1 Criminal Writ Petition No.996/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.996 OF 2010 Vishwanath s/o Dagadu Hule, Age 44 years, Occ. Business, R/o Patoda, Manjar Sumba Road, Taluka Patoda, District Beed. ... PETITIONER VERSUS 1. State of Maharashtra, through Police Inspector, Police Station, Ashti (Copy to be served on P.P., High Court, Aurangabad) 2. The Superintendent of Police, Beed, District Beed. 3. Nitin Bapurao Dhoble, Age 27 years, R/o Sheri (Khu.), Taluka Ashti, District Beed. ... RESPONDENTS ..... Shri N.L. Jadhav, Advocate for petitioner Shri K.M. Suryawanshi, Advocate for respondent Nos.1 & 2 Shri Sachin Deshmukh, Advocate for respondent No.3. ..... CORAM : K.U. CHANDIWAL, J. DATE : 9th March, 2011 ORAL JUDGMENT : 1. Heard. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, taken up for final hearing at 2 Criminal Writ Petition No.996/2010 admission stage. 2. The petitioner questions propriety of prosecution in F.I.R. No. 77/2009, dated 30.4.2009, registered at Ashti Police Station for an offence under Sections 279, 304 (A), 338 and 431 of the Indian Penal Code. The issuance of process dated 12.8.2010 is also questioned. 3. The petitioner is a contractor of the canal which was under construction. He claims that he has taken every care to show the roads or the diversions while performing the activity of construction of canal. The belated F.I.R. of 18 days against the petitioner is afterthought and consequently, the issuance of process was without looking to the material placed before the Court and hence, the continuation of criminal prosecution is a misuse and abuse of the powers including waste of valuable time of Court. 4. Learned counsel submits, the deceased Dinesh, who was driving the motorcycle, from the statement it is apparent, was himself rash and negligent and faced the brunt for himself, taking toll of his precious life and of the pillion rider Rohidas, while plying the motorcycle bearing Registration No.MH-16/1056. Counsel submits, it is not that the deceased alone was travelling on the said road near the canal, but several others have travelled and no mishap as yet has taken place. No criminal antecedents can be attributed to the petitioner as a contractor. 3 Criminal Writ Petition No.996/2010 Even the Department/ Government supports the petitioner about discharging of his duties as contractor. The counsel reiterates, the prosecution is malicious. 5. My attention is also invited to Special Civil Suit No.98/2009 filed by Smt. Rajashtree (widow) against the Executive Engineer, the State and the petitioner Ganesh, seeking decree of Rs.4,00,000/-. Reply was tendered by the State, the Executive Engineer on 5.3.2010, denying liability to compensate the said plaintiff, and attributing that deceased himself was negligent, he had no licence to drive, he was not driving the vehicle as a prudent driver. 6. The learned counsel for the petitioner placed reliance to the judgment in the matter of Malay Kumar Ganguli Vs. Dr. Sukumar Mukherjee & ors. (2009 ALL SCR 2039), wherein the Hon’ble Lordships have observed about the jurisprudential concept of negligence as under : “The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence the element of mens-rea must be shown to exist. For an act to amount to criminal negligence, the decree of negligence should be of much high degree. A negligence which is not of such a high decree may provide ground for action in civil loss but cannot form the basis for prosecution.” 7. There cannot be a question on the observation of the Apex Court. The fact remains, even if Section 279 or 338 of the Indian Penal 4 Criminal Writ Petition No.996/2010 Code could seldom be applied based on the factual assertions in the F.I.R., at this stage, the prudent duty that was expected of the petitioner as a contractor to lay proper signal and indications of diversion been missing, the deceased lost control of his vehicle. He could not primarily know of existence of a diversion and the canal implementation was in progress, lost his precious life. Negligence has several shades, which are to be highlighted during evidence. The spot panchanama at the material time would indicate the actual position. If there was such precaution, it could be pointed by the petitioner as a defence. 8. Taking survey of these facts, the issuance of process against the petitioner, at this stage, cannot be said to be abuse of process or moved out of vendetta or to stifle any other cause of the parties. The deceased or his family had no acquaintance to the petitioner. Needless to add, if any application is made by the petitioner for discharge, the learned Judge shall decide the same on its merits. Criminal Writ Petition dismissed. Rule discharged. K.U. CHANDIWAL JUDGE