whether there is a grave suspicion or strong probability that the act of using domestic LPG Cylinders on the sets could be attributed to the applicant, since grave suspicion would be enough to put the applicant to trial and it would be impermissible at a 7 Appln 4395-2006 pre-trial stage to seek proof beyond reasonable doubt. 8. Before approaching this question, it may be useful to recall the limits of this enquiry as set out by various Judgments of the Supreme Court, on which the learned Counsel for parties relied, particularly, Judgment in STATE OF HARYANA AND OTHERS Versus BHAJANLAL AND OTHERS, reported at 1992 Supp(1)Supreme Court Cases 335. The observations in para 102 and 103 may be usefully reproduced as under :- 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced as above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or 8 Appln 4395-2006 otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 9 Appln 4395-2006 (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to 10 Appln 4395-2006 spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. 9. These principles have been reiterated in para 10 in STATE OF ORISSA AND ANOTHER Versus SAROJ KUMAR SAHOO, reported at (2005) 13 Supreme Court Cases 540 and para 8 in State of Karnataka v. M. Devendrappa and another, reported at AIR 2002 SUPREME COURT 671. It is not necessary to refer to other Judgments which restate these principles in different words. 11 Appln 4395-2006 10. On behalf of respondent No.6, it was pointed out in additional written submission on 21st January, 2011 that the following statements reveal that the domestic cylinders were brought on the set at the instructions of the producer and director Sanjay Leela Bhansali (Applicant). (1) Page 176 of the Application  statement of Anshuman Swami. (2) Page 179 of the Application - statement of Sushil Agrawal. (3) Page 182 of the Application - statement of G.K.Tulsani. (4) Page 327 of the Application - statement of Ashok Kumar Punilal Nisad. (5) Page 329 of the Application - statement of Niraj kumar Ambika Prasad Tiwari. (6) Page 331 of the Application - statement of Mohammad Shafique Mohammad Hussain Khan. (7) Page 237 of the Application - statement of R.P.Yadav (Asstt. Security Officer Filmcity) 11. Therefore, I tried to search in these statements any words of sentences indicating 12 Appln 4395-2006 that applicant had instructed bringing of domestic LPG Cylinders on set, but could find no such instructions. The learned Counsel for the applicant may be right in submitting that there is nothing to show that applicant had issued instructions to bring domestic LPG Cylinders (or for that matter any LPG Cylinders on the sets). 12. The applicant claims that he was the Director of the film and therefore, his role was basically creative and he was not concerned with details like which type of LPG Cylinder was brought on the sets. On behalf of respondent No.6, it is submitted that applicant was not just the Director of the film but also its Producer, since he had a substantial stake in the SPV which was floated for production of the film, which cannot be refuted. Therefore, it has to be found out as to what were the applicant's responsibilities in relation to activities on 13 Appln 4395-2006 the sets as the Director of the film and also a substantial stakeholder in its production, virtually the head of whole activity. Therefore, the question is whether as such head of the activity, applicant could be held responsible for use of domestic LPG Cylinders on sets. 13. Though the principle that the head of an institution must be responsible for all activities conducted by the said institution is salutory, it would be applicable more in Civil proceedings than in Criminal proceedings. For fastening Criminal liability to a person, the necessary mens rea-the intention-the mental state, must be shown to have existed in the person concerned. Therefore, in the absence of anything to show that the applicant had himself authorized or ordered bringing of LPG Cylinders much less domestic LPG Cylinders, it would be difficult to fasten the applicant with Criminal 14 Appln 4395-2006 liability in relation to breach of an order under the Essential Commodities Act. 14. In Sunshil Ansal vs. State through CBI, Delhi High Court was considering fire at Uphaar Cinema hall. It was contended by one of the Managers of the hall that a charge under Section 304 of the Indian Penal Code could not be made out against him. The High Court ruled out this plea observing that the person concerned was not only one of the Managers on duty but also he was callously indifferent to the compliance of rules, regulations and bye-laws meant for safety of the patrons, he had also failed to extend any help to the patrons; trapped in the balcony. He remain aloof and unconcerned when the patrons in the balcony were crying and shouting for help. He did not issue any instructions to any of the staff on duty. In the case at hand, there is nothing to show that the applicant was even aware that any 15 Appln 4395-2006 domestic LPG Cylinder had been brought on the sets or that he turned Nelson's eye when such Cylinders were being brought or used, far from there being any material to show that he had ordered domestic LPG Cylinder to be brought on sets as it would cut costs. Therefore, it would be difficult to fasten any vicarious liability relating to the breach of rule 3 of LPG Order 2000 issued under the Essential Commodities Act. This is apart from the fact that Clause 3 of the LPG Order 2000 which has invoked places restrictions on persons having connection for domestic LPG Gas and to distributors of such LPG Cylinder. It is not clear as to how the order could be invoked to fasten liability on the applicant, who is not even alleged to have been the person to whom the Cylinders in question had been provided for domestic use. 15. In the context of the fact that Civil litigation is being pursued by respondent No.6 16 Appln 4395-2006 against the applicant particularly because there was loss caused to her property because of the fire, it may not be unreasonable to infer that these Criminal proceedings are being taken out as a arm twisting measure and are therefore, untenable. 16. In view of this, the proceedings pending before the 26th Metropolitan Magistrate, Borivali, Mumbai in C.C.No. 1800/S/2006 against the applicant cannot be allowed to be continued in the light of the first principle laid down by the Supreme Court in BHAJANLAL's case quoted in preceeding paragraph. 17. Criminal Application is, therefore, allowed & the proceedings bearing C.C.No. 1800/PS/2006 are quashed and set aside. (R.C.CHAVAN, J.)