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2019 Supreme(Jhk) 962
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Anubha Rawat Choudhary, J.
Bhushan Lal Raina son of Shri Nathji Raina & Anr. - Petitioners
Versus
The State of Jharkhand & Anr. - Respondent
Cr. M.P. No.515 of 2008
Decided On : 18-11-2019
For the Petitioners: Mr. Indrajit Sinha, Mr. Pradipto Mitra, Adv.
For the State : Mr. Shiv Kumar Sharma, A.P.P
Headnote:
Constitution of India, 1950 - Article 21 - Criminal Prosecution Code, 1973 - Section 154 and 155 482 - Indian Penal Code, 1860 - Sections 287, 337 and 338 - Injuries - Accident - Story in brief is that of was registered on the basis of recorded on wherein inter alia she has alleged that on she along with her husband and children had visited Jubilee Park and had taken ride on Moon Maker and in course of the ride same malfunctioned as result of which she fell down and received head injury and her husband received minor injuries - She has further alleged that there was no safety belt on that ride and it is because of the negligence of the petitioners the incident took place - It has also been alleged that safety belts there when earlier occasion they had taken a ride - It has been alleged that the owners of the ride are chairman JUSCO Management and petitioner no - It is alleged that accident had taken place due to negligence of petitioner no– Held, petitioners have also argued that informant of case has narrated a completely different story in civil suit instituted by her arising out of the same incident in as much as plaint in civil suit gives a different story - This Court finds from perusal of plaint in civil suit that it also mentions about negligence on part of the present petitioners in their duty to take appropriate care for operation of ride - Although there are certain inconsistencies in allegation made in the FIR and plaint filed in the suit those inconsistencies are minor inconsistencies and are not enough to quash entire criminal proceedings against petitioners - This Court further finds that inconsistencies in version of informant regarding allegations made in and civil suit can be ironed out only at stage of trial by putting appropriate questions to informant of the case at stage of his cross examination - Accordingly contention of the counsel for the petitioners that present proceedings are to be quashed on account of alleged different story in civil suit instituted by informant arising out of same incident is rejected at this stage - As a cumulative effect of aforesaid findings all the four points raised by petitioners are hereby rejected at this stage and present petition is hereby dismissed - It will be open to petitioners to raise the points as may be available to them under law at appropriate stage before learned court below and dismissal of this case will not prejudice case of either parties before learned court below in any manner whatsoever – order according
ORDER :
1. Heard Mr. Indrajit Sinha, counsel appearing on behalf of the petitioners along with Mr. Pradipto Mitra, Advocate.
2. This petition has been filed for the following relief:
“For quashing the entire criminal proceedings initiated as against the petitioners in connection with Bistupur Police Station Case No.68 of 2007 corresponding to G.R. No.497 of 2007, including the order dated 26.10.2007 passed by the learned Chief Judicial Magistrate, Jamshedpur, whereby and whereunder he has been pleased to take cognizance of the offence under Sections 287, 337 and 338 of the Indian Penal Code as against the petitioners, and all further proceedings subsequent thereto in the said Bistupur Police Station Case No.68 of 2007 corresponding to G.R. No.497 of 2007, now pending in the court of learned Judicial Magistrate, Jamshedpur.”
3. The prosecution story in brief is that one Bistupur P.S. Case No. 68 of 2007 dated 02.03.2007 was registered on the basis of the fardbayan of Mrs. Manju Kumari recorded on 28.10.2006, wherein, inter alia, she has alleged that on 24.10.2006, she along with her husband and children had visited Jubilee Park and had taken a ride on “Moon Maker” and in course of the ride, the same malfunctioned, as a result of which she fell down and received head injury and her husband received minor injuries. She has further alleged that there was no safety belt on that ride and it is because of the negligence of the petitioners, the incident took place. It has also been alleged that the safety belts were there when on earlier occasion they had taken a ride. It has been alleged that the owners of the ride are (chairman) Raina (petitioner no. 1), manager Mohanty, JUSCO Management and Sanjiv Bhan (petitioner no. 2). It is alleged that the accident had taken place due to negligence of Raina (petitioner no. 1), Mohanty and Sanjiv Bhan (petitioner no. 2).
4. The learned counsel for the petitioners submits that the petitioners have been arrayed as an accused for the reasons that the petitioner no.1 is said to be the Chairman, whereas the petitioner no.2 is said to be the Manager of the Company which runs the Amusement Park. It is submitted that the Amusement Park is owned and managed by a Company namely Nicco Jubilee Park Limited and at that relevant point of time, the petitioner no.1 was the Chairman and the petitioner no.2 was the Manager In-charge.
5. The learned counsel for the petitioners further submits as follows:
(a) The allegation made in the FIR does not disclose commission of any offence, as against the Petitioners.
(b) The fardbeyan of Mrs. Manju Kumari, even if taken to be true in its entirety, does not disclose commission of a cognizable offence and, hence, F.I.R. could not have been registered.
(c) The petitioners cannot be criminally prosecuted only because they held the post of Chairman and Manager In-charge respectively in the Company at the relevant point of time, as the concept vicarious liability is not applicable to criminal proceedings.
(d) The informant has narrated a completely different story in the civil suit instituted by her regarding the same accident/incident and, therefore, the continuance of the criminal prosecution would be an abuse of process of law and will result in miscarriage of justice.
6. Re: point (a) it is submitted as under :
(i) It is submitted that even if assuming, though not admitting that the allegations made in the fard bayan of Mrs. Manju Kumari are taken to be true in its entirety, the same does not disclose commission of any offence far less the offences alleged.
(ii) Admittedly, the petitioners were not present, when the accident/incident took place. No overt act has been alleged to have been committed by the petitioners. They have been arrayed as an accused only by virtue of their positions in the Company by merely stating that they are responsible.
(iii) In the fard beyan, the informant has alleged that the ride namely “Moon Maker” malfunctioned and she fell down because there were no saf
