Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Judgment Reserved on: 6 November ,2009
th
Judgment Delivered on: 11 November, 2009
+ CRL.REV.P. 563/2009 & Crl.M.A.12341/2009
SUNIL MANCHANDA & ANR. ..... Petitioner
Through: Mr.Rajat Wadhwa, Adv.
versus
STATE ..... Respondent
Through: Ms.Fizani Husain, APP.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1. By way of this revision petition the petitioner has impugned
the order dated 10.9.2009 whereby the Trial Court had framed
notice under Section 251 of the Cr. P.C. against the petitioners
Sunil Manchanda, Kapil Mahajan for an offence punishable under
Section 285/337/338 of the IPC.
2. Briefly stated the facts of the case are as follows :-
Crl. R.P.563/2009 Page 1 of 7
On 15.2.2002 vide DD No.45 received at police station
Sultan Puri, information was given that a blast had taken place
near Adarsh Nursery in the scrap lying therein; some persons had
received injuries. The investigative team reached the spot. Four
persons were found to be injured namely Raj Kumar, Subhagman,
Ram Murat and Ram Bachan; they had been removed to S.G.M.
Hospital. Their MLCs had depicted the injuries to be dangerous
and grievous.
Statement of all the injured were recorded on 16.2.2002.
They were all working as labourers in the godown No.7 of Anand
Nusrsery, Yadav Farms,Kirari Road, Delhi for the last three
months. On the fateful day i.e. 15.2.2002 while they were
dealing with scrap in the godown between 2.30-2.45 PM there
was a blast pursuant to which the aforestated persons received
injuries; they were removed to the hospital by the owner of the
farm house in the PCR van. Supplementary statements of the
injured were recorded on 6.3.2002. In these statements all the
aforestated persons had spelt out the role of the present
petitioners namely Sunil Manchanda and Kapil Mahjan. It had
been stated that they were working in godown No.7 which
belonged to the present petitioners; from the scrap chemical gas
Crl. R.P.563/2009 Page 2 of 7
and pollution used to be emitted; this had been informed to the
petitioners as also to the contractor Amrit Lal Shukla. They,
however, did not bother and kept the matter pending saying that
nothing untoward will happen and if they i.e. injured are
aggrieved by the working conditions they may leave; due to
financial compulsions the injured had continued working; on the
fateful day injured Ram Bachan’s foot came under a hammer
pursuant to which a gas and chemical gas got emitted resulting
in the blast. Aforestated persons were injured. In this version, it
has been averred that the accident had occurred because of the
negligence of the factory owners namely the petitioners Sunil
Manchanda and Kapil Mahajan.
3. The scrap including pieces of the metal which has been
lifted from the spot had been sent to CFSL for examination. The
CFSL vide its report dated 24.8.2003 had opined that no
explosive substance could be detected in the said exhibit.
4. Charge sheet in this case had accordingly been filed under
Sections 337/338 of the IPC on 4.2.2004; cognizance was taken
on i.e. 20.2.2004. Notice in this case had been framed been on
10.9.2009 under Section 285/337/338 of the IPC.
Crl. R.P.563/2009 Page 3 of 7
5. On behalf of the petitioner, it has been submitted that
notice had been framed under Section 285 of the IPC on
10.9.2009; the cognizance of the offence under Section 285 of
the IPC was taken for the first time on 10.9.2009 which is beyond
the period of limitation as offence in this case is dated 15.2.2002
and cognizance under Section 285 of the IPC having been taken
seven years later is clearly barred by Section 468 of the Cr.P.C.
Cognizance under Section 285 of the IPC is bad and liable to be
set aside.
6. Second argument propounded is that the averments made
in the charge sheet do not attract the provisions of Sections
337/338 of the IPC. The petitioners cannot be held guilty for a
vicarious liability. Negligence under criminal law cannot be
equated with negligence under civil law; parameters and the
essential ingredients to ajudge ‘negligence’ in order to fasten a
criminal liability are distinct. Reliance has been placed upon AIR
2005 SC 3180 Jacob Mathew Vs. State of Punjab to support this
submission. Ingredients of the offences under Sections 337/388
of the IPC which necessarily postulate a negligent act are not
made out qua the petitioners; they are entitled to a discharge.
7. Learned prosecutor has rebutted these arguments.
Crl. R.P.563/2009 Page 4 of 7
8. The offence is dated 15.2.2002. The charge sheet had
been filed under Section 337/338 of the IPC on 4.2.2004; on
20.2.2004 the cognizance of the offences had been taken.
Notice was framed on 10.9.2009.
9. The stage of the framing of a notice is different and
distinct from the stage of taking cognizance. Cognizance has not
been defined in the statute; either in the IPC or in the Cr. P.C.
but it necessarily means taking of judicial notice which is a stage
when the accused is not to be heard; it is a matter between the
Court and the complainant/State; at the stage of notice accused
has a right to be heard. Cognizance is taken of the offence and
not of the offender. Admittedly as on 20.2.2004 cognizance of
the offence under Section 285 of the IPC was within limitation.
10. The bar of Section 468 of the Cr. P.C. operates on the
taking of the cognizance of an offence. In this case cognizance
of the offence had been taken on 20.2.2004 when the accused
were summoned; on which date admittedly there was no bar of
limitation for taking cognizance of the offence under Section 285
of the IPC. On 10.9.2009 the stage of cognizance was already
over; it was the stage when the notice was framed against the
accused persons which is a subsequent stage i.e. after the stage
Crl. R.P.563/2009 Page 5 of 7
of taking cognizance. Bar of Section 468 of the Cr.P.C. is
inapplicable.
11. On merits, the statements of the injured persons namely
Raj Kumar, Subhagman, Ram Murat and Ram Bachan have been
perused. Their first statements were recorded by the
Investigating Officer on 16.2.2002 and their supplementary
statements were recorded on 6.3.2002; they had suffered
grievous and dangerous injuries. The averments contained in
their second statements dated 6.3.2002 evidently and prima
facie detail the role of the present petitioners and which have
been discussed supra. Section 285 speaks of negligent conduct
with respect to fire or combustible matter. Sections 337/338 of
the IPC encompass endangering of life and personal safety of
others by causing hurt or grievous hurt respectively.
12. At the stage of framing of notice under Section 251 of the
Cr. P.C. it is the substance of the accusation which has to be
stated to the accused in order that the accused knows that he
has to meet this charge. This accusation has been so stated
clearly in the notice framed against the petitioners. The
particulars of the offence had been explained to them.
Crl. R.P.563/2009 Page 6 of 7
13. There is no merit in this revision petition. Dismissed
(INDERMEET KAUR)
JUDGE
11, November, 2009
nandan
Crl. R.P.563/2009 Page 7 of 7
th
% Judgment Reserved on: 6 November ,2009
th
Judgment Delivered on: 11 November, 2009
+ CRL.REV.P. 563/2009 & Crl.M.A.12341/2009
SUNIL MANCHANDA & ANR. ..... Petitioner
Through: Mr.Rajat Wadhwa, Adv.
versus
STATE ..... Respondent
Through: Ms.Fizani Husain, APP.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1. By way of this revision petition the petitioner has impugned
the order dated 10.9.2009 whereby the Trial Court had framed
notice under Section 251 of the Cr. P.C. against the petitioners
Sunil Manchanda, Kapil Mahajan for an offence punishable under
Section 285/337/338 of the IPC.
2. Briefly stated the facts of the case are as follows :-
Crl. R.P.563/2009 Page 1 of 7
On 15.2.2002 vide DD No.45 received at police station
Sultan Puri, information was given that a blast had taken place
near Adarsh Nursery in the scrap lying therein; some persons had
received injuries. The investigative team reached the spot. Four
persons were found to be injured namely Raj Kumar, Subhagman,
Ram Murat and Ram Bachan; they had been removed to S.G.M.
Hospital. Their MLCs had depicted the injuries to be dangerous
and grievous.
Statement of all the injured were recorded on 16.2.2002.
They were all working as labourers in the godown No.7 of Anand
Nusrsery, Yadav Farms,Kirari Road, Delhi for the last three
months. On the fateful day i.e. 15.2.2002 while they were
dealing with scrap in the godown between 2.30-2.45 PM there
was a blast pursuant to which the aforestated persons received
injuries; they were removed to the hospital by the owner of the
farm house in the PCR van. Supplementary statements of the
injured were recorded on 6.3.2002. In these statements all the
aforestated persons had spelt out the role of the present
petitioners namely Sunil Manchanda and Kapil Mahjan. It had
been stated that they were working in godown No.7 which
belonged to the present petitioners; from the scrap chemical gas
Crl. R.P.563/2009 Page 2 of 7
and pollution used to be emitted; this had been informed to the
petitioners as also to the contractor Amrit Lal Shukla. They,
however, did not bother and kept the matter pending saying that
nothing untoward will happen and if they i.e. injured are
aggrieved by the working conditions they may leave; due to
financial compulsions the injured had continued working; on the
fateful day injured Ram Bachan’s foot came under a hammer
pursuant to which a gas and chemical gas got emitted resulting
in the blast. Aforestated persons were injured. In this version, it
has been averred that the accident had occurred because of the
negligence of the factory owners namely the petitioners Sunil
Manchanda and Kapil Mahajan.
3. The scrap including pieces of the metal which has been
lifted from the spot had been sent to CFSL for examination. The
CFSL vide its report dated 24.8.2003 had opined that no
explosive substance could be detected in the said exhibit.
4. Charge sheet in this case had accordingly been filed under
Sections 337/338 of the IPC on 4.2.2004; cognizance was taken
on i.e. 20.2.2004. Notice in this case had been framed been on
10.9.2009 under Section 285/337/338 of the IPC.
Crl. R.P.563/2009 Page 3 of 7
5. On behalf of the petitioner, it has been submitted that
notice had been framed under Section 285 of the IPC on
10.9.2009; the cognizance of the offence under Section 285 of
the IPC was taken for the first time on 10.9.2009 which is beyond
the period of limitation as offence in this case is dated 15.2.2002
and cognizance under Section 285 of the IPC having been taken
seven years later is clearly barred by Section 468 of the Cr.P.C.
Cognizance under Section 285 of the IPC is bad and liable to be
set aside.
6. Second argument propounded is that the averments made
in the charge sheet do not attract the provisions of Sections
337/338 of the IPC. The petitioners cannot be held guilty for a
vicarious liability. Negligence under criminal law cannot be
equated with negligence under civil law; parameters and the
essential ingredients to ajudge ‘negligence’ in order to fasten a
criminal liability are distinct. Reliance has been placed upon AIR
2005 SC 3180 Jacob Mathew Vs. State of Punjab to support this
submission. Ingredients of the offences under Sections 337/388
of the IPC which necessarily postulate a negligent act are not
made out qua the petitioners; they are entitled to a discharge.
7. Learned prosecutor has rebutted these arguments.
Crl. R.P.563/2009 Page 4 of 7
8. The offence is dated 15.2.2002. The charge sheet had
been filed under Section 337/338 of the IPC on 4.2.2004; on
20.2.2004 the cognizance of the offences had been taken.
Notice was framed on 10.9.2009.
9. The stage of the framing of a notice is different and
distinct from the stage of taking cognizance. Cognizance has not
been defined in the statute; either in the IPC or in the Cr. P.C.
but it necessarily means taking of judicial notice which is a stage
when the accused is not to be heard; it is a matter between the
Court and the complainant/State; at the stage of notice accused
has a right to be heard. Cognizance is taken of the offence and
not of the offender. Admittedly as on 20.2.2004 cognizance of
the offence under Section 285 of the IPC was within limitation.
10. The bar of Section 468 of the Cr. P.C. operates on the
taking of the cognizance of an offence. In this case cognizance
of the offence had been taken on 20.2.2004 when the accused
were summoned; on which date admittedly there was no bar of
limitation for taking cognizance of the offence under Section 285
of the IPC. On 10.9.2009 the stage of cognizance was already
over; it was the stage when the notice was framed against the
accused persons which is a subsequent stage i.e. after the stage
Crl. R.P.563/2009 Page 5 of 7
of taking cognizance. Bar of Section 468 of the Cr.P.C. is
inapplicable.
11. On merits, the statements of the injured persons namely
Raj Kumar, Subhagman, Ram Murat and Ram Bachan have been
perused. Their first statements were recorded by the
Investigating Officer on 16.2.2002 and their supplementary
statements were recorded on 6.3.2002; they had suffered
grievous and dangerous injuries. The averments contained in
their second statements dated 6.3.2002 evidently and prima
facie detail the role of the present petitioners and which have
been discussed supra. Section 285 speaks of negligent conduct
with respect to fire or combustible matter. Sections 337/338 of
the IPC encompass endangering of life and personal safety of
others by causing hurt or grievous hurt respectively.
12. At the stage of framing of notice under Section 251 of the
Cr. P.C. it is the substance of the accusation which has to be
stated to the accused in order that the accused knows that he
has to meet this charge. This accusation has been so stated
clearly in the notice framed against the petitioners. The
particulars of the offence had been explained to them.
Crl. R.P.563/2009 Page 6 of 7
13. There is no merit in this revision petition. Dismissed
(INDERMEET KAUR)
JUDGE
11, November, 2009
nandan
Crl. R.P.563/2009 Page 7 of 7