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Judgments of Supreme Court of India and High Courts

A. Adithya & Others vs State Of Himachal Pradesh on 5 December, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.MMO No. 357 of 2015
Reserved on 21.11. 2017

.
Date of Decision: 05.12.2017

A. Adithya others ……Petitioners

Versus

State of Himachal Pradesh ….. Respondents

Coram:

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge

Whether approved for reporting?1 Yes.

For the Petitioner: Mr. Pattabhi Vemulapati, Advocate
with Mr. Tunjya N. Ganguly and Mr.
Rajnish Maniktala, Advocates.

For the respondent: Mr. Virender Kumar Verma, and Mr.
Varun Chandel, Addl. Advocate
Generals, for the respondent/

State.

Mr. Suneet Goel, Advocate, for
proposed respondents No.2 to 25.

Chander Bhusan Barowalia, J.

The present petition is maintained by the

petitioners under Section 482 Cr.P.C. for quashing the

proceedings in a case titled State versus Mahender Singh

1
Whether reporters of the local papers may be allowed to see the judgment? Yes.

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others, pending before the learned Additional Chief

Judicial Magistrate, Court No.1, Mandi, District Mandi,

H.P. and it is prayed in the petition:-

.

(A) that the charge-sheet dated 04.09.2014, in FIR
No.61 of 2014, dated 08.06.2014, filed by the

Police under Sections under Section 336,304-A
read with Section 34 IPC, at Police Station, Aut,
District Mandi, Himachal Pradesh, in PC

No.12395/2013 (96-II/14), titled State versus
Mahender Singh others, pending before the
Additional Chief Judicial Magistrate, Court

No.1, Mandi, District Mandi, H.P., as against the

petitioners, may be quashed and set aside;

(B) that all the proceedings in PC No. 12395/2013
(96-II/14), titled State versus Mahender Singh
others, pending before the Additional Chief

Judicial Magistrate, Court No.1, Mandi, District

Mandi, H.P., as against the petitioners, may be
quashed and set aside;

(C) that orders passed by the learned Additional
Chief Judicial Magistrate in case PC No.
12395/2013 (96-II/14), titled State versus
Mahender Singh others, as against the
petitioners, may be quashed and set aside;

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2. Briefly stating the facts giving rise to the present

petition are that proceedings from PC No.12395/2013 (96-

II/14), are pending before the Additional Chief Judicial

.

Magistrate, Court No.1, Mandi, District Mandi, H.P.,

against the petitioners herein, besides nine accused persons

petitioners herein arraigned as A-7, A-8 and A-9 for the

offences punishable under Section 336 of the Indian Penal

Code and Section 304 A, read with Section 34 of the IPC. It

has been alleged that on a complaint lodged at about 10.30

pm, on 08.06.2014, by one of the Faculty Members of the

petitioner institution named A. Adithya, petitioner No.1 in

this petition, the ASI, Police Station, Aut, registered the

same, as FIR No.61 of 2014, at Police Station, Aut, under

Section 336 and 304-A, IPC at 11.15 pm on the same day. In

the complaint it has been alleged that 48 students, including

35 boys and 13 girls accompanied by 2 faculty members of

the College and one lady staff member and her son, two

tour Operators, three Drivers, four Cooks and two Cleaners,

two Booking Managers were on way from Shimla to

Kullu-Manali in two private buses. They reached

Shala-Nala at about 6.45 pm near Thalout and at that time,

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the students wanted to take photographs of the river and

both the bus drivers parked their buses on the road side,

thereafter, all the students went towards the river with the

.

tour manager. It has been alleged that the water in the river

was very less and some students were standing and some

students were seating on the stones and were trying to take

photographs including group photographs. Suddenly, there

was big flow of water in the river. It has further been

alleged that all got panicked and were trying to run to the

bank of river. Some were able to reach the dry land and save

themselves, whereas many got washed away by the heavy

flowing, fast moving turbulent river water, wherein 06 girl

students and 18 male students and one tour managers got

washed away. It is alleged in the complaint that the

accident took place due to the negligence committed by the

Larji Dam employees, who released the dam water without

any sort of caution or warning including blowing the Hooter/

Siren. Accordingly, the information under Section 154 Cr.PC

was given to the police by petitioner No.1. Further, it has

been alleged that the police investigated the case and filed

the Charge-Sheet/ Challan on 04.9.2014, in the Court of

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learned Addl. Chief Judicial Magistrate, Court No.1, Mandi

and case file bearing P.C. No.96-II of 2014, against the nine

accused persons, including the petitioners herein and Court

.

below issued process for their appearance.

3. The particulars of the accused persons, as

mentioned in para 2 of the petition, are as under:

A-1 Mahendra Singh Dhatwalia, Senior Executive
Engineer, Arbitration and Maintenance Division,

H.P. State Electricity Board, Shadwai;

A-2 Mandeep Singh, Resident Engineer, Larji Power
House, Thalaot;

A-3 Harbans Singh, Fitter, on duty on 08.06.2014 at

the relevant time in the Dam;

A-4 Balbir Singh, Assistant Executive Engineer-In-

charge of Barrage, Control Room and Regulation

of water level in the H.P. State Electricity Board,
Thalaot, District Mandi;

A-5 Prem Sukh, Additional Assistant Engineer of
H.P. State Electricity Board, Thalaot;

A-6 Ved Prakash, Shift Engineer, Larji Power
House, HPSEB, Dwada, District Mandi;

A-7 is petitioner No.1 and Faculty member and
Assistant Professor;

A-8 is petitioner No.2 and a lady staff member; and

A-9 is petitioner No.3 and a Faculty member and
Associate Professor of M/s VNR Vignana Jyothi
Institute of Engineering Technology,
Hyderabad (Telangana).

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4. It has been alleged that during investigation, it

was found that on 08.06.2014, at about 5.00 pm there was a

.

discharge of 30 cumecs of water from the dam, at 6.00 pm

there was a discharge of 20 cumecs of water from the dam

and at 7 pm there was huge discharge of 450 cumecs of

water from the dam, which caused sudden rise in the water

of River Beas and resulted in unsuspecting 24 students and

one team member getting washed away. So, it has been

alleged that the incident happened due to negligence and

rashness of the concerned officials. In the charge sheet it

has been alleged that Dam Authorities did not blow the

Sirens/ Hooters properly before release of the water from the

Dam. It was found that there were three Hooters which

should be sounded out of which one Hooter was at the dam

which was being used while releasing the water but the

same was not audible due to the severe noise of traffic. The

second one was at the Exit Tunnel Pipeline coming towards

Aut, but no one was employed there to operate this second

Hooter and the third Hooter was stated to be installed in the

Project Colony at Thalaot, but it was found not operational.

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After Thalaot no Hooter was deployed up to Dwada so as to

warn, alert or caution the public. No Warning Boards were

installed to warn the public. It has also been alleged that

.

nothing was there to warn the public in instances of release

of water. So, the investigation holds the higher authorities

of the Electricity Board guilty of negligence.

5. Further, it has been alleged that during the

course of investigation a Special Force was sent to

Hyderabad for conducting investigation which was headed

by the Deputy Superintendent of Police, namely Amit

Sharma, who collected the reference and records of the

College tour programme after visiting said VNR Vignana

Jyothi Institute of Engineering Technology and also

recorded the statements of the witnesses. On such

investigation, Section 34 IPC had been added and the

petitioners were added as the accused. It has also been

alleged that lateron another Special Police team was sent to

Hyderabad to complete the formalities including arrest and

release of the petitioners on bail. It has also been alleged

that the allegations against the petitioners are that they

stopped the two buses midway on the road side and allowed

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the students to approach the bed of River Beas and also

allowed them to take photographs on the river bed, as it was

their duty and responsibility to control and stop the

.

students, who went to the river site where there was danger.

Summons were issued by the learned Court below to the

petitioners and they appeared before the Court and were

provided copies of Charge Sheet/ Challan and accompanying

documents. It has been alleged that the documents were in

local dialect of the language of Mandi Court, the petitioners

from Telugu Speaking State, were unable to understand the

contents of the said documents, tried for and were unable to

get English Translation, therefore all the documents were

got translated from a private Translator Agency at

Hyderabad. It has been alleged that the Petitioners are

innocent of the offences alleged against them. It has also

been submitted that on perusal of the Challan without any

additions or subtractions, does not make out any of the

offence(s) alleged against the petitioners or otherwise. It

has been alleged that no investigation of any sort had been

done by the police against them to come to the conclusion

that they are liable for criminal negligence.

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6. It has been contended that the Charge-Sheet

goes to show that the concerned officer of the Larji Dam,

were only responsible for the incidence and the petitioners

.

were not at all responsible. Further no sign posts or any

Guards or other such steps taken anywhere at the incident

site to caution or warn the public of the danger of any

sudden release of water from the dam. Therefore, these

concerned officers of Larji Dam are liable under Section 304-

A and Section 336 IPC. It has been alleged that the

concerned Officers of the Dam were responsible for this

incident and they were suspended and some transferred too

for their acts and dereliction of duties leading to this

avoidable ghastly tragedy. As regards the petitioners, ie. A-

7 to A-9, there is nothing to show that any investigation was

done or is there any basis to say how the Investigating

Agency had come to the conclusion to make them liable for

any of this unfortunate incident. It has been submitted that

as per the charge sheet, the petitioners are roped in under

Section 34 IPC and not directly under Section 304-A of the

Indian Penal Code. It has been alleged that, as the question

of provisions of Section 34 IPC are not applicable to the facts

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and circumstances of the case and as such invoking Section

34 IPC is totally misconceived and legally untenable and

unsustainable.

.

7. It has been submitted that the prosecution has

admitted that there were no Sign Boards, no caution boards,

no sentry or watchman to caution anyone entering the river

bed that there is a danger of water being released from the

Dam, and so not to enter into the waterless river bed. It is

alleged that it is admitted fact that out of three Hooters,

which were there, none of them were available to warn and

caution the public about the release of the water from the

Dam. It has been alleged that any person going to the river

side will have absolutely no idea, no knowledge or any

indication at least that the empty river bed would suddenly

be flooded with huge quantity of gushing waters that would

be released abruptly by the Dam officials. It has been

alleged that the prosecution has admitted that the river bed

was almost dry with hardly 20 cumecs of water flowing. It

has been alleged that there is no material on record to

impute any knowledge or awareness on the part of the

petitioners herein of any such dangerous or fatal

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consequences of four tour team going to the waterless river

bed. It has been submitted that faculty members i.e.,

petitioners herein, could have been held liable for such rash

.

or negligent, if they could have foreseen the dangers ahead.

It has been alleged that this ghastly tragedy was due to the

abrupt discharge of huge quantity of water in the river by

the concerned officers of the HP State Electricity Board

without any warning whatsoever, and as such, the said act

and doing by the said officers is the proximate cause of the

tragic death of those students and one team member due to

the violent force of the water. It has been alleged that it

cannot be said there was any direct nexus between the

tragic death of the students and the team going to the river

along with the faculty members, the petitioners herein.

8. It has been alleged that it is also to be seen that all the

students and team members who went to the river bed were

majors and were in position to decide for themselves and it

is nowhere the case of the prosecution that it was the

petitioners who took the students and team members to the

river. It has to be seen that these petitioners too would have

been victims of the gross and culpable negligent

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act of the concerned Dam officials and would have got

washed away and lost their lives. It has been stated that

there being no material on record to proceed against the

.

petitioners.

9. It has been alleged that the petitioners were eye

witnesses to the ghastly tragedy that took place before them

on the evening of 08.6.2014 and it is the 1st petitioner, who

gave the complaint to the police, on the basis of which,

F.I.R. was registered. It has been submitted that it is a

great irony, as much later to the incident, as an

afterthought and for the reasons best known to the

Investigating Agency i.e. the police officers visited

Hyderabad and examined the petitioners and students, and

roped in the petitioners. It has also been alleged that the

prosecution against the petitioners herein is totally

misconceived and is a sheer abuse of process of law, act and

may be quashed.

10. It has been alleged that Petitioners have no

other remedy except to approach this Court and if relief as

prayed for is not granted, they will suffer severe and

irreparable loss and injury as the petitioners being from far

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off places, i.e. Hyderabad, Telangana State, and ordinary

employees, suffer the process of facing impugned

proceedings, which are vexatious and misconceived.

.

11. Reply to the application filed by the respondent.

In reply, the respondent/State has admitted that

charge- sheet under reference is pending before the learned

Trial Court and denied the other contents of the application.

However, in reply on merits, it has been submitted that case

FIR No.61/2014, dated 08.06.2014, was registered against

the Larji Power Project authorities, Thalout for doing an act

endangering life and personal safety of others and causing

death by negligence of 24 students and 01 team member by

suddenly releasing dam water without prior notice/warning.

It has also been submitted that the case was registered on

the statement of present petitioner No.1, namely, A. Adithya

of Engineering College, Hyderabad. Further, it has been

submitted that six persons of Larji Power Project

authorities, Thalout were found guilty for releasing sudden

water in the Beas river and they were arrested on different

dates by the Investigating Officer and also the faculty

members/ all petitioners were also arrayed as accused. It

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has been submitted that as there is sufficient evidence

against the petitioners and others, the Investigating Officer

prepared challan under Section 173(2), Code of Criminal

.

Procedure for offences under the provisions of Section 336,

304-A read with Section 34 IPC. Thereafter, Challan was

presented in the Court of Ld. Additional CJM, Court No.1,

Mandi. It has been alleged that the charge sheet was filed

before the Court on 09.09.2015. It has been admitted that on

08.06.2014, in the evening at about 5.00 pm, there was a

discharge of 20 cumecs of water from the Dam, and at 7.00

pm, there was discharge of 450 cumecs of water from the

dam, which caused sudden rise in the water of river Beas

which resulted into the death of 24 students and 1 team

member. However, it is submitted that during the course

of investigation, the Investigating Officer met with the

parents of the students, who had lost their lives in the

unfortunate incident and also recorded the statements of 08

students of VNR Jyoti Institute of Engineering

Technology Hyderabad, under Section 161 Cr.PC, who had

returned back to their homes after the incident. These

witnesses have also stated that the unfortunate incident

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could have been avoided, if the petitioners accompanying the

students namely, A. Aditya, Dr. C. Kiran and G. Sumabala

had taken reasonable care when the bus was stopped near

.

the Beas river at Thalot. It has further been submitted that

all the petitioners are Assistant Professors of the Institute

and were accompanying the students. It has also come in

the statement of one of the witnesses that one shopkeeper,

namely Puran Chand son of Sher Singh and other

inhabitants of that particular vicinity had warned the

faculty not to go down near the river, but the petitioners did

not stop the students to go down near the river for taking

photographs. Thereafter, on finding of sufficient grounds of

their arrest, all the petitioners were arrested on 07.08.2015,

for committing the offence punishable under the provisions

of Section 336, 304-A of the Indian Penal Code.

12. Further, it has been submitted that the

petitioners are also liable for the loss of lives of 24 students

and 01 team member as the petitioners were required to be

prudent enough to foresee the consequences of their gross

negligent act and conduct, when the petitioners permitted

the students to enter the river for photography etc. It has

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also been submitted that the concerned officers of the

Electricity Board have also been made accused for the

negligence on their part. It has further been submitted that

.

this unfortunate incident could have been avoided, if the

petitioners had exercised their due caution when the bus

was stopped near Beas river near Thalout.

13. It has been submitted that the place of incident

where the bus was stopped was not included in the list of

halts as per the tour programme and the students were

directly enroute from Shimla to Kullu. Further that the

petitioners have rightly been made accused persons in the

charge-sheet in case FIR No.61/14, registered at Police

Station, Aut. It has been submitted that during the course

of investigation, the Students Tour Programme was taken

into possession by the police from the Principal of VNR Jyoti

Institute of Engineering Technology, Hyderabad and the

police also met with the parents of the deceased students

who lost their lives in the unfortunate incident and had

recorded the statements of the 08 students of the above

Institute who stated that this unfortunate incident could

have been avoided, if the faculty members had taken care

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and caution. So, on the basis of these statements, all the

petitioners were arrayed as accused persons for committing

the offence under the provisions of Section 336, 304-A read

.

with Section 34 IPC and their names have been figured as

accused persons in the Challan presented under Section

173(2) of the Code of Criminal Procedure, on the conclusion

of the investigation.

14. It has been submitted that the mere act of the

petitioners in permitting the students to enter the river is

prima facie evidence of gross negligence on the part of

petitioners. It has also been submitted that the death of the

24 students and 01 team member was the direct result of

rash and negligent act of the accused persons and the act of

the petitioners was proximate cause of the incident. It has

been submitted that the rashness of the petitioners was of

such a degree as to amount to taking a hazardous step and

it was within the knowledge of the petitioners that the

hazard was of such a degree that fatal injury was most

likely to be occasioned.

15. It has been submitted that the rivers in the hilly

areas are never safe to be taken negligently and such rivers

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often get fierce by flash floods and that even if presumed

that there was no dam or no water was gushed out

suddenly, still then no person with a prudence of a common

.

man would risk his life by entering himself or permitting

somebody else to enter the river and if somebody does the

same, it is but with clear and instant risk of harm or danger

to life and personal safety of the individual or other persons.

Further, it has been submitted that when the water started

rising, the local inhabitants of the vicinity blew whistles to

warn the members of tour party venturing in the river bed

but their efforts failed.

16. In rejoinder, the contents of the reply are denied

and those of the petition are re-iterated.

17. Heard. The learned counsel for the petitioners

has argued that no case under Section 304 A read with

Section 34 IPC is made out and to support his contentions,

he has relied upon the judgments rendered in S.N. Hussain

versus The State of Andhra Pradesh,(1972) 3 Supreme

Court Cases 18, Sushil Ansal versus State through

Central Bureau of Investigation, (2014) 6 Supreme Court

Cases 173, Pandurang and others versus State of

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Hyderabad, A.I.R. 1955, S.C. 216, and in Vijendra Singh

v. State of U.P., AIR 2017 Supreme Court 860.

18. On the other hand, learned counsel for the

.

respondent-State has argued that the charge-sheet has been

presented in the Court below and now there is no occasion

to this Court to quash the proceedings. He has referred to

the statements of Bihari Lal, Pawan Kumar, Kuram Dutt,

Digeshwar, Chetan Chavan and others and further argued

that the petition devoid of merits deserves dismissal, as the

petitioners have chance to argue on the charge in the Court

below. He has relied upon the following judgments:

19. In State of Punjab versus Dharam Vir Singh

Jethi, 1994 Supreme Court Cases (Cri) 500, wherein it has

been held:

“2. Heard learned counsel for the State as well
as the contesting respondent. We are afraid that

the High Court was not right in quashing the
First Information Report on the plea that the
said respondent had no role to play and was
never the custodian of the paddy in question. In
fact it was averred in the counter-affidavit filed
in the High Court that the said respondent had
acted in collusion with Kashmira Singh resulting
in the latter misappropriating the paddy in
question. At the relevant point of time the

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respondent concerned, it is alleged, was in
overall charge of the Government Seed Farm,
Trehan. This allegation forms the basis of the
involvement of the respondent concerned. The

.

High Court was, therefore, wrong in saying that

the respondent concerned had no role to play. A
specific role is assigned to him, it may be proved

or may fail. In any case, pursuant to the First
Information Report the investigation was
undertaken and a charge-sheet or a police report

under section 173(2) of the code of criminal
procedure was filed in the court. If the
investigation papers annexed to the charge-sheet

do not disclose the commission of any crime by

the respondent concerned, it would be open to
the court to refuse to frame a charge, but
quashing of the First Information Report was

not permissible”.

20. The Hon’ble Supreme Court in Vineet Narain

and others versus Union of India and another, (1996) 2

Supreme Court Cases 199, has held:

“4. In this proceeding we are not concerned
with the merits of the accusations or the
individuals alleged to be involved, but only with
the performance of the legal duty by the
Government agencies to fairly, properly and
fully investigate into every such accusation
against every person, and to take the logical
final action in accordance with law.

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5. In case of persons against whom a prima
facie case is made out and a charge sheet is filed
in the competent court, it is that court which
will then deal with that case on merits, in

.

accordance with law.”

21. In Anukul Chandra Pradhan versus Union

of India and others, (1996) 6 Supreme Court Cases 354, it

has been held:

“4. In view of the fact that charge sheet
has been filed under Section 173 Criminal
Procedure Code in each of the above three cases

in the competent court, it is that court which is

now to deal with the case on merits, in
accordance with law. Any direction considered
necessary for further investigation, if any, or to

proceed against any other person who also
appears to have committed any offence in that
transaction, is within the domain of the

concerned court according to the procedure

prescribed by law. The purpose of this
proceeding is to command performance of the

duty under law to properly investigate into the
accusation of commission of the crime and to file
a charge-sheet in the competent court, if a prima
facie case is made out. This purpose has been
served in the above three cases, in respect of
which no further action in this proceeding is
called for.”

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22. In Nancy Bhatt and another versus State of

Himachal Pradesh and another, (Cr.MMO No.183 of

2014), it has been held:

.

“2. A preliminary objection has been raised by
the respondents that once the FIR has
culminated in charge-sheet, the present petition

has been rendered infructuous, because it is not
the FIR but the charge-sheet which forms the
basis of criminal trial.

7. Admittedly the FIR is not a substantive piece
of evidence. It is information of a cognizable

offence given under Section 154 of the Code of

Criminal Procedure (for short ‘Code’). The
legislature in its wisdom under the provisions of
the Code has given limited/restrictive power to

the Court to intervene at the stage of
investigation by the police. Investigation is the

exclusive domain of the police. Ordinarily, it is
only when the charge sheet is filed that the

Court is empowered either to take cognizance
and to frame charge or to refuse to do the same.

8. The FIR is the sheet anchor on the basis of
which the investigation ensues. However, once
the FIR on the basis of which investigation was
initiated has culminated into a charge-sheet, the
FIR does not remain the sheet anchor because
the same alone then cannot be read and has to be
read along with the material gathered by the

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investigating agency during the course of the
investigation.

9. It would, therefore, not be permissible for
this Court to quash the FIR or else that would

.

amount to annihilating a still born prosecution
by going into the merits on the plea of proof of
the prima facie case. Further, adverting to those

facts and giving findings on merits would
otherwise result in the grossest error of law
because this Court in exercise of its jurisdiction

under Section 482 of the Code cannot undertake
pre-trial of a criminal case.”

23. A Single Bench of this Hon’ble Court in Cr.MMO

No.56 of 2015, titled Lashkari Ram versus State of H.P.

Anr., has held:

“7. The prosecutrix in her statement under

section 154 Cr.P.C. has specifically stated that on
9.6.2014 at about 11 a.m. when she was all alone

in the courtyard and washing clothes then the
petitioner came there and threatened her that

she should advise her husband not to set his eyes
on the land or else he alongwith his son would
kill him. Thereafter with the bad intention he
caught hold of the prosecutrix and pushed her
because of which she sustained injuries on her
left leg as the same struck against the stairs
resulting in further injuries to her knee. This
statement of the prosecutrix is further

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corroborated by the Medico Legal Certificates
(MLCs).

8. Though the learned counsel for the petitioner
would argue that because the prosecutrix is a

.

Staff Nurse, therefore, she has manipulated the
MLCs and it was on the basis of such false
documents that petitioner is sought to be

involved in the present case.

9. The mere fact that prosecutrix is working as
Staff Nurse would not in itself establish that

MLCs are in any way false, however, these are
the matters which are required to be considered
during the course of the trial and at pre sent the

court is only required to consider the allegations
as contained in the First Information Report and
the final report, which as observed earlier,

prima-facie, indicate and make out the
commission of offence for which the petitioner
has been charged.”

24. In State of M.P. versus Awadh Kishore

Gupta and others, (2004) 1 Supreme Court Cases, 691, it

has been held:

“8. Exercise of power under Section
482 of the Code in a case of this nature is the
exception and not the rule. The section does not
confer any new powers on the High Court. It
only saves the inherent power which the Court
possessed before the enactment of the Code. It
envisages three circumstances under which the

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inherent jurisdiction may be exercised, namely,

(i) to give effect to an order under the Code, (ii)
to prevent abuse of the process of court, and (iii)
to otherwise secure the ends of justice. It is

.

neither possible nor desirable to lay down any

inflexible rule which would govern the exercise
of inherent jurisdiction. No legislative

enactment dealing with procedure can provide
for all cases that may possibly arise. Courts,
therefore, have inherent powers apart from

express provisions of law which are necessary
for proper discharge of functions and duties
imposed upon them by law. That is the doctrine

which finds expression in the Section which

merely recognizes and preserves inherent
powers of the High Courts. All courts, whether
civil or criminal possess, in the absence of any

express provision, as inherent in their
constitution, all such powers as are necessary to
do the right and to undo a wrong in course of

administration of justice on the principle

quando lex aliquid alique concedit, conceditur et
id sine quo res ipsa esse non potest (when the

law gives a person anything it gives him that
without which it cannot exist). While exercising
powers under the Section, the Court does not
function as a court of appeal or revision.
Inherent jurisdiction under the Section though
wide has to be exercised sparingly, carefully and
with caution and only when such exercise is
justified by the tests specifically laid down in the
Section itself. It is to be exercised ex debito

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26

justitiae to do real and substantial justice for the
administration of which alone courts exist.
Authority of the court exists for advancement of
justice and if any attempt is made to abuse that

.

authority so as to produce injustice, the court

has power to prevent such abuse. It would be an
abuse of process of the court to allow any action

which would result in injustice and prevent
promotion of justice. In exercises of the powers
court would be justified to quash any proceeding

if it finds that initiation/continuance of it
amounts to abuse of the process of court or
quashing of these proceedings would otherwise

serve the ends of justice. When no offence is

disclosed by the complaint, the court may
examine the question of fact. When a complaint
is sought to be quashed, it is permissible to look

into the materials to assess what the
complainant has alleged and whether any
offence is made out even if the allegations are

accepted in toto.”

11. As noted above, the powers possessed
by the High Court under Section 482 of the Code

are very wide and the very plenitude of the
power requires great caution in its exercise.
Court must be careful to see that its decision in
exercise of this power is based on sound
principles. The inherent power should not be
exercised to stifle a legitimate prosecution. High
Court being the highest Court of a State should
normally refrain from giving a prima facie

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27

decision in a case where the entire facts are
incomplete and hazy, more so when the evidence
has not been collected and produced before the
Court and the issues involved, whether factual

.

or legal, are of magnitude and cannot be seen in

their true perspective without sufficient
material. Of course, no hard and fast rule can be

laid down in regard to cases in which the High
Court will exercise its extraordinary jurisdiction
of quashing the proceeding at any stage. (See :

Janata Dal v. H.S. Chowdhary and Raghubir
Saran ( Dr.) v. State of Bihar and another ). It
would not be proper for the High Court to

analyse the case of the complainant in the light

of all probabilities in order to determine
whether a conviction would be sustainable and
on such premises, arrive at a conclusion that the

proceedings are to be quashed. It would be
erroneous to assess the material before it and
conclude that the complaint cannot be

proceeded with. In proceeding instituted on

complaint, exercise of the inherent powers to
quash the proceedings is called for only in a case

where the complaint does not disclose any
offence or is frivolous, vexatious or oppressive. If
the allegations set out in the complaint do not
constitute the offence of which cognizance has
been taken by the Magistrate, it is open to the
High Court to quash the same in exercise of the
inherent powers under Section 482 of the Code.
It is not, however, necessary that there should be
meticulous analysis of the case before the trial to

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28

find out whether the case would end in
conviction or acquittal. The complaint has to be
read as a whole. If it appears that on
consideration of the allegations in the light of

.

the statement made on oath of the complainant

that the ingredients of the offence or offences
are disclosed and there is no material to show

that the complaint is mala fide, frivolous or
vexatious, in that event there would be no
justification for interference by the High Court.

When an information is lodged at the police
station and an offence is registered, then the
mala fides of the informant would be of

secondary importance. It is the material

collected during the investigation and evidence
led in Court which decides the fate of the
accused person. The allegations of mala fides

against the informant are of no consequence and
cannot by itself be the basis for quashing the
proceeding. (See : Mrs. Dhanalakshmi v. R.

Prasanna Kumar and others (AIR 1990 SC

494), State of Bihar and another v. P. P. Sharma,
I.A.S. and another(1992 Suppl (1) SCC

222), Rupan Deol Bajaj (Mrs.) and another v.
Kanwar Pal Singh Gill and another (1995 (6) SCC

194), State of Kerala and others v. O.C. Kuttan
and others (1999 (2) SCC 651), State of U.P. v. O.
P. Sharma (1996 (7) SCC 705), Rashmi Kumar
(Smt.) v. Mahesh Kumar Bhada(1997 (2) SCC

397), Satvinder Kaur v. State (Govt. of NCT of
Delhi) and another (1999 (8) SCC 728), Rajesh

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29

Bajaj v. State NCT of Delhi and others AIR 1999
SC 1216).

12. These aspects were also highlighted

.

in State of Karnataka v. M. Devendrappa and

another.

13. It is to be noted that the investigation was

not complete and at that stage it was
impermissible for the High Court to look into
materials, the acceptability of which is

essentially a matter for trial. While exercising
jurisdiction under Section 482 of the Code, it is
not permissible for the Court to act as if it was a

trial Judge. Even when charge is framed at that

stage, the Court has to only prima facie be
satisfied about existence of sufficient ground for
proceeding against the accused. For that limited

purpose, the Court can evaluate material and
documents on records but it cannot appreciate

evidence. The Court is not required to
appreciate evidence to conclude whether the

materials produced are sufficient or not for
convicting the accused. In Chand Dhawan v.

Jawahar Lal, it was observed that when the
materials relied upon by a party are required to
be proved, no inference can be drawn on the
basis of those materials to conclude the
complaint to be unacceptable. The Court should
not act on annexures to the petitions
under Section 482 of the Code, which cannot be
termed as evidence without being tested and
proved. When the factual position of the case at

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30

hand is considered in the light of principles of
law highlighted, the inevitable conclusion is that
the High Court was not justified in quashing the
investigation and proceedings in the connected

.

case (Crime No. 116/94) registered by the Special

Police Establishment, Lokayukt, Gwalior. We set
aside the impugned judgment. The State shall be

at liberty to proceed in the matter further.”

25. In Central Bureau of Investigation versus

Ravi Shankar Srivastava, IAS and another, (2006) 7

Supreme Court Cases 188, it has been held:

“14. The High Court was not justified in
quashing the proceedings instituted on the basis
of the FIR lodged. The impugned judgment of

the High Court is set aside. The appeal is
allowed.”

26. In State of Madhya Pradesh versus Surendra

Kori, (2012) 10 Supreme Court Cases, 155, it has been held:

“14. The High Court in exercise of its
powers under Section 482 Cr.PC does not
function as a Court of appeal or revision. This
Court has, in several judgments, held that the
inherent jurisdiction under Section 482
Cr.PC, though wide, has to be used sparingly,
carefully and with caution. The High Court,
under Section 482 Cr.PC, should normally

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31

refrain from giving a prima facie decision in a
case where the entire facts are incomplete
and hazy, more so when the evidence has not
been collected and produced before the Court

.

and the issues involved, whether factual or

legal, are of wide magnitude and cannot be
seen in their true perspective without

sufficient material.

24. We are of the considered opinion that in

view of the magnitude of the crime, the
number of documents alleged to have been
executed fraudulently, the reports referred to

in the charge-sheets and the involvement of

the respondent etc. could be decided only if
an opportunity is given to the prosecution.
The High Court, in such circumstances, was

not justified in quashing all the First
Information Reports and the charge-sheets in

exercise of its powers under Section 482
Cr.PC.”

27. In Umesh Kumar versus State of Andhra

Pradesh, (2013) 10 Supreme Court Cases, 591, wherein it

has been held:

“20. The scope of Section 482 Cr.P.C. is
well defined and inherent powers could be
exercised by the High Court to give effect to an
order under the Cr.P.C.; to prevent abuse of the

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32

process of court; and to otherwise secure the
ends of justice. This extraordinary power is to be
exercised ex debito justitiae. However, in
exercise of such powers, it is not permissible for

.

the High Court to appreciate the evidence as it

can only evaluate material documents on record
to the extent of its prima facie satisfaction about

the existence of sufficient ground for
proceedings against the accused and the court
cannot look into materials, the acceptability of

which is essentially a matter for trial. Any
document filed alongwith the petition labelled as
evidence without being tested and proved,

cannot be examined. Law does not prohibit

entertaining the petition under Section
482 Cr.P.C. for quashing the charge sheet even
before the charges are framed or before the

application of discharge is filed or even during
its pendency of such application before the court
concerned. The High Court cannot reject the

application merely on the ground that the

accused can argue legal and factual issues at the
time of the framing of the charge. However, the

inherent power of the court should not be
exercised to stifle the legitimate prosecution but
can be exercised to save the accused to undergo
the agony of a criminal trial.”

23. The issue of mala fides looses its
significance if there is a substance in the
allegation made in complaint moved with malice.

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33

In Sheo Nandan Paswan v. State of Bihar Ors.,
AIR 1987 SC 877, this Court held as under:

“It is a well-established proposition of law

.

that a criminal prosecution, if otherwise

justifiable and based upon adequate evidence
does not become vitiated on account of mala

fides or political vendetta of the first informant
or complainant.”

27. The Scheme for inquiry/trial provided
under the Cr.P.C. is quite clear. After

investigation, report under Section 173(2)
Cr.P.C. is to be submitted before the competent
court i.e. magistrate having jurisdiction in the

matter and the magistrate may take cognizance

under Section 190 Cr.P.C. However, it is still
open to the magistrate to direct further
investigation under the provisions of Section

173(8) Cr.P.C. If the case is triable by the Court
of Sessions, the magistrate would commit the

case to the said court under Section 209 Cr.P.C.
It is for the court to examine whether there is

sufficient material collected during investigation
and filed alongwith the charge sheet that a

prima facie view can be taken to proceed against
the accused and in view thereof, frame charges
under Section 228 Cr.P.C. At this stage the
remedy available to the accused is to ask for
discharge under Section 227 Cr.P.C. In case
charges are framed the accused has to face the
trial, charges can be added/altered at any stage
of the trial, before the pronouncement of the

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judgment to suit the evidence adduced before
the court, under the provisions of Section
216 Cr.P.C. The only legal requirement is that a
witness has to be recalled as provided

.

under Section 217 Cr.P.C. when a charge is

altered or added by the court.

30. In State of Maharashtra v. Salman Salim
Khan, AIR 2004 SC 1189, this Court depreciated
the practice of entertaining the petition
under Section 482 Cr.P.C. at a pre-mature stage

of the proceedings observing as under:

“4….The arguments regarding the framing

of a proper charge are best left to be decided by

the trial court at an appropriate stage of the
trial. Otherwise as observed in this case,
proceedings get protracted by the intervention

of the superior courts
* * * * *

8. ….The High Court by the impugned

order had allowed the said application quashing
the charge under Section 304 IPC against the

respondent herein while it maintained the other
charges and direct the Magistrate’s court to
frame the de novo charges……

12. We are of the opinion that though it
is open to a High Court entertaining a petition
under Section 482 of the Code to quash charges
framed by the trial Court, same cannot be done
by weighing the correctness or sufficiency of
evidence. In a case praying for quashing of the

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35

charge, the principle to be adopted by the High
Court should be that if the entire evidence
produced by the prosecution is to be believed,
would it constitute an offence or not. The

.

truthfulness, the sufficiency and acceptability of

the material produced at the time of framing of
charge can be done only at the stage of trial.

……we think the High Court was not justified in
this case in giving a finding as to the non-
existence of material to frame a charge for an

offence punishable under Section 304, Part
II, IPC, therefore so far as the finding given by
the High Court is concerned, we are satisfied

that it is too premature a finding and ought not

to have been given at this stage …..”.

(Emphasis added).

The Court set aside the order of the High Court

and left it open to the trial court to modify the
charges in accordance with the evidence
adduced before it.

28. Similarly, in Vinay Tyagi versus Irshad Ali

alias Deepak and others, (2013) 5 Supreme Court Cases

762, the Hon’ble Supreme Court has held:

“15. A very wide power is vested in the
investigating agency to conduct further
investigation after it has filed the report in
terms of Section 173(2). The legislature has
specifically used the expression ‘nothing in this
section shall be deemed to preclude further
investigation in respect of an offence after a

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36

report under Section 173(2) has been forwarded
to the Magistrate’, which unambiguously
indicates the legislative intent that even after
filing of a report before the court of competent

.

jurisdiction, the Investigating Officer can still

conduct further investigation and where, upon
such investigation, the officer in charge of a

police station gets further evidence, oral or
documentary, he shall forward to the Magistrate
a further report or reports regarding such

evidence in the prescribed form. In other words,
the investigating agency is competent to file a
supplementary report to its primary report in

terms of Section 173(8). The supplementary

report has to be treated by the Court in
continuation of the primary report and the same
provisions of law, i.e., sub-section (2) to sub-

section (6) of Section 173 shall apply when the
Court deals with such report.”

22. ‘Further investigation’ is where the

Investigating Officer obtains further oral or

documentary evidence after the final report has
been filed before the Court in terms of Section

173(8). This power is vested with the Executive.
It is the continuation of a previous investigation
and, therefore, is understood and described as a
‘further investigation’. Scope of such
investigation is restricted to the discovery of
further oral and documentary evidence. Its
purpose is to bring the true facts before the
Court even if they are discovered at a
subsequent stage to the primary investigation. It

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37

is commonly described as ‘supplementary
report’. ‘Supplementary report’ would be the
correct expression as the subsequent
investigation is meant and intended to

.

supplement the primary investigation conducted

by the empowered police officer. Another
significant feature of further investigation is

that it does not have the effect of wiping out
directly or impliedly the initial investigation
conducted by the investigating agency. This is a

kind of continuation of the previous
investigation. The basis is discovery of fresh
evidence and in continuation of the same offence

and chain of events relating to the same

occurrence incidental thereto. In other words, it
has to be understood in complete
contradistinction to a ‘reinvestigation’, ‘fresh’ or

‘de novo’ investigation.”

“28. Next question that comes up for

consideration of this Court is whether the
empowered Magistrate has the jurisdiction to

direct ‘further investigation’ or ‘fresh
investigation’. As far as the latter is concerned,

the law declared by this Court consistently is
that the learned Magistrate has no jurisdiction
to direct ‘fresh’ or ‘de novo’ investigation.
However, once the report is filed, the Magistrate
has jurisdiction to accept the report or reject the
same right at the threshold. Even after accepting
the report, it has the jurisdiction to discharge
the accused or frame the charge and put him to
trial. But there are no provisions in the

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38

Code which empower the Magistrate to disturb
the status of an accused pending investigation or
when report is, filed to wipe out the report and
its effects in law. Reference in this regard can be

.

made to K. Chandrasekhar v. State of

Kerala [(1998) 5 SCC 223]; Ramachandran v. R.
Udhayakumar [(2008) 5 SCC 413], Nirmal Singh

Kahlon v State of Punjab Ors. [(2009) 1 SCC
441]; Mithabhai Pashabhai Patel Ors. v. State
of Gujarat [(2009) 6 SCC 332]; andBabubhai v.

State of Gujarat.

“39. The contrary view taken by the Court in
the cases of Reeta Nag (supra) and Randhir

Singh (supra) do not consider the view of this

Court expressed in Bhagwant Singh (supra). The
decision of the Court in Bhagwant Singh (supra)
in regard to the issue in hand cannot be termed

as an obiter. The ambit and scope of the power of
a magistrate in terms of Section 173 of the Code
was squarely debated before that Court and the

three Judge Bench concluded as afore-noticed.

Similar views having been taken by different
Benches of this Court while following Bhagwant

Singh (supra), are thus squarely in line with the
doctrine of precedence. To some extent, the view
expressed in Reeta Nag (supra), Ram Naresh
(supra) and Randhir Singh (supra), besides being
different on facts, would have to be examined in
light of the principle of stare decisis.”

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39

29. The Hon’ble Apex Court in Bhaskar Lal

Sharma and another vs. Monica and others, (2014) 3

Supreme Court Cases 383, has held as under:

.

“10. We disagree. ‘Cruelty’ as defined
in the Explanation to Section 498A of the

Penal Code has a twofold meaning. The
contentions of Shri Sharan do not deal with
the Explanation (a) and is exclusively
confined to the meaning dealt with by

Explanation (b). Under Explanation (a)
conduct which is likely to cause injury or
danger to life, limb or health (mental or
physical) would come within the meaning

of the expression “cruelty”. While instances

of physical torture would be plainly
evident from the pleadings, conduct which
has caused or is likely to cause mental
injury would be far more subtle. Having

given our anxious consideration to the
averments made in the complaint petition,
we are of the view that the statements

made in the relevant paragraphs of the
complaint can be understood as containing

allegations of mental cruelty to the
complainant. The complaint, therefore,
cannot be rejected at the threshold.”

“11. The facts, as alleged, therefore
will have to be proved which only be done
in the course of a regular trial. It is wholly
unnecessary for us to embark upon a
discourse as regards the scope and ambit of
the Court’s power to quash a criminal
proceeding. Appreciation, even in a
summary manner, of the averments made
in a complaint petition or FIR would not be
permissible at the stage of quashing and

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40

the facts stated will have to be accepted as
they appear on the very face of it. This is
the core test that has to be applied before
summoning the accused. Once the
aforesaid stage is overcome, the facts

.

alleged have to be proved by the

complainant/ prosecution on the basis of
legal evidence in order to establish the
penal liability of the person charged with

the offence.”

“12. Insofar as the offence
under Section 406 of the Penal Code is

concerned, it is clear from the averments
made in paragraphs 16, 18, 24 and 29 of the
complaint petition that it has been alleged
that the appellants were entrusted or had

exercised dominion over the property

belonging to the respondent and further
that the appellants had unlawfully retained
the same. The statements made in para 6 of
the complaint also alleges retention of cash

and other gifts received by the respondent-
complainant at the time of her marriage to
the accused-appellant No. 2. In the face of

the said averments made in the complaint
petition, it cannot be said that the

complaint filed by the respondent is shorn
of the necessary allegations to prima facie

sustain the case of commission of the
offence under Section 406 by the
appellants.”

30. In State of Bihar and another etc. etc. vs.

P.P. Sharma and another etc. etc., AIR 1991 Supreme

Court, 1260, it has been held:

“16. It is thus obvious that `the
annexures’ were neither part of the police-

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41

reports nor were relied upon by the
investigating officer. These documents were
produced by the respondents before the High
Court along with the writ petitions. By treating

.

`the annexures’ and affidavits as evidence and by

converting itself into a trial court the High Court
pronounced the respondents to be innocent and

quashed the proceedings. The last we can say is
that this was not at all a case where High Court
should have interfered in the exercise of its

inherent jurisdiction. This Court has repeatedly
held that the appreciation of evidence is the
function of the criminal courts. The High Court,

under the circumstances, could not have

assumed jurisdiction and put an end to the
process of investigation and trial provided under
the law. Since the High Court strongly relied

upon ‘the annexures’ in support of its findings,
we may briefly examine these documents.”

“23. The informant, being in a peculiar position
having lodged the accusation, is bound to be

looked-down upon by the accused-persons. The
allegations of mala fide therefore against the

informant based on the facts after the lodging of
the FIR are of no consequence and cannot be the
basis for quashing the proceedings. As regards
the investigating officer, He has wide powers
under the criminal procedure code. He has to
perform his duties with the sole object of
investigating the allegations and in the course of
the investigation he has to take into

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42

consideration the relevant material whether
against or in favour of the accused. Simply
because the investigating officer, while acting
bona fide rules out certain documents as

.

irrelevant, it is no ground to assume that the

acted mala fide. The police-report submitted by
the investing officer has to pass through the

judicial scrutiny of a Magistrate at the stage of
taking cognizance. Although the accused person
has no right to be heard at that stage but in case

the accused person has any grouse against the
investigating officer or with the method of
investigation he can bring to the notice of the

Magistrate his grievances which can be looked

into by the Magistrate. When the police report
under Section 173 Cr. P.C. has to go through the
judicial scrutiny it is not open to the High Court

to find fault with the same on the ground that
certain documents were not taken into
consideration by the investigating officer. We do

not, therefore, agree with the High Court that

the FIR and the investigation is vitiated because
of the mala fide on the part of the informant and

the investigating officer. We may, however,
notice the factual-matrix on the basis of which
the High Court has reached the findings of mala
fide against the informant and the
investigating officer. The High Court based the
findings against the informant R.K. Singh on the
following materials :

1. R.K. Singh, a comparatively junior officer had
twice served under P.P. Sharma as Asstt.

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43

Magistrate, Gaye and as Sub-Divisional Officer
at Jamui.

2. Within 10 days of taking over as Managing
Director of BISCO, he sent proposal for initiating
surcharge proceedings against Shri P.P. Sharma,

.

which was rejected by the then Registrar. R.K.

Singh revived the proposal when later on the
took over he charge as Registrar.

3. R.K. Singh deliberately violated Government
instructions dated November 17, 1986 requiring
prior approval of the Administrative department
before initiating criminal proceedings against a
Government officer.

4. R.K. Singh did not hand over the relevant files
and papers of BISCO to the investigating officer
for more than a week in order to gain time to
tamper/ destroy/forge the BISCO files. He

continued to direct the investigating officer

throughout the investigation. Even affidavit was
filed by the investigating officer on his behalf.

5. The documents in possession of R.K.Singh
were such that any reasonable and fair minded

person would not have filed the FIR. He acted
mala fide in ignoring the documents and lodging
the FIR.

6. R.K. Singh got the sanction for prosecution of
P.P. Sharma issued on the last date of arguments

before the Special Judge although earlier the
investigating officer had stated that sanction
was not required.

7. R.K. Singh filed affidavit denying the
allegations of mala fide in the High Court. He
appeared through counsel and contested the
proceedings throughout.

8. In a letter to Chief Secretary, Bihar after the
lodging of FIR R.K. Singh referred to P.P.
Sharma as “gutter rat” and “common crockery
thief”.

“29. The findings of the High Court that no
offence is made out against the respondents

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44

under the Essential Commodities Act is also
based on the appreciation of `the annexures’ and
other disputed facts on the record and as such is
untenable for the reasons already indicated

.

above.”

“61. An investigating officer who is not
sensitive to the constitutional mandates, may be

prone to trample upon the personal liberty of a
person when he is actuated by mala fides. But as
stated the accused, at the earliest should bring

to the notice of the court of the personal bias and
his reasonable belief that an objective
investigation into the crime would not be had at

the hands of the investigator “by pleading and

proving as of fact with necessary material facts.
If he stands by till the charge-sheet was filed, it
must be assumed that he has waived his

objection. He cannot turn down after seeing the
adverse report to plead the alleged mala fides.
(Equally laying the information before the

Station House Officer of the commission of

cognizable crime merely sets the machinery if
the investigation in motion to act in accordance

with the procedure established by law.) The
finding of the High Court, therefore, that the
F.I.R. charge-sheet violate the constitutional
mandate under Article 21 is without substance.”

31. A Full Bench of Andhra Pradesh High Court, in

Girish Sarwate versus State of A.P. and another, 2005

CRI.L.J.729, has held:

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45

“11. State of Tamilnadu v. Thirukkural
Perumal7 was the case, in which the First
Information Report had been filed and
investigation was in progress, then an

.

application came to be filed under Section

482 Cr.P.C in the High Court and the High Court
allowed the application and quashed the First

Information Report. The Supreme Court found
that the learned Single Judge of the High Court
while quashing proceedings had placed reliance

on some evidence collected by the Investigating
Agency during the investigation and the
Supreme Court was of the view that the

approach of the Judge in relying upon the

evidence, which was yet to be produced before
the trial Court was not proper. Then it held that:

“The power of quashing an FIR and

criminal proceeding should be exercised

sparingly by the Courts. Indeed, the High Court

has the extraordinary or inherent power to
reach out injustice and quash the first

information report and criminal proceedings,
keeping in view the guidelines laid down by this

Court in various judgments [reference in this
connection may be made with advantage to State
of Haryana v.Bhajan Lal, 1992 Supp(1)SCC 335-
1992 SCC (Cri)426), but the same has to be done
with circumspection. The normal process of the
criminal trial cannot be cut short in a rather
casual manner.”

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“29. In the light of these judgments of the
Supreme Court, we have no doubt in our mind
that under Section 482 Cr.P.C, the High Court

.

has the power to quash an FIR or even a

complaint subject to limitations and conditions
laid down by Supreme Court in various

judgments. It need not wait for completion of
investigation and taking cognizance of by the
Magistrate. There is no dispute that this power

has to be exercised by the High Courts very
sparingly with circumspection and also in rarest
of rare cases. Though there are limitations on

exercise of power by the High Court, yet that

would not in any way suggest that High Court
lacks the power.”

32. Mr. Suneet Goel, learned counsel for the victims

has argued that the petitioners have no case in their favour

and the evidence on record shows that the petitioners have

committed offence under Section 304 A read with Section 34

of the Indian Penal Code, as they were having knowledge

that due to their negligence, the victim’s wards will die and

in fact they died. To support his contentions, he has relied

upon a decision rendered in Amit Kapoor versus Ramesh

Chander and another, (2012) 9 Supreme Court Cases

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47

460, in which, it has been held:

“16. The above-stated principles clearly
show that inherent as well as revisional

.

jurisdiction should be exercised cautiously. If
the jurisdiction under Section 482 of the Code
in relation to quashing of an FIR is

circumscribed by the factum and caution
afore-noticed, in that event, the revisional
jurisdiction, particularly while dealing with

framing of a charge, has to be even more
limited.

r “27. Having discussed the scope of

jurisdiction under these two provisions,
i.e., Section 397and Section 482 of the Code and
the fine line of jurisdictional distinction, now

it will be appropriate for us to enlist the
principles with reference to which the courts

should exercise such jurisdiction. However, it
is not only difficult but is inherently

impossible to state with precision such
principles. At best and upon objective analysis

of various judgments of this Court, we are able
to cull out some of the principles to be
considered for proper exercise of jurisdiction,
particularly, with regard to quashing of charge
either in exercise of jurisdiction under
Section 397 or Section 482 of the Code or
together, as the case may be :

08/12/2017 23:02:35 :::HCHP
48

***** *** *** ***

27.3. The High Court should not unduly
interfere. No meticulous examination of the

.

evidence is needed for considering whether

the case would end in conviction or not at the
stage of framing of charge or quashing of

charge.

***** *** *** ***

27.16. These are the principles which
individually and preferably cumulatively (one
or more) be taken into consideration as

precepts to exercise of extraordinary and wide

plenitude and jurisdiction under Section 482 of
the Code by the High Court. Where the factual
foundation for an offence has been laid down,

the courts should be reluctant and should not
hasten to quash the proceedings even on the

premise that one or two ingredients have not

been stated or do not appear to be satisfied if
there is substantial compliance to the
requirements of the offence.”

[

33. In Ravindra Kumar Madhanlal Goenka

Anr. v. M/s. Rugmini Ram Raghav Spinners P. Ltd.,

AIR 2009 Supreme Court 2383, it has been held:-

“15. While considering the facts of the present
case, we are of the considered opinion that the

08/12/2017 23:02:35 :::HCHP
49

present case is not one of those extreme cases
where criminal prosecution can be quashed by
the court at the very threshold. A defence case
is pleaded but such defence is required to be

.

considered at a later stage and not at this

stage. The appellants would have ample
opportunity to raise all the issues urged in this

appeal at an appropriate later stage, where
such pleas would be and could be properly
analysed and scrutinized.

16.

this

In view of the aforesaid position, we
decline to interfere with the criminal proceeding
at
r stage. The appeal is consequently

dismissed.”

34. In State of Andhra Pradesh versus

Goloconda Linga Swami, (2004) 6 SCC 522, it has been

held:

“5. Exercise of power under Section
482 of the Code in a case of this nature is the
exception and not the rule. The Section does

not confer any new powers on the High Court.
It only saves the inherent power which the
Court possessed before the enactment of the
Code. It envisages three circumstances under
which the inherent jurisdiction may be
exercised, namely, (i) to give effect to an order
under the Code, (ii) to prevent abuse of the
process of court, and (iii) to otherwise secure
the ends of justice. It is neither possible nor

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50

desirable to lay down any inflexible rule which
would govern the exercise of inherent
jurisdiction. No legislative enactment dealing
with procedure can provide for all cases that

.

may possibly arise. Courts, therefore, have

inherent powers apart from express provisions
of law which are necessary for proper
discharge of functions and duties imposed

upon them by law. That is the doctrine which
finds expression in the Section which merely
recognizes and preserves inherent powers of

the High Courts. All courts, whether civil or
criminal possess, in the absence of any express
provision, as inherent in their constitution, all
such powers as are necessary to do the right
and
r to undo a wrong in course of

administration of justice on the principle
quando lex aliquid alique concedit, conceditur
et id sine quo res ipsa esse non potest (when

the law gives a person anything it gives him
that without which it cannot exist). While
exercising powers under the Section, the Court

does not function as a court of appeal or
revision. Inherent jurisdiction under the

Section though wide has to be exercised
sparingly, carefully and with caution and only

when such exercise is justified by the tests
specifically laid down in the Section itself. It is
to be exercised ex debito justitiae to do real
and substantial justice for the administration
of which alone courts exist. Authority of the
court exists for advancement of justice and if
any attempt is made to abuse that authority so
as to produce injustice, the court has power to
prevent such abuse. It would be an abuse of
process of the court to allow any action which

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51

would result in injustice and prevent
promotion of justice. In exercises of the powers
court would be justified to quash any
proceeding if it finds that initiation or

.

continuance of it amounts to abuse of the

process of court or quashing of these
proceedings would otherwise serve the ends of
justice. When no offence is disclosed by the

complaint, the court may examine the question
of fact. When a complaint is sought to be
quashed, it is permissible to look into the

materials to assess what the complainant has
alleged and whether any offence is made out
even if the allegations are accepted in toto.

7. In dealing with the last category, it is

important to bear in mind the distinction
between a case where there is no legal
evidence or where there is evidence which is
clearly inconsistent with the accusations

made, and a case where there is legal evidence
which, on appreciation, may or may not

support the accusations. When exercising
jurisdiction under Section 482 of the Code, the

High Court would not ordinarily embark upon
an enquiry whether the evidence in question is
reliable or not or whether on a reasonable

appreciation of it accusation would not be
sustained. That is the function of the trial
Judge. Judicial process no doubt should not be
an instrument of oppression, or, needless
harassment. Court should be circumspect and
judicious in exercising discretion and should
take all relevant facts and circumstances into
consideration before issuing process, lest it
would be an instrument in the hands of a

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52

private complainant to unleash vendetta to
harass any person needlessly. At the same time
the Section is not an instrument handed over
to an accused to short-circuit a prosecution

.

and bring about its sudden death. The scope of

exercise of power under Section 482 of the
Code and the categories of cases where the
High Court may exercise its power under it

relating to cognizable offences to prevent
abuse of process of any court or otherwise to
secure the ends of justice were set out in some

detail by this Court in State of Haryana v.
Bhajan Lal (1992 Supp (1) SCC 335) A note of
caution was, however, added that the power
should be exercised sparingly and that too in

rarest of rare cases. The illustrative categories

indicated by this Court are as follows:

“(1) Where the allegations made in the first
information report or the complaint, even if

they are taken at their face value and accepted
in their entirety do not prima facie constitute

any offence or make out a case against the
accused.

(2) Where the allegations in the first
information report and other materials, if any,

accompanying the FIR do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate
within the purview of Section 155(2) of the
Code.

(3) Where the un-controverted allegations
made in the F.I.R. or complaint and the
evidence collected in support of the same do

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53

not disclose the commission of any offence and
make out a case against the accused.

(4) Where the allegations in the F.I.R. do not
constitute a cognizable offence but constitute

.

only a non-cognizable offence, no investigation
is permitted by a Police Officer without an
order of a Magistrate as contemplated under S.

155(2) of the Code.

(5) Where the allegations made in the FIR or
complaint are so absurd and inherently

improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding

against the accused.

(6) Where there is an express legal bar
engrafted in any of the provisions of the
Code or the concerned Act (under which a

criminal proceeding is instituted) to the
institution and continuance of the proceedings
and/or where there is a specific provision

in the Code or the concerned Act, providing
efficacious redress for the grievance of the

aggrieved party.

(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge.

8. As noted above, the powers possessed by
the High Court under Section 482 of the Code
are very wide and the very plenitude of the
power requires great caution in its exercise.

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54

Court must be careful to see that its decision
in exercise of this power is based on sound
principles. The inherent power should not be
exercised to stifle a legitimate prosecution.

.

High Court being the highest Court of a State

should normally refrain from giving a prima
facie decision in a case where the entire facts
are incomplete and hazy, more so when the

evidence has not been collected and produced
before the Court and the issues involved,
whether factual or legal, are of magnitude and

cannot be seen in their true perspective
without sufficient material. Of course, no hard
and fast rule can be laid down in regard to
cases in which the High Court will exercise its

extraordinary jurisdiction of quashing the

proceeding at any stage. (See : The Janata Dal
etc. v. H.S. Chowdhary and others, etc. (AIR
1993 SC 892), Dr. Raghubir Saran v. State of

Bihar and another (AIR 1964 SC 1)). It would
not be proper for the High Court to analyse the
case of the complainant in the light of all

probabilities in order to determine whether a
conviction would be sustainable and on such

premises, arrive at a conclusion that the
proceedings are to be quashed. It would be

erroneous to assess the material before it and
conclude that the complaint cannot be
proceeded with. In proceeding instituted on
complaint, exercise of the inherent powers to
quash the proceedings is called for only in a
case where the complaint does not disclose any
offence or is frivolous, vexatious or oppressive.
If the allegations set out in the complaint do
not constitute the offence of which cognizance
has been taken by the Magistrate, it is open to

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55

the High Court to quash the same in exercise
of the inherent powers under Section 482 of
the Code. It is not, however, necessary that
there should be meticulous analysis of the case

.

before the trial to find out whether the case

would end in conviction or acquittal. The
complaint/F.I.R. has to be read as a whole. If it
appears that on consideration of the

allegations in the light of the statement made
on oath of the complainant or disclosed in the
F.I.R. that the ingredients of the offence or

offences are disclosed and there is no material
to show that the complaint/F.I.R. is mala fide,
frivolous or vexatious, in that event there
would be no justification for interference by

the High Court. When an information is lodged

at the police station and an offence is
registered, then the mala fides of the
informant would be of secondary importance.

It is the material collected during the
investigation and evidence led in Court which
decides the fate of the accused person. The

allegations of mala fides against the informant
are of no consequence and cannot by itself be

the basis for quashing the proceeding. (See
: Mrs. Dhanalakshmi v. R. Prasanna Kumar

and others (AIR 1990 SC 494), State of Bihar
and another v. P. P. Sharma, I.A.S. and
another (1992 Suppl (1) SCC 222), Rupan Deol
Bajaj (Mrs.) and another v. Kanwar Pal Singh
Gill and another (1995 (6) SCC 194), State of
Kerala and others v. O.C. Kuttan and
others (1999 (2) SCC 651), State of U.P. v. O. P.
Sharma (1996 (7) SCC 705), Rashmi Kumar
(Smt.) v. Mahesh Kumar Bhada (1997 (2) SCC

397), Satvinder Kaur v. State (Govt. of NCT of

08/12/2017 23:02:35 :::HCHP
56

Delhi) and another (1999 (8) SCC 728), Rajesh
Bajaj v. State NCT of Delhi and others AIR
1999 SC 1216), State of Karnataka v. M.
Devendrappa and another (2002 (3) SCC 89).”

.

35. In rebuttal, the learned counsel for the

petitioners has argued that though the petitioners can argue

on charge, but this Hon’ble Court has jurisdiction to quash

the proceedings/charge sheet, including the F.I.R., as has

been held in Umesh Kumar versus State of Andhra

Pradesh and another, (2013) SCC, 591.

36. To appreciate the arguments of the learned

counsel for the parties, I have gone through the record in

detail. The statements of the witnesses on record, i.e. Bihari

Lal, Pawan Kumar, Kuram Dutt, Digeshwar and Chetan

Chavan and other students of the College are material to be

considered, whether there is a prima facie case against the

petitioners or no case is made out against the petitioners

and the FIR is required to be quashed.

37. Firstly, coming to the statement of Bihari Lal.

He has stated that he is a Part-time Photographer and on

that day, he was attending a marriage party. He saw some

students in River Beas, who were clicking photographs. At

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57

that time, there was very less water in river Beas, but all of

a sudden, the water level increased drastically, due to

which, some of the students were washed away in the heavy

.

flow of water. Some of the students tried to come out of the

river by swimming, but could not succeed. He has stated

that the local people had also already reached at the place

of incident, who shouted and blew whistle very loudly, but

some students could not understand the meaning of

shouting and whistling by the local residents. Similarly, in

his statement Puran Chand, who was a Tea Stall owner in

the vicinity, has stated that on 08.6.2014, when he was

present at his Tea Stall, two tourist buses came from Mandi

side and stopped at the road side. The tourists, who were

mostly male and female students, came down from the

buses, out of them, 2-3 students came to his tea stall and he

enquired from them that from where they had come. They

informed him that they had come from Hyderabad for sight-

seeing. He has also stated that he suggested them not to go

to river Beas and told them that sometimes, the water level

rises all of a sudden because of release of water by the

Project authorities, but they did not heard his suggestion

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58

and all the students got down to the river bed. He has

further stated that after about twenty minutes, the local

people blew the whistles and started shouting very loudly to

.

tell the students that the water has been released from the

Dam and the water is increasing rapidly and told them to

come out of the river as early as they can, but they did not

come out of the water. He has stated that the level of water

increased rapidly and some of the students washed away in

the heavy flow of water. Some of the students came out of

the water by swimming and some were dragged by the local

people. He has further stated that neither he heard the

sound of any Hooter while water was being released by the

Project authorities nor the Hooter was rung on that day by

the Project authorities. Further, he has stated that the

accident was due to the negligence of Project authorities and

because of release of water without sounding of any

Siren/Hooter.

38. The statements of Puran Chand, Pawan Kumar,

Kuram Dutt and Bhim Sen are to the effect that they did

not hear the sound of Siren/Hooter on that day. The other

material witnesses whose statement is recorded by the

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59

police are Digeshwar son of Nokh Singh, who was the

resident of village Tahula and a farmer, has stated that on

08.6.2014, when he along with Noop Ram was sitting at the

.

side of Tea Stall of Puran Chand at Shala-Nalla, two private

buses came from the Mandi side and was stopped at the side

of the road. The students came down from the buses and

went to the river Beas and started noising and clicking

photographs. He has stated that at about 06.35 pm, some

people were attending the marriage at the residence of

Hukme Ram, started blowing whistles and were asking the

students to come out of the river, as the flow of water was

increasing rapidly and they also went down towards the

river and also asked the students to come out of the river,

but the students did not bother their suggestion and kept

standing at a stone. The flow of water of the river had

reached upto the stone where the students were gathered.

However, some of the students jumped out of the river.

They dragged 2-4 students from the river. Due to increase of

flow of water, some of the students could not jump and

washed away in the heavy flow of water. Thereafter, he

brought some ropes, but by that time, the students were

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60

already washed away. In the end, he has stated that he did

not hear any sound of Hooter or Siren at the place of

incident on that day.

.

39. Now, the statement of other student, namely

Chetan Chavan, who was in the bus alongwith the Wards of

the victims, who were washed away, has stated that he

rushed back to the river bank to save his life, but 24 of his

batch mates and one Tour Operator lost their lives and

during this incident, no one from the Faculty stopped the

students from going into the river bed. Similar is the

statement of Raman Teja, N. Biswas, T.V Suharsha and P.

Surjan that no Faculty members stopped the students from

going down to the river bank.

40. The victims were 24 in number and were in the

age group of 18 to 22 years approximately. They were

unaware about the terrain of Himachal. They were brought

on the Industrial tour, as is clear from the documents, i.e.

the undertaking of their parents given to the College

authorities and these students were not having knowledge

about the river Beas or the nature of the rivers in

the hills.

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61

41. Now, coming to the role of the Faculty members,

one of the Faculty member, who was accompanying the

students, has made her children to sit in the bus, when she

.

went to the river alongwith other colleagues. The faculty

member had already also visited Manali for the similar

purpose, as has been disclosed by one of the Faculty member

and they were having knowledge with respect to the river

Beas and the terrain and in these circumstances, these

Faculty members were required to stop the students from

going to the river Beas, but they themselves accompanied

the students and when water came, inspite of the warning,

the students and they rushed to the bank of river. However,

the local people remain able to save certain students.

42. In these circumstances, this Court finds that

action of the Faculty members is that they were knowing

that by their act in not stopping the students from going to

the river bed, they are likely to die in all probabilities. In

these circumstances also, this Court finds that the case

under Section 304-A, read with Section 34 IPC, prima facie

is made out. The Hon’ble Supreme Court in Pundurang

and Takia others versus State of Hyderabad,

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62

reported in (1995) SCC 216, has held that common

intention in Section 34 IPC is pre-supposed prior concert,

but as in the present case, the petitioners were having

.

knowledge that by such adventure, the students will die and

not stopping them from going to the river bed itself shows

that they were having the knowledge that in all

probabilities the students will die due to their act and by

not stopping the students. So, with due respect, to the

judgment, the same is of no help to the petitioners.

43. In a case titled Sushil Ansal versus State

(2014) 6 SCC 173, the Hon’ble Supreme Court has held that

breach of duty was not causa causans of the death of victim

or personal safety causing hurt does not come under the

definition of Section 304 of the Indian Penal Code, but in the

present case, the action of the petitioners in sending the

students to the river bed and not stopping them when they

were going to the river bed, which is not a tourist place and

asking them not to go there and when the Faculty members

were knowing that it was dangerous to go there, as the

Tea- Stall owner of that place has also given a hint in this

regard, this Court has come to the conclusion that the

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63

negligence was so gross that it is a criminal negligence and

punishable under Section 304 IPC and so this judgment is of

no help to the petitioners.

.

44. Similarly, in S.N. Hussain versus The

State of Andhra Pradesh (1972) 3

Supreme Court Cases 18, it has been held:

“3. The appellant’s defence was that he

was neither rash nor negligent and the
accident was unavoidable. He did not realize
at all that a Goods train was passing at the

time and since the gate was open he crossed

the railway crossing absolutely oblivious of the
fact that a train was approaching. The learned
Trial Magistrate accepted the defence but the

High Court was pleased to hold that the
appellant was both rash and negligent.”

45. In the present case, the Faculty members were

aware about the danger in the river bed, to go there and

even when the Tea-Stall owner has also given a hint in this

regard to not to go to the river bed, this Court has come to

the conclusion that the negligence was so gross that it is a

criminal negligence and punishable under Section 304 of

the Indian Penal Code, so, this judgment is of no help to

08/12/2017 23:02:36 :::HCHP
64

the petitioners and neither it is applicable to the facts and

circumstances of the present case.

46. The learned counsel for the petitioner has

.

argued that there was no common meeting of mind and to

support his contention, he has relied upon the judgment

rendered in Vijendra Singh vs. State of U.P., AIR 2017

Supreme Court 860, wherein it has been held:

“25. In the case at hand, it is
contended that there is no injury caused by
lathi or ballam. Absence of any injury

caused by a lathi cannot be the governing
factor to rule out Section 34 IPC. It is
manifest from the evidence that the

accused-appellants had accompanied the
other accused persons who were armed

with gun and they themselves carried lathi
and ballam respectively. The carrying of

weapons, arrival at a particular place and

at the same time, entering into the shed
and murder of the deceased definitely
attract the constructive liability as
engrafted under Section 34 IPC.”

47. However, in the present case, there was a

meeting of mind between the faculty members that they

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65

were knowing that their act in not stopping the students

from the going to the river bed, they will die in all

probabilities, in case water comes, which generally happens

.

in the rivers of the hills. So, it is the Faculty members who

were knowing that these students are not aware about the

facts how to judge whether the water is likely to come in the

river, which is generally sensed by the blow of cold wind

from the upper side of the rivers, but these students were

innocent that they could not make out the danger when the

local people started blowing the whistles and dragging the

students to safety. The Faculty members knowing fully

aware about the consequences about the students going into

the river bed, and students were not aware about the

perennial rivers coming from the glaciers and their nature

and the release of water from the Dams from time to time

which the Faculty members were knowing,(as it has come in

the statements of the Faculty members that they had earlier

come to Manali also and knows about Manali). Further, the

parents could not have allowed the petitioners to take their

children to Manali, but as it was an industrial tour, it is not

understandable as to why these students were taken to

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66

Manali, whereas there is no Industry at Manali, which

clearly shows that it is the negligence on the part of the

Faculty members and it is so grave that they are liable for

.

committing an offence punishable under Sections 336 and

304-A read with Section 34 of the Indian Penal Code. Other

judgment relied upon by the learned counsel for the

petitioners, is Suresh and another versus State of U.P.,

(2001)3 Supreme Court Cases 673, wherein the Hon’ble

Supreme Court, while discussing, has held :

“Para 40. Participation in the crime in

furtherance of the common intention cannot
conceive of some independent criminal act by all
accused persons, besides the ultimate criminal

act because for that individual act law takes care
of making such accused responsible under the

other provisions of the Code. The word “act” used
in Section 34 denotes a series of acts as a single

act. What is required under law is that the
accused persons sharing the common intention

must be physically present at the scene of
occurrence and be shown to not have dissuaded
themselves from the intended criminal act for
which they shared the common intention.
Culpability under Section 34 cannot be excluded
by mere distance from the scene of occurrence.
The presumption of constructive intention,
however, has to be arrived at only when the
Court can, with judicial servitude, hold that the

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67

accused must have pre-conceived result that
ensued in furtherance of the common intention.
A Division Bench of the Patna High Court in
Shatrughan Patar V/s. Emperor, AIR 1919 Pat

.

111 held that it is only when a Court with some

certainty hold that a particular accused must
have pre-conceived or pre-meditated the result

which ensued or acted in concert with others in
order to bring about that result, that Section 34
may be applied.”

48.

The settled law, in fact, is in favour of the

prosecution as each of the Faculty member was knowing

that by not stopping the students to go to the river bed, they

were likely to die, which is also clear from the fact that

while going into the river bed, Faculty member had not

taken own child to the river bed. In these circumstances,

this Court finds that the law, as cited by the learned counsel

for the petitioners is of no help to the present petitioners.

49. Now coming to the arguments advanced by the

learned Additional Advocate General appearing for the

respondent-State that the petitioners have a chance to argue

the matter at the time of framing of charges and he can

satisfy the learned Court below. The law as cited by the

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68

learned Additional Advocate General was considered, which

is discussed hereinabove alongwith the law, as cited by the

learned Counsel for the petitioners and the learned counsel

.

for the victims, this Court finds that taking into

consideration the facts which have come on record, there is

no occasion to quash the proceedings against the petitioners.

Further, in case State of M.P. versus Awadh Kishore

Gupta and others, (2004) l Supreme Court Cases 691, it

has been held:

“8. Exercise of power under Section 482 of
the Code in a case of this nature is the
exception and not the rule. The section does

not confer any new powers on the High Court.
It only saves the inherent power which the

Court possessed before the enactment of the
Code. It envisages three circumstances under

which the inherent jurisdiction may be
exercised, namely, (i) to give effect to an order

under the Code, (ii) to prevent abuse of the
process of court, and (iii) to otherwise secure
the ends of justice. It is neither possible nor
desirable to lay down any inflexible rule which
would govern the exercise of inherent
jurisdiction. No legislative enactment dealing
with procedure can provide for all cases that
may possibly arise. Courts, therefore, have

08/12/2017 23:02:36 :::HCHP
69

inherent powers apart from express provisions
of law which are necessary for proper
discharge of functions and duties imposed
upon them by law. That is the doctrine which

.

finds expression in the Section which merely

recognizes and preserves inherent powers of
the High Courts. All courts, whether civil or

criminal possess, in the absence of any express
provision, as inherent in their constitution, all
such powers as are necessary to do the right

and to undo a wrong in course of
administration of justice on the principle
quando lex aliquid alique concedit, conceditur

et id sine quo res ipsa esse non potest (when

the law gives a person anything it gives him
that without which it cannot exist). While
exercising powers under the Section, the Court

does not function as a court of appeal or
revision. Inherent jurisdiction under the

Section though wide has to be exercised

sparingly, carefully and with caution and only
when such exercise is justified by the tests

specifically laid down in the Section itself. It is
to be exercised ex debito justitiae to do real
and substantial justice for the administration
of which alone courts exist. Authority of the
court exists for advancement of justice and if
any attempt is made to abuse that authority so
as to produce injustice, the court has power to
prevent such abuse. It would be an abuse of
process of the court to allow any action which

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70

would result in injustice and prevent
promotion of justice. In exercises of the powers
court would be justified to quash any
proceeding if it finds that initiation/

.

continuance of it amounts to abuse of the

process of court or quashing of these
proceedings would otherwise serve the ends of

justice. When no offence is disclosed by the
complaint, the court may examine the question
of fact. When a complaint is sought to be

quashed, it is permissible to look into the
materials to assess what the complainant has
alleged and whether any offence is made out

even if the allegations are accepted in toto.

9. In R.P. Kapur v. State of Punjab (AIR
1960 SC 866), this Court summarized some

categories of cases where inherent power can
and should be exercised to quash the

proceedings.

(i) where it manifestly appears that there is a
legal bar against the institution or

continuance e.g. want of sanction;

(ii) where the allegations in the first
information report or complaint taken at its
face value and accepted in their entirety do
not constitute the offence alleged;

(iii)where the allegations constitute an offence,
but there is no legal evidence adduced or the

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71

evidence adduced clearly or manifestly fails to
prove the charge.

11. As noted above, the powers possessed by

.

the High Court under Section 482 of the Code

are very wide and the very plenitude of the
power requires great caution in its exercise.

Court must be careful to see that its decision
in exercise of this power is based on sound
principles. The inherent power should not be

exercised to stifle a legitimate prosecution.
High Court being the highest Court of a State
should normally refrain from giving a prima

facie decision in a case where the entire facts

are incomplete and hazy, more so when the
evidence has not been collected and produced
before the Court and the issues involved,

whether factual or legal, are of magnitude and
cannot be seen in their true perspective

without sufficient material. Of course, no hard
and fast rule can be laid down in regard to

cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the

proceeding at any stage. (See : The Janata Dal
etc. v. H.S. Chowdhary and others, etc. (AIR
1993 SC 892), Dr. Raghubir Saran v. State of
Bihar and another (AIR 1964 SC 1)). It would
not be proper for the High Court to analyze the
case of the complainant in the light of all
probabilities in order to determine whether a
conviction would be sustainable and on such

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72

premises, arrive at a conclusion that the
proceedings are to be quashed. It would be
erroneous to assess the material before it and
conclude that the complaint cannot be

.

proceeded with. In proceeding instituted on

complaint, exercise of the inherent powers to
quash the proceedings is called for only in a

case where the complaint does not disclose any
offence or is frivolous, vexatious or oppressive.
If the allegations set out in the complaint do

not constitute the offence of which cognizance
has been taken by the Magistrate, it is open to
the High Court to quash the same in exercise

of the inherent powers under Section 482 of

the Code. It is not, however, necessary that
there should be meticulous analysis of the case
before the trial to find out whether the case

would end in conviction or acquittal. The
complaint has to be read as a whole. If it

appears that on consideration of the

allegations in the light of the statement made
on oath of the complainant that the

ingredients of the offence or offences are
disclosed and there is no material to show that
the complaint is mala fide, frivolous or
vexatious, in that event there would be no
justification for interference by the High
Court. When an information is lodged at the
police station and an offence is registered,
then the mala fides of the informant would be
of secondary importance. It is the material

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73

collected during the investigation and
evidence led in Court which decides the fate of
the accused person. The allegations of mala
fides against the informant are of no

.

consequence and cannot by itself be the basis

for quashing the proceeding. (See:
Dhanalakshmi v. R. Prasanna Kumar and

others , State of Bihar and another v. P. P.
Sharma, Rupan Deol Bajaj and another v.
Kanwar Pal Singh Gill and another, State of

Kerala and others v. O.C. Kuttan and others,
State of U.P. v. O. P. Sharma , Rashmi Kumar
v. Mahesh Kumar Bhada, Satvinder Kaur v.

State (Govt. of NCT of Delhi) and

another, Rajesh Bajaj v. State NCT of Delhi
and others.

12. These aspects were also highlighted
in State of Karnataka v. M. Devendrappa and

another(2002 (3) SCC 89).

13. It is to be noted that the investigation
was not complete and at that stage it was

impermissible for the High Court to look into
materials, the acceptability of which is
essentially a matter for trial. While exercising
jurisdiction under Section 482 of the Code, it is
not permissible for the Court to act as if it was
a trial Judge. Even when charge is framed at
that stage, the Court has to only prima facie be
satisfied about existence of sufficient ground
for proceeding against the accused. For that

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74

limited purpose, the Court can evaluate
material and documents on records but it
cannot appreciate evidence. The Court is not
required to appreciate evidence to conclude

.

whether the materials produced are sufficient

or not for convicting the accused. In Chand
Dhawan (Smt.) v. Jawahar Lal and Ors. (1992

(3) SCC 317), it was observed that when the
materials relied upon by a party are required
to be proved, no inference can be drawn on the

basis of those materials to conclude the
complaint to be unacceptable. The Court
should not act on annexures to the petitions

under Section 482 of the Code, which cannot

be termed as evidence without being tested
and proved. When the factual position of the
case at hand is considered in the light of

principles of law highlighted, the inevitable
conclusion is that the High Court was not

justified in quashing the investigation and

proceedings in the connected case (Crime No.
116/94) registered by the Special Police

Establishment, Lokayukta, Gwalior. We set
aside the impugned judgment. The State shall
be at liberty to proceed in the matter further.”

50. The law thus is clear that when the matter is

listed before the learned trial Court for faming of the

charge(s), the powers under Section 482 Cr.PC should not be

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75

generally exercised, except in an exceptional case. As the

present is not an exceptional case, this Court finds that the

above cited law is fully applicable in the facts of the present

.

case. In Hiralal Ors. versus State of U.P. Ors., AIR

2009 Supreme Court 2380, it has been held:

“15. The second complaint petition filed by
the third respondent does not disclose any

such exceptional case. It reiterated the same
allegations as were made in the first complaint
petition. No fresh fact was brought to the

notice of the court. The core contention raised

in both the complaint petitions was alleged
execution of a forged Will by Tika Ram Tyagi.

16. For the reasons aforementioned, we are of
the opinion that it was not a fit case where

cognizance of the offence could have been
taken or any summons could have been issued.

The impugned judgment, thus, cannot be
upheld. It is set aside accordingly. The appeal

is, therefore, allowed.”

51. However, the facts of present case are different

from the case cited, as in the cited case law, it was second

complaint on same cause of action. In Amit Kapoor versus

Ramesh Chander and another, (2012) 9 Supreme Court

Cases 460, it has been held:

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76

“The principles to be considered for
proper exercise of jurisdiction, particularly
with regard to quashing of a charge either
in exercise of jurisdiction under Section

.

397 or Section 482 Cr.PC or together, as the
case may be, can be summarized as follows:

“…………..

**** *** ****

**** *** ****

13. In exercise of its jurisdiction under
Section 228 and/or under Section 482, the

Court cannot take into consideration external

materials given by an accused for reaching the
conclusion that no offence was disclosed or

that there was possibility of his acquittal. The
Court has to consider the record and
documents annexed with by the prosecution.

14. Quashing of a charge is an exception to

the rule of continuous prosecution. Where the
offence is even broadly satisfied, the Court

should be more inclined to permit
continuation of prosecution rather than its
quashing at that initial stage. The Court is not
expected to marshal the records with a view to
decide admissibility and reliability of the
documents or records but is an opinion formed
prima facie.”

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77

52. It is clear that in Umesh Kumar versus State

of Andhra Pradesh and another, (2013) SCC, 591,

reproduced hereinabove in para 27 above, it is not applicable

.

to the facts of the present case, as discussed hereinabove,

the petitioners were having intention and knowledge with

respect to the danger likely to cause death by allowing the

victims to go to the river bed. So, the judgment is not

applicable in the present case.

53. Considering the material, which has come on

record, alongwith the law, as discussed hereinabove, there

was meeting of mind between the Faculty members to the

effect that they were knowing that their act in not stopping

the students from going to the river bed, they will die in all

probabilities, in case water comes, which generally happens

in the rivers in the hills. Also it is the Faculty members, who

were knowing that these students are not aware about the

facts how to judge whether the water is likely to come in the

river, which is generally sensed by the blow of cold wind etc.

from the upper side of the rivers, but these students were

innocent that they could not make out the danger even when

the local people started blowing the whistles and dragging

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78

the students to safety. The Faculty members knowing fully

well about the consequences about the students going into

the river bed, and students were not aware about the nature

.

of perennial rivers coming from the glaciers and their

nature and likely release of water from the Dams from time

to time which the Faculty members were knowing,(as it has

come in the statements of the Faculty members that they

had earlier come to Manali also and knows about Manali)

makes out a case against the Faculty members under

Sections 336, 304-A read with Section 34 of the Indian

Penal Code. Further, the parents could not have allowed

the petitioners to take their children to Manali, but as it was

an industrial tour, it is not understandable as to why these

students were taken to Manali whereas there is no Industry

at Manali, which clearly shows that it is the negligence on

the part of the Faculty members and it is so grave that life

of 25 victims lost and so the petitioners committed an

offence punishable under Sections 336 and 304-A read with

Section 34 of the Indian Penal Code. Further this Court

finds that Faculty members were knowing that by their act

in not stopping the students from going to the river bed,

08/12/2017 23:02:36 :::HCHP
79

they are likely to die in all probabilities, having this

knowledge, they not only failed to stop the victims, but

facilitated them to go to the river bed. Otherwise also, from

.

the record, it is clear that the Faculty members were

supposed to take care of the students, as they were in the

care and custody of the Faculty members/petitioners and the

College. Petitioners were supposed to make journey of

victims safe and take them safe back to Hyderabad to their

parents. It is worthwhile to mention here that the victims

were in the age group of 19 and 22 years and they were in

the care and custody of College authorities. Inspite of

taking care of them, the petitioners facilitated them to go to

the river bed knowing fully well about the risk involved

there, which is clear from the fact that one of the Faculty

members, who was having her own child with her during the

tour had not taken her child to the river bed. Further, when

the Faculty members fled from the river bed on sensing the

coming danger, they were supposed to take the students and

the victims with them, but they only fled themselves leaving

victims, who were not knowing anything with regard to the

nature of the river and the danger prevailing at the spot

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80

being in their threshold of life un-experienced and in the

care and custody of the Faculty members. In these

circumstances also, there cannot be any other conclusion,

.

but that the proceedings started against the petitioners is on

the basis of the facts, which have come on record and are not

required to be interfered with.

54. This Court concludes that no prudent person will

enter himself or permit someone else to go into the river bed

in the hilly areas and when the petitioner had permitted

and facilitated the victims (who lost their lives) after

entering river bed, this act of petitioners was with the clear

and instant risk of harm/danger to life and personal safety

of the victims. As the petitioners were knowing the danger

thus, their common intention with respect to their negligent

act is abundantly clear.

55. In view of the discussion made hereinabove and

after taking into consideration all the material on record,

this Court finds that the petitioners have no case in their

favour. Further, the present is not an exceptional case. For

the reasons as given hereinabove, there is no merit in this

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81

petition. The same deserves dismissal and is accordingly

dismissed.

56. The observation of this Court, made hereinabove are

.

only made for the disposal of the present petition and will

not have any bearing on the merits of the trial/case. Pending

application(s), if any, stands disposed of accordingly.

57. The parties are directed to appear before the

learned trial Court on 04.01.2018.

r (Chander Bhusan Barowalia)

December 05,2017 Judge
(M.gandhi)

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