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Judgment
Heard learned counsel for the petitioners and learned Additional Public Prosecutor for the State.
The petitioners have filed this application seeking quashing of the order dated 17.11.2016 passed in U.T. No. 6/18, arising out of Baniyapur P.S. Case No. 224 of 2011, by the learned ACJM-XI, Saran at Chapra, whereby and whereunder cognizance has been taken against the petitioners for the offences punishable under Sections 304(A)/34 of the Indian Penal Code (IPC) and Section 3(I)(X) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST Act’ for short).
The prosecution case, as put forth by the informant, is that his son, the deceased, was taken by co-accused Radha Kishun Choubey, on 21.11.2011, at around 07:00 AM, to his house for working as labour and assured that he will be fed there and work was taken from him up-till 04:30 PM. It is further alleged that when his son asked for Rs.100/- as wages, he was given only Rs. 80/-, to which a dispute arose and thereafter the named accused persons killed his son by electrocution or by some other means and covered his dead body with quilt.
Learned counsel for the petitioners has submitted that the petitioners have falsely been implicated in this case and petitioner No. 1 is not named in the FIR.
Learned counsel for the petitioners has further submitted that none of the ingredients of the offences in which cognizance has been taken is made out. With respect to the offence under Section 304(A) IPC, it has been submitted that the negligent act, not amounting to culpable homicide, as per the investigation, is against co-accused Md. Sarfuddin, who used to supply electricity through generator set to the entire village through naked wire, i.e., non-insulated electric wire. It has been submitted that the non-insulated electric wire, which was used for supply of electricity of the generator set, was the reason for electrocution of the deceased. It has been submitted that the petitioners were in no way connected with the supply or transmission of the electricity through generator set and had got no association or business deals with co-accused Md. Sarfuddin.
Learned counsel for the petitioners has further submitted that the investigation by the investigating agency was conducted in a perfunctory manner and the charge-sheet came to be filed without ascertaining the true facts and the cognizance too was taken in a mechanical manner without application of judicial mind.
Learned counsel for the petitioners has further submitted that the FIR was lodged in the year 2011 before the amendments were carried out in Section 14 of Chapter IV of the SC/St Act, when the said amendment came into force with effect from 26.01.2016 and prior to its substitution the Special Court was for the purpose of speedy trial of the proceedings, moreover, Section 14-A with respect to the appeals against the order of the Special Court came to be inserted on 26.01.2016.
Learned counsel for the petitioners has further submitted that the investigation revealed after examination of the fellow labourers that it was an accidental electrocution of the deceased caused by the non-insulated electric wire, which was used for supply of electricity through generator sets by co-accused Md. Sarfuddin.
Learned counsel for the petitioners has, referring to the judgment of the Hon’ble Supreme Court, in the case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, submitted that the case of the petitioners falls under various categories as discussed in paragraph 102 of the said judgment.
Learned counsel for the petitioners has further submitted that negligence and gross negligence are two different things, least to say that any negligence was done on the part of the petitioners. Referring to the judgment of the Hon’ble Supreme Court in the case of Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others, reported in (1998) 5 SCC 749, it has been submitted that order summoning the petitioners is a serious matter and the learned Magistrate ought to have seen the materials against the petitioners so as to constitute a prima facie case against them.
Learned counsel for the petitioners has further submitted that none of the ingredients of Section 3(I)(X) of the SC/ST Act is made out when there is no allegation that the petitioners abused any of the family members of the informant by caste based slurs in a public place except the fact that the deceased belonged to the SC/ST Community, the above penal section has been mechanically added in the FIR and cognizance also came to be taken in a mechanical manner.
Learned counsel for the petitioners has further submitted that initially the FIR was registered for the offences punishable under Section 302/34 of the IPC, but after thorough investigation, charge-sheet came to be filed under Section 304(A)/34 of the IPC and Section 3(I)(X) of the SC/ST Act, and the learned Magistrate without differing with the final form took cognizance against the petitioners under charge-sheeted sections.
Learned counsel for the petitioners has lastly submitted that continuation of the proceeding against the petitioners would amount to an abuse of the process of the Court.
Learned Additional Public Prosecutor for the State has opposed the prayer of the petitioners.
Heard learned counsel for the parties and perused the records.
Initially, the FIR was registered under Section 302 of the IPC and not under the provisions of the SC/ST Act. On completion of the investigation, charge-sheet came to be filed under Section 304(A) of the IPC and Section 3(I)(X) of the SC/ST Act and the learned Magistrate also took cognizance under the charge-sheeted sections. The investigation revealed that it was co-accused Md. Sarfuddin, who was providing electricity through generator sets to the entire village through non-insulated electric wire. Moreover, the labourers working with the deceased have specifically stated that it was an accidental electrocution caused by the non-insulated electric wire being used for supply of electricity through generator by the co-accused Md. Sarfuddin, the petitioners cannot be held to be liable for any negligent act, if any, leading to the accidental electrocution of the deceased, rather the act of negligence, if any, has been done by co-accused Md. Sarfuddin.
In the aforesaid facts and circumstances as well as in view of the judgments of the Hon’ble Supreme Court, as discussed above, continuation of the proceedings against the petitioners would amount to an abuse of the process of the Court.
Resultantly, the impugned order taking cognizance dated 17.11.2016 passed in U.T. No. 6/18, arising out of Baniyapur P.S. Case No. 224 of 2011, by the learned ACJM-XI, Saran at Chapra, is hereby quashed.
This application is accordingly allowed.