XNTHE HIGH COURT OF .IUBICATURE AT BILASPUR. Cr.M.P. No.^ of 2010 sn Ronc PETITIONER ,,..--^: Chief Executive Officer =^=<y eim-i-sre o'< 3ii HSiW i<t>,'<!• ^^••^•^.f-. ^•^ -^^ V: -'•"\ .V;' ~>-"'--^.^'^1^. <r^ ...-'",.-•:^^'yrvs ..»•: Bharat Aluminium Company Ltd. BALCO Nagar, Korba. C.G. State of Chhattisgarh, through the Station House Officer, Police Station Balco Nagar, Korba (CG) RESPONDENT PETITION UNDER SECTION 4g2 OF THE CODE QF^CRIMINAL PROCEDURE. 1973 AGAINST THE ORDER DATED 23.07.2010r DIRECTING THE PETITIONER CEO BALCO TO APPEAR IN PERSON AND SUBMIT IN WRITING ABOUT HIS RESPONSIBILITY REGARDING AUTHORISED CHIMNEY CONSTRUCTION RELATED DOCUMENTS ON 31.07.2010. (/" PASSED BY LEARNED 2ND ADDITIONA1- SESSIQNS JUDGE fFTCLKORBA, PRESIDED OVER BY SHRI M.D.' JAGDALLA IN S.T N0.16/10 ^ i?' ra [ 't HiGH COURT OF CHHATTISGARH : BILASPUR SiNGLE BENCH : HON'BLE SHRi MANiNDRA MOHAN SHR1VASTAVA.J. PETiTiONER RESPONDENT Cr.M.P.No.489/10 Chief Executive Orficer, BALCO, Korba Versus State of Chhattisgarh Itt FOR PRONOUNCEMENT OF ORDER ON /6 DECEMBER,2011 Sd/- Manindra Mohan Shrivastava Judge /^/•12/2011 ^ '^saa^ ^ „ ''^nSl'"~<^il:- ,.-^ -^ ^•s-^ 1 ;s®Sii I 'ysc^r' Jf cs^1' (.. HIGH COURT OF CHHATTISGARH : BiLASPUR Singie Bench: Hon'bie Shri Manindra Mohan Shrivastava, J, PETmONERS RESPONDENT Cr.M.P. No.489/2010 Chief Executive Officer, BALCO, Korba Versus State of Chhattisaarh PETITiON UNDER SECTION 482 OF THE CODE OF CRihflliNAL PROCEDURE Present: - Shri Surendra Singh, Senior Counsei aiong with Shri Abhishek Slnha, counsel for the petitloner. Shri Rakesh Jha, Deouty Government Advocate for the Siate. (Passed on ...,w.... December, 2011) This petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') has been fiied by the petitloner praying for quashing the order dated 23/07/10 by which^the fearned Second Additional Sessions Judge has issued summons, directing appearance of the petitioner to consider the role and responsibiiity of the petitioner in connection with ihe incident which has ied to registration of offence and submission of charge sheet before the Court. ,^- 2. The facts briefly stated are that on 23/09/09, a chimney, under construciion coilapsed resulting in death or number of iabourers as aiso destruction of property. A crime under Crime No.377/09 was registered by Baico Nagar Poiice Station, alleging commlssion of offence under Seciion [^y/ :i.-.l'.Z,-i5i'*' - ~^ 304/34 of the iPC against the officers and empioyees or the Bharat Aiuminum Company Ltd. (BALCO) and its contractors - GDCL. 3. Finding prima racie case against some of the officers of BALCO, offences were registered and they were arresfed aiso. After investigation, charge sheet was fiied in the Court aiieging commission of orfence as aforesaid against number of accused persons and the case was committed to the Sessions Court for trial by the Magistrafe. The poiice, iater on, filee a supplementary charge sheei on 8/4/2010 in which, the petitioner, who is the Chief Executive Officer of BALCO has been sited as witness and his statement under Section 161 of the Code has also been recorded. When the case was iisted before the Second Additional Sessions Judge, Korba, on 23/07/10, the Court has passed an order of issuance of summons to the petitioner to appear personaliy and submit his written reply with regard to his roie in the incident and documents reiating io construction of chimney. It is this part of the order, which is under chalienge in this petltion, 4. Learned senior counsel for the petitioner submitted that the impugned order directing the petitioner, who is a cited witness of the case, to appear personaiiy and submit his reply with regard to his responsibiiity in connection with the incident and produce documents relating to the construction of chimney, is iiiegal and in excess of jurisdiction. it has been contended that the petiiioner is neither an accused sent up by the police aiong with the charge sheet nor the Court has taken cognizance of the offence against him in any of the proceedings or any other order passed in .J! <-?r' the proceedings. Further submission is that the petitioner could not be summoned at this stage to submit his repiy in writlng because untess ihe charges are framed, the Court could not direct a witness to appear in the Court for giving evidence. Further contention is that even if the Court intended to examine the role of the petitioner and coiiect evidence in connection with the incident; that could also be done oniy after framing of charges and whiie examining the petitioner as a witness of the prosecution. In the submission of learned senior counsel, present is not a case where provisions of Sectlon 319 of the Code would be attracted because no evidence has been collected during trial. 5. On the other hand, iearned State counsei submits that the iearned Sessions Judge has ample jurisdiction to call a witness to give evidence before the Court in exercise of powers under Section 31 1 of the Code. He submits that such power could be exercised at any stage of enquiry, triai or other proceedings under the Code. Therefore, ihe petifioner couid be summoned straightway to submit in writing, his responsibility in connection with the incident of coiiapse of chimney and also produce, documents relating to construction of the chimney. Further submission is that the power of ihe Court is also traceable to the provisions conialned in Sectton 319oftheCode. 6. A perusal of the impugned order reveais that though the case was iisted for reply of apptication under Section 91 or CrPC and arguments thereon, the Court, upon perusai of the records and considering that three engineers have been made accused and for that reason, it has become necessary to examine the responsibiiity of the peiitioner in connection with the incident, suo motu, issued summons to the petitioner to appear personally and submit reply with regard to his responsibility and produce documents relating to construction of chimney. it could not be disputed before the Court that so far, no charges have been framed against the accused in the case. it is aiso not in dispute that the petitioner has been cited as witness by the prosecution and statements under Section 161 ofthe Code have been recorded. 7. Present is not a case where cognizance of the offence has aiso been taken against the petitioner. it is also not a case where by way of supplementary charge sheet, the petitioner has been sent up as an accused by the police under the same crime numoer and in connection with the offence aiieged in the charge sheet before the Court. In such a situation, when the petitioner is not an accused but oniy ciied as witness of the prosecution, summoning of the petitioner to record his statement or submission in writing in connection with his own role and responsibility in connection wiih the incident, to say the least, is not referabie tp any of the powers conferred on the Court under the statutorv scheme or the Code. 8. it being an admitted position that no charges so far have been framed aoainst the accused persons, the power under Section 311 of the Code couid not be exercised by the Court at this stage because the object and purpose of the powers conferred under Section 311 of the Code is to / invest the Court with ihe power to summon any person as a witness or to examine any person in attendance, though not summoned as a witness, or recali or re-examine any person already examined. it also castes duty on the Court to summon and examine or recail and re-examine any such person if his evidence appears to it to be essentia! to the just decision of the case. That being the scope and object of the provisions of iaw, calling the petitioner to give evidence at this stage when even charges have not been framed, is wholly unwarranted, apart from being without jurisdiction. An occasion to examine a witness would arise oniy after framing of cnarges and not at this early stage when charges have not been framed. 9. Though an attempt was made by iearned State eounsel to trace the power exercised by the Court below by refemng to provisions contained in Section 319 of the Code, i have no hesitatlon in hoiding that in the present circumstances, Section 319 CrPC is nof at ail attracted as heid by the Supreme Court in the case of Lok Ram v. N1 (2006) 10 SCC 182, wherein it has been held that the power to implead a person as accused could be exercised, ifthe Court is satisfied.at any stage or the proceedings on the evidence adduced that the persons who have not been arrayed as accused should face the triai. Evidently, an eventuaiity to exercise such power wouid arise only when during course of frial, evidence comes necessitating impieadment of a person as accused. 10. Learned State counset could not refer to any other provisions to which the power and jurisdiction to summon a witness even before framin.a. of charges and commencement of triai couid be exercised by the learned Sessions Judge. The order therefore appears to be clearly iiiegal and without jurisdiction and it has become imperative for this Court to exercise powers under Section 482 of the Code. 11. Accordingly, the impugned order dated 23/7/2010 is held iilegal and set aside. The petition is accordingiy allowed. Sd/- Manindra Mohan Shrivastava Judge Deepii ^