1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 42 OF 2009 1. Prof. Gurinder Singh S/o Shri Gurbaksh Singh Director Amity Business School, Amity Campus, Sector-44, Noida, U.P. - 201 303 2. Ms. Paras Gandhi, D/o Shri R. P. Sarna, Amity Business School, Amity Campus, Sector-44, Noida, U.P. - 201 303. 3. Mr. Debashish Choudhary, S/o Maj. General(Retd.) DRP Choudhary, Amity Business School, Amity Campus, Sector-44, Noida, U.P. - 201 303. 4. Mr. Sanjay Negi S/o Shri R. S. Negi R/o 33-B Dhawal Giri Apartments, B-12 A, Sector-34, Noida, U.P. ... Petitioners versus 1. State of Goa Through the learned Public Prosecutor, Altinho, Panaji, Goa. 2. Mr. Ajay Kumar Shah, 4B-132/1343, Budh Vihar, Delhi Road, Moaradabad. ... Respondents 2 Shri A. N. S. Nadkarni, Senior Advocate with Shri D. Lawande, Advocate for the Petitioners. Shri C. A. Ferreira, Public Prosecutor for Respondent No.1. Shri J. P. D'Souza with Shri Poulekar, Advocates for Respondent No.3. CORAM : N. A. BRITTO, J. DATE : 6TH SEPTEMBER, 2010. JUDGMENT This petition can be considered under Section 482 of the Code (Code of Criminal Procedure, 1973), and is essentially directed against Order dated 8-3-2007 of the learned J.M.F.C., Mapusa (Magistrate, for short) issuing process against the petitioners-accused under Section 304-A I.P.C. 2. The petitioners herein are accused nos. 3 to 6 in C. C. No.115/2006, and are members of the teaching faculty of Amity Business School situated at Noida, U.P., the first petitioner being its Director as well. The Respondent No.3 is the Complainant, and is the father of one Atharv Shah, one of the five students who died in the tragic incident which took place off Candolim Beach in the State of Goa on 25-8-2003. The petitioners accompanied by about 357 under graduate and post graduate students of the said school reached Goa on 25-8-2003 on an excursion and stayed at Highland Beach Resort at Candolim and till about 3.00 p.m., the students underwent a 3 classroom study and thereafter a group of about 200 students went to the Candolim beach when the said Atharv Shah, the son of the Complainant along with four others were swept out into the sea by a massive wave and died due to drowning, and the deaths having so occurred were subsequently certified by Dr. Shri Siddhartha Banaulikar. 3. Earlier, an information was received at Calangute Police Station at about 17.40 hours from the Police Control Room that about three boys were getting drowned near the Candolim beach. Police Inspector Shri Madkaikar alongwith staff reached the scene. A search was launched but nothing fruitful came out of it except the dead bodies of the said five students, namely Atharv Shah, Agraj Maheshwari, Saurav Chawan, Javeed Iqbal and Hitesh Chandiramani. The Police Inspector Shri Madkaikar conducted an inquiry after recording certain statements and submitted his report dated 27-4-2004 to the Sub Divisional Magistrate stating that the death of the said students was accidental due to drowning in the sea waters, and, therefore appropriate summary be granted, and the Sub Divisional Magistrate was pleased to accept the said report by his Order dated 4-1-2007. In other words, the Police were satisfied that there was no foul play in the deaths of the said five students, admittedly all majors, and classified the case U.D. No.36/2003 as one of accidental deaths. The 4 report shows that the students who went to the beach went without the knowledge of the accused. 4. Some more facts are required to be stated to dispose off this petition. 5. The Complainant along with two other parents approached the Delhi High Court in Writ Petition No.7364/2003 seeking various reliefs which Writ Petition came to be disposed of by Judgment dated 29-9-2004, inter alia, observing that in case the petitioners were interested in prosecuting the petition it was open for them to lodge a F.I.R. or file a complaint before the competent Court and also for compensation before appropriate forum. 6. The Complainant filed the complaint against six persons on 26-6-2006, and the Complainant was examined on oath on 4-8-2006 and 5-8-2006. Though, the duty of examining the Complainant under Section 200 of the Code is that of the learned Magistrate, the said examination of the Complainant was conducted through the advocate appearing for the Complainant. The Complainant examined Rajiv Ramani father of Hitesh Chandiramani on 26-9-2006 and Dr. Siddhartha Banaulikar on 28-12-2006 and then the Complainant sought several adjournments and by Order dated 8-3-2007, the learned Magistrate proceeded to discharge the accused nos.1 and 5 2 under Sections 201, 304-A and 491 I.P.C., and issued process against the accused under Section 304-A. 7. The petitioners-accused appeared before the Court on 17-9-2007 through Counsel and sought their exemption which was granted. On 20-12-2007 substance of accusation was explained to the accused through Counsel to which they pleaded not guilty. The case was posted for trial on 16-1-2008 but the Complainant did not attend. The case was again adjourned on 29-1-2008 and 18-2-2008 on which days, the Complainant again did not remain present, and this inspite of the fact that on 16-1-2008 a last opportunity was given to the Complainant to remain present. However, on 18-2-2008, instead of examining the Complainant, on behalf of the Complainant, Police Inspector Shri Madkaikar was examined, without a whisper from the learned Magistrate or for that matter from the accused, and even before completing the examination of the said Shri Madkaikar, the learned Magistrate proceeded to convert the summons case into warrant case and here again without any objection either from the Complainant or the accused. 8. The case was then adjourned at the request of the Complainant, and thereafter in the inquiry before charge, Dr. Banaulikar was examined on 18-8-2008, and Shri Umesh Maheshwari was examined on 16-4-2008. None 6 of the said witnesses were cross-examined on behalf of the accused, and the cross-examination appears to have been reserved to be conducted after framing of charge. Then came the Order dated 25-4-2008 by which the petitioners-accused came to be discharged, and which was challenged by the Complainant in Criminal Revision Application No.81 of 2008, and the learned Sessions Judge by his Order dated 5-5-2009 has been pleased to set aside the said Order dated 25-4-2008. 9. There is no dispute that the petitioners-accused had filed an application on 17-9-2007 for dismissal of the complaint but then withdrew the same on 4-12-2007 with permission to challenge the order of issuance of process at appropriate stage, and it is submitted on behalf of the petitioners that in fact the said application dated 17-9-2007 was filed for recalling of process in the light of the Judgment of the Apex Court in the case of K. M. Mathew v. State of Kerala and another(AIR 1992 SC 2206) but was withdrawn in the light of the subsequent Judgment of the Apex Court in the case of Adalat Prasad v. Rupal Zindal((2004) 22 ILD 425). There is also no dispute that both the parties chose not to challenge the Suo Motu Order dated 18-2-2008 converting the case from a summons case into a warrant triable case. It is also not known why the Complainant did not remain present on 18-2-2008 inspite of a last opportunity having been given to the Complainant on 16-1-2008 and on 29-1-2008, and why the Complainant instead of 7 examining himself chose to examine the said P. I. Madkaikar on 18-2-2008. Strange procedure seems to have been adopted by the Complainant as well as the learned Magistrate and that too without any objection from the accused. 10. Be that as it may, Shri A. N. S. Nadkarni, learned Senior Counsel appearing on behalf of the accused, submits that the present petition is essentially for quashing the complaint and the Order dated 8-3-2007 issuing process against the accused. Learned Senior Counsel submits that the anxiety of the Complainant is understandable on account of the death of his son but on that count, the petitioners could not have been prosecuted under Section 304-A. Learned Senior Counsel submits that as per the Complainant, the accused were told to go to the beach and they were all majors, and in such a situation no negligence could be attributed to any of the accused. Shri Nadkarni, learned Senior Counsel submits that the only allegation in the complaint is that the accused told the students "go and enjoy on the beach" and that the other averments in the complaint did not at all disclose an offence under Section 304-A. Learned Senior Counsel submits that the degree of care which was required in case of major students would not be the same as would be required in the case of small children, and the students being all majors would have known what was the danger. Learned Senior Counsel submits that if the boys were on the beach, and if a wave came and swept them into the waters then certainly the teachers could not be held responsible or liable for 8 their deaths. Learned Senior Counsel submits that the findings of the learned Magistrate in Order dated 25-4-2008 are unassailable. 11. On the other hand, Shri J. P. D'Souza, learned Counsel appearing on behalf of the Complainant, submits that the remedy under Section 482 of the Code is not available to the accused and their remedy, if any, would be by way of revision which would otherwise be time barred. Learned Counsel submits that substance of accusation was framed on 20-12-2007, and there was no challenge thrown at the said Order. Learned Counsel submits that the learned Magistrate would not have relied on the report of the learned SDM which was not produced before him. Learned Counsel submits that since neither of the parties had challenged the Order dated 18-2-2008 converting the summons case into a warrant case, the trial has necessarily to go on as rightly ordered by the learned Sessions Judge and at the trial the Complainant will examine witnesses and prove negligence on the part of the accused. Learned Counsel submits that it is not now open to the accused to challenge the said Order issuing process against the accused as the said Order has now merged into the Order dated 20-12-2007 explaining substance of accusation and Order dated 18-2-2008 converting the summons case into a warrant case and which in turn have merged in the Order of the learned Sessions Judge. Learned Counsel submits that the fact that the students were sent to the beach without any supervision was sufficient to conclude that the accused were negligent. 9 12. From the submissions made, three points are required to be considered by this Court. A(i). The first is whether the present petition ought to be entertained by this Court under Section 482 of the Code. There can be no dispute now that against an Order issuing process two remedies are available to an accused person. One could be termed as ordinary remedy under Section 397 of the Code and the other could be termed as extraordinary remedy under Section 482 of the Code. Section 397 of the Code has conferred revisional jurisdiction on this Court as well as the Court of Sessions, to call for and examine the record of any proceeding before any inferior Criminal Court situated within its local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court. As held by me by Judgment dated 23-12-2004 in Criminal Revision Application No.28 of 2004 in the case of Jeetendra R. Deshprabhu v. Laxmikant Yeshwant Pareshekar and others when revisional jurisdiction has been conferred concurrently on two Courts, namely the Court of Sessions and this Court, it is the choice of this Court, as a superior Court whether a revision petition should be entertained by it or not by allowing a party to by-pass the inferior Court. It was also observed that it is unwritten law settled by the propriety and practice that a party should ordinarily approach the Court of Sessions first, in revisional jurisdiction or in other words, a party should not be 10 allowed to by-pass the Court of Sessions and approach the High Court in revisional jurisdiction. Whether a party should be allowed to invoke an extraordinary jurisdiction of this Court under Section 482 of the Code is again, in my opinion, the choice of this Court in cases where the situation is extraordinary and exceptional. Section 482 of the Code saves inherent powers of the High Court and provides that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In Raj Kapoor and others v. State and others((1980) 1 SCC 43) the Hon'ble Supreme Court has stated that the availability of revisional jurisdiction under Section 397 of the Code does not exclude the jurisdiction under Section 482 of the Code and that the Court should exercise its inherent jurisdiction only in extraordinary situations(emphasis supplied). In the case of State, through Special Cell New Delhi v. Navjot Sabdhu((2003) 6 SCC 641) the Apex Court has held that the inherent power under Section 482 of the Code overrides other provisions including Section 397 of the Code but the remedy under it is not to be exercised when a remedy under the Code or other statute is available. The Court further held that inherent power is to be used only in cases where there is an abuse of process of Court or where interference is absolutely necessary for securing the ends of justice and it must be exercised very sparingly as cases which require interference would be few and far 11 between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Again, in Zandu Pharmaceutical Works Ltd. v. Mohd, Sharaflal Haque and another((2005) 1 SCC 122) the Apex Court has reiterated the principle that the exercise of power under Section 482 is an exception and not a rule and that is to be exercised ex debito justitia to do real and substantial justice for which the Court alone exists.(See unreported Judgment dated 6-4-2005 in Criminal Miscellaneous Application No.52 of 2005 in the case of Dr. Mohan N. Bhawe v. M/s. Travel Force and another. In the case of Shyam Lachmandas Ajwani v. State of Maharashtra(CDJ 1990 BHC 671)/1991 Cr.L.J. 970) this Court observed that Section 482 of the Code relates to inherent powers of this Court which are conferred to see that there is no abuse of the process of the Court. The Court further observed that if there is an inordinate delay or laches in the prosecution without progress in the same, it would amount to harassment of the petitioner and an abuse of the process of the Court warranting interference under Section 482. After referring to a number of cases decided by the Apex Court, it was observed by this Court that the test with which we should be concerned is whether the allegations in the complaint even if they are taken at their face value and accepted in their entirety do not constitute the offence alleged against the petitioner without involving any question of appreciation as such which test was reiterated by the 12 Apex Court in the case of Nagawa v. Veeramma(AIR 1976 SC 1947). In M/s. Kunstocom Electronics(I) Pvt. Ltd. v. Gilt Pack Ltd. and another(AIR 2002 SC 739) the Apex Court referred to its earlier case of Ashok Chaturvedi v. Shitul H. Chanchani((1998) 7 SC 698) and observed that the propriety of the order of the Magistrate taking cognizance and issuing process need not necessarily wait till the stage of framing of charge merely because an accused has a right to plead at the time of framing of charges as provided in Section 245 of the Code, and he is not debarred from approaching the Court even at an earlier point of time when the Magistrate takes cognizance of the offence and summons the accused to appear and contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition. The Apex Court also observed that it was held in a number of cases that power under Section 482 has to be exercised sparingly and in the interest of justice but allowing the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of Court, and, therefore there cannot be any dispute that in such case power under Section 482 of the Code can be exercised. A similar view was expressed in Keki Hormusji Gharda and others v Mehervan Rustom Irani and another((2009) 6 SCC 475) wherein the Apex Court observed that even if a remedy of discharge was available it did not mean that the High Court would 13 refuse to exercise jurisdiction under Section 482 of the Code where allegations made in the complaint even taken at face value to be correct in its entirety, they do not disclose the offence. In the case of Rukmini Narvekar v. Vijaya Satardekar and others((2009) 1 SCC(Cri) 721) the Apex Court has reiterated the law laid down in the case of State of Haryana v. Bhajan Lal(1992 SCC(Cri) 426) as well as Pepsi Foods Ltd. v. Judicial Magistrate(1998 SCC(Cri) 1400). In the case of State of Haryana v. Bhajan Lal(supra) certain illustrations were given as to when inherent powers under Section 482 of the Code could be exercised by this Court, one of them is whether 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 and the other is 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. As regards the delay, learned Senior Counsel has placed reliance on the case of Central Bureau of Investigation v. Akhilesh Singh((2005) 1 SCC 478) wherein one of the accused had challenged the framing of charges against him after considerable delay. The contention raised was that the High Court had exercised jurisdiction under Section 482 after long lapse of time. It appears that the order of discharge passed in favour of the main accused had attained finality only in the year 1994 when the Apex Court had dismissed the special leave petition, that 14 the accused had approached the Court with an application under Section 482 of the Code and the learned Single Judge had condoned the delay and the Apex Court felt that the power exercised by the High Court did not suffer from any illegality or perversity. In Keki Hormusji Gharda and others v. Mehervan Rustom Irani and another(supra) the Apex Court also observed that there might have been some delay on the part of the appellants in approaching the High Court but while adjusting equity the High Court was required to take into consideration the fact that in a case of this nature the appellants would face harassment although the allegations contained in the complaint petition even assuming to be correct were trivial in nature. (ii) Considering the facts of the case and the law as stated, in my view, this is a fit case to exercise the jurisdiction under Section 482 of the Code notwithstanding that there is some delay on the part of the petitioners in approaching this Court against Order dated 8-3-2007 as the allegations in the complaint do not at all disclose an offence punishable under Section 304-A I.P.C. and proceeding with the complaint in such a case would amount to abuse of the process of the Court. B(i). Regarding the second point, in my opinion, the doctrine of merger is not at all applicable to the facts of the case. The accused had only filed an application for recalling of process and had withdrawn the same with 15 liberty to challenge the Order dated 8-3-2007 at appropriate stage. That order issuing process was not challenged either before this Court or the Court of Sessions, earlier. Only in case the Sessions Court or for that matter this Court had pronounced on the merits or demerits of the said order that the doctrine of merger would be applicable. The doctrine of merger has been explained by the Apex Court in Kunhayammed and others v. State of Kerala and another (AIR 1989 SC 674). To merge means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. The Apex Court has further stated that the doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. The Court referred to the Commissioner of Income-Tax v. M/s. Amritlal Bhogilal and Co.(AIR 1958 SC 868) and reiterated that if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or 16 affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appelate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement. In M/s Gojer Brothers Pvt. Ltd. v. Shri Ratanlal(AIR 1974 SC 1380) the Apex Court made it clear that so far as merger is concerned on principle there is no distinction between an order of reversal or modification or an order of confirmation passed by the appellate authority; in all the three cases the order passed by the lower authority shall merge in the order passed by the appellate authority whatsoever be its decision whether of reversal or modification or only confirmation. In S. S. Rathor v. State of Madhya Pradesh(AIR 1990 SC 10) a seven Judge Bench of the Apex Court reviewed the available decisions of the Supreme Court on the doctrine of merger and held that the distinction made between courts and tribunals as regards the applicability of doctrine of merger is without any legal justification; where a statutory remedy was provided against an adverse order in a service dispute and that remedy was availed, the limitation for filing a suit challenging the adverse order would commence not from the date of the original adverse order but on the date when the order of the higher authority disposing of the statutory remedy was passed. The logic underlying the doctrine of merger is that there cannot be more than once decree or operative orders governing the same subject-matter at a given point of time When a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior 17