The judgment established the principle that the instigator of fireworks at a marriage procession could be held criminally liable for resulting damage, based on the provisions of Sections 436 and 285, I.P.C.

JUDGMENT :

P.K. Tripathy, J. - A marriage procession on 13.12.1996 accompanied with fire works by bursting of crackers etc. resulted in setting fire to the house of the informant as a result of which valuables and household articles of that human dwelling was burnt to ashes. Petitioner is the father of the bride-groom and at his instance the fire works was carried on by accused Bhima Nayak, who is the co-accused of the Petitioner. On the aforesaid allegation F.I.R. was lodged and Puri Town P.S. ase No. 292 of 1996 corresponding to G.R. ase No. 1724 of 1996 of the Court of S.D.J.M., Puri. On completion of investigation, charge-sheet for the offence punishable under Sections 436/285/34, I.P.C. and Section 32 of Police Act was submitted. After taking cognizance of the said offences when process was issued by learned S.D.J.M., Puri, petitioner moved an application u/s 482, Code of Criminal Procedure in this Court registered as Crl. Misc. Case No. 1957 of 1997, to quash the proceeding against the Petitioner. On 28.5.1997 this Court disposed of that application with the following observation:

Petitioner feels aggrieved by order of learned S.D.J.M., Puri taking cognizance of offence punishable under Sections 436/285 read with Section 34 of Indian Penal Code, 1860 (in short, 'Indian Penal Code') and Section 32, Police Act. According to Learned Counsel for Petitioner the ingredients necessary to constitute these offences do not exist. It is open to the Petitioner to highlight these aspects before learned S.D.J.M. by making an appropriate application. If such an application is made, the same shall be dealt with keeping in view the principles as laid down by the Apex Court is K.M. Mathew v. State of Kerala and Anr. 1992 (5) OCR 66. It is stated that the motion shall be made on 2.7.1997. Till disposal of the application, NBW shall not be executed, if not already executed.

After that order, Petitioner moved an application to recall the order of issue of process against him and that was heard and rejected by learned S.D.J.M. as per the impugned order dated 18.9.1997. Learned S.D.J.M. has noted in the impugned order that the facts alleged and the statement of witnesses available shows existence of a prima facie case against the Petitioner for the offence as noted above. Against that, Petitioner has approached this Court again u/s 482, Code of Criminal Procedure for the same relief of quashing of the criminal proceeding or to recall the order of issue of process u/s 204, Code of Criminal Procedure

2. Without disputing the factual aspect existing on record; Mr. D.P. Dhal, Learned Counsel for the Petitioner, candidly but emphatically argued that act of bursting carackers by person employed to do that work if done by any such person rash by or negligently, then criminal liability does not extend vicariously against the Petitioner because he has neither intended to cause any damage to any property nor there was any necessity for him to take precaution as against the accidental dropping of the flame into the house of the informant and, therefore, the ingredients of Sections 436 and 285, I.P.C. read with Section 34, I.P.C. are not at all made out against the Petitioner.

3. Mr. Ashwini Kumar Mishra, learned Standing Counsel on the other hand argued that carelessness on the part of the Petitioner goes simultaneously with the carelessness of the man employed to do the fire works. Since the fire work was done at the instance of the Petitioner at every step he was to be careful and to make the man employed by him to be careful relating to displaying the fire works. While dealing with the combustible article, Petitioner could not have remained complacent in the matter of precaution, which in other words amounts to carelessness and therefore, Petitioner's liability to face the trial is prima facie available, because the ingredients of the offences are well made out. Accordingly, he prays to reject the application u/s 482, Code of Criminal Procedure

4. It is the