K. Balakrishnan vs State and K. Inbaraj

S. Tamilvanan, J.—This Criminal Revision has been preferred against the order, dated 30.07.2010 made in Cr.M.P. No. 4107 of 2007 in S.C. No. 275 of 2006 on the file of the Principal Sessions Judge, Thanjavur.

It is seen that the aforesaid criminal miscellaneous petition was filed by the Petitioner/A10, u/s 227 of the Code of Criminal Procedure, seeking discharge.

The Petitioner/A10 was working as Additional Assistant Elementary Educational Officer, Kumbakonam between 12.01.1999 and 30.06.2003 and as such he was the inspecting authority of the school, where the unfortunate occurrence had taken place. As per the prosecution case, the Petitioner along with the other accused have committed the offences punishable u/s 120 (B) r/w 304, 338, 285, 167, 197, 465, 467, 468 and 471 Indian Penal Code, 1860 and Rule 15 (1) (2) r/w 165 of Tamil Nadu Public Buildings (Licensing) Act, 1965 and Section 5 r/w 47 of Tamil Nadu Recognised Private Schools (Regulation) Act and Section 23 of Juvenile Justice (care and protection of children) Act, 2000 and Municipalities Act r/w 108 (1), 109 Indian Penal Code, 1860.

Learned Counsel appearing for the Petitioner submitted that there are No. grounds to frame any charge against the Petitioner and that he is entitled to get discharge. Hence, he filed the criminal miscellaneous petition, seeking discharge before the Court below. Though the Sessions Court is vested with the power u/s 228 (1) Code of Criminal Procedure, the petition was dismissed. Aggrieved by which, the Petitioner has preferred the criminal revision.

As per the order, dated 15.09.2010 made in M.P.(MD). No. 3 of 2010, the second Respondent was impleaded as a necessary party in the criminal revision.

Mr. T.K.Gopalan, learned Counsel appearing for the Petitioner submitted that as per the complaint given, statement of the prosecution witnesses recorded u/s 161 (3) Code of Criminal Procedure and also the charge sheet, nothing would attract any ingredients for the alleged offence against the Petitioner. As per the prosecution case, the occurrence had taken place on 16.07.2004. On the said date, the Petitioner/A10 was transferred from Kumbakonam to Watrap, Viruthunagar District as Additional Assistant Elementary Educational Officer, hence he could not have been arrayed as one of the accused in the case relating to the fire accident, which took place in the premises of Sri Krishna Aided Primary School at Kumbakonam.

Learned Counsel appearing for the Petitioner further submitted that as per the prosecution case, the occurrence took place due to the negligent act of A4, Vijayalakshmi, Noon Meal Organiser, A5, Vasanthi, Cook at the Noon-meal centre on the said date and the materials supplied on side of the the prosecution would prove the fact that the revision Petitioner/A10 is an innocent person and that there is No. ''actus reus'' and ''mens rea'', however, the learned Sessions Judge, considering the sentiments and emotions, erroneously dismissed the petition filed by the Petitioner u/s 227 Code of Criminal Procedure The scale applied to A6, A11 and A24 by the prosecution to withdraw the case against them ought to have been considered and applied in favour of the Petitioner. According to the learned Counsel, A6, A11 and A24 are similarly place persons, sailing in the same boat in the case and therefore, the Court below could have allowed the petition and discharged the Petitioner from the charges. With the above pleadings, the learned Counsel pleaded for allowing the criminal revision and discharge of the Petitioner/A10 from the charges. In support of his contention, the learned Counsel relied on the following decisions:

Chitresh Kumar Chopra v. State (NCT of Delhi) 2010 (3) SCC (Cri) 367

State of Orissa v. Debebdra Nath Padhi 2005 SCC (Cri) 415

Mr. L.Murugan, learned Government Advocate appearing for the first Respondent and Mr. M.Subash Babu, learned Counsel appearing for the second Respondent submitted that the criminal revision petition is not legally sustainable. According to the learned Counsel appearing for the Respondents, in the unfortunate occurrence, 94 children were burn to death and 18 children were seriously injured due to the negligence of the school administration and the authorities, including the Petitioner/A10 and the second Respondent is an affected person, having lost two of his children in the tragic occurrence and submitted that the occurrence had taken place due to the careless attitude of the inspecting authorities and the school administration and therefore, the Petitioner cannot plead total innocence at this stage.

Learned Counsel appearing for the Respondents submitted that the Petitioner cannot be compared with A6, A11 and A24, since they were released from the charges by the prosecution and that was upheld by this Court. The SLP preferred by the second Respondent herein was also dismissed, by Order, dated 12.11.2010 by the Hon''ble Supreme Court.

In the counter filed by the first Respondent, it has been averred that the renewal of approval for Sri Krishna Aided Primary School, once in three years was not necessary, since it had obtained permanent recognition from the authorities, however, structural suitability certificate and sanitation certificate were needed from Chartered Engineer and Municipal Health Officer respectively and to be filed for the recognition of the school and its continuation.

It had been the duty of the Petitioner/A10, during his regular visit to Sri Krishna Aided Primary School to peruse then and there and enter the facts in the visiting note. However, the Petitioner/A10, who has served as Additional Assistant Elementary Educational Officer, Kumbakonam between 12.09.1999 and 30.06.2003 had never noted any facts during his visit and not obtained suitability certificate from the Chartered Engineer and sanitation certificate from the Municipal Health Officer. Had the Petitioner/A10 been acted accordingly, the recognition of Sri Krishnan Aided Primary School would have been canceled, thereby the cruel death of 94 innocent kids in the school premises would have been prevented.

The first Respondent in his counter, has further stated that the Petitioner was totally neglected to inspect and review the functioning of Sri Krishna Aided Primary School, Kumbakonam from 12.09.1999 to 30.06.2003 and further stated that the Petitioner had submitted false records to A1, Pulavar Palanisamy to obtain renewal of license, thereby failed to take proper action against A1 and had conspired with him. Learned Counsel appearing for the first Respondent submitted that the case against A6, A11 and A24 is totally different from the case of the Petitioner/A10. According to him, the accused Sivaprakasam (A15), Thandavan (A16) and G.Durairaj (A17) joined along with the Petitioner/A10 and committed conspiracy with A1, A2 and A3, which resulted in the offence.

As per Section 227 of the Code of Criminal Procedure, Sessions Court is empowered with the power of discharge, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf and if the Judge considered that there is No. sufficient ground for proceeding against the accused, he shall discharge the accused and record his reason for so doing.

It is clear that it is a judicial discretion of the Sessions Judge. Considering the materials available on record against the Petitioner, if No. offence is made out, based on the materials produced by the prosecution, the accused would be entitled to be discharged. In the instant case, the Petitioner/accused is facing charges u/s 120 (B) r/w 304, 338, 285, 167, 197, 465, 467, 468 and 471 Indian Penal Code, 1860 and Rule 15 (1)(2) r/w 165 of Tamil Nadu Public Buildings (Licensing) Act, 1965 and Section 5 r/w 47 of Tamil Nadu Recognised Private Schools (Regulation) Act and Section 23 of Juvenile Justice (care and protection of children) Act, 2000 and Municipalities Act r/w 108 (1), 109 Indian Penal Code, 1860.

From the counter filed by the first Respondent and the materials available on record, it is quite clear that neither the Court below nor this Court can decide that the Petitioner is totally an innocent person at this stage. As contended by the learned Counsel appearing for the Respondents, the case against A6, A11 and A24 are entirely different and that was confirmed by this Court and the SLP was also dismissed by the Hon''ble Apex Court. So far as this petition is concerned, as there is prima facie case made out and also materials available on record, the Court below cannot take it so lightly for allowing the petition filed u/s 227 of the Code of Criminal Procedure.

The Hon''ble Supreme Court in Chitresh Kumar Chopra v. State (NCT of Delhi), reported in 2010 (3) SCC 367, held that at the stage of framing of charge, Court is required to evaluate materials and documents on record to find out if facts emerging therefrom, taken at their face value, disclose existence of

all ingredients constituting the alleged offence.

In State of Maharashtra, Etc. Etc. Vs. Som Nath Thapa, Etc. Etc., , the Hon''ble Supreme Court has held as follows:

...if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.

In Chitresh Kumar Chopra v. State (NCT of Delhi), reported in 2010 (3) SCC 367, the Hon''ble Apex Court has held as follows:

...we are convinced that the trial court was correct in law in coming to the conclusion that a case for framing charge against the Appellant had been made out. Similarly, the scope of revisional powers of the High Court u/s 401 of the Code being limited, the High Court was justified in dismissing the revision petition, preferred by the Appellant.

In P.Vijayan v. State of Kerala, reported in 2010 (4) MLJ 220 (SC), the Hon''ble Supreme Court has held that at the stage of deciding a petition u/s 227 of the Code of Criminal Procedure, a Judge has merely to sift the evidence in order to find out whether there is sufficient ground for proceeding against the accused.

In Union of India (UOI) Vs. Prafulla Kumar Samal and Another, , the Hon''ble Supreme Court enunciated the following principles, while interpreting the scope of Section 227 Code of Criminal Procedure:

12 (1) That the Judge while considering the question of framing the charges u/s 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction u/s 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basis infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

It is a settled proposition of law that while deciding a petition filed u/s 227 Code of Criminal Procedure, the Judge should not make a roving enquiry into the pros and cons of the matter and weigh the evidence, as if, deciding the matter after trial.

In P.Vijayan v. State of Kerala, reported in 2010 (4) MLJ 220 (SC), the Hon''ble Supreme Court has held as follows:

...After evaluating the materials produced by the prosecution and after considering the probability of the case, the Judge being satisfied by the existence of sufficient grounds against the Appellant and another accused framed a charge. Whether the materials at the hands of the prosecution are sufficient or not are matters for trial. At this stage, it cannot be claimed that there is No. sufficient ground for proceeding against the Appellant and discharge is the only remedy. Further, whether the trial will end in conviction or acquittal is also immaterial. All these relevant aspects have been carefully considered by the High Court and it rightly affirmed the order passed by the Trial Judge dismissing the discharge petition filed by A3-Appellant herein. We fully agree with the said conclusion.

The Full Bench of the Supreme Court in State of Orissa v. Debendra Nath Padhi, reported in 2005 SCC (Cri) 415 has held as follows:

We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207A omitted have already been noticed. Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth...

It has been made clear that at the stage of framing of charges, hearing of the submissions of the accused has to be confined to the material produced by the police or the prosecution and No. provision in the Code of Criminal Procedure grant to the accused any right to file any material or document at the stage of framing charges. Similarly, there is No. question of providing benefit of doubt to the accused at the time of framing charges. When there is prima facie case made out, based on the materials produced by the prosecution, it is the duty of the Court to frame charges, based on the materials, after hearing the defence raised by the accused with regard to the materials produced by the prosecution.

In the instant case of the tragic occurrence, 94 children were burn to death and number of children sustained permanent disability. As per the prosecution case, the same had occurred due to the gross negligence and the illegal functioning of the school management and the authorities. At this stage, neither the Sessions Court nor this Court can hold that there is No. prima facie case made out against the Petitioner/A10, based on the materials. Whether the alleged guilt against the Petitioner/A10 is proved beyond reasonable doubt or not could be decided, based on the evidence after the trial of the case and therefore, this Court is of the view that the criminal revision petition is liable to be dismissed at this stage, as there are prima facie materials available as against the Petitioner and the other accused.

Learned Counsel appearing for the Petitioner submitted that the Petitioner is aged about 64 years at the time of filing of the revision and he has to face mental agony and other problems in attending the Court at Thanjavur. Considering the age of the Petitioner, it is open to the Petitioner to file appropriate petition to dispense with his personal appearance before the Court below, by filing undertaking affidavit to appear before the Court below as and when required by the Court below. However, the aforesaid reason would not be sufficient to allow the criminal revision petition and discharge the accused, at this stage.

In the result, this Criminal Revision Petition is dismissed. Consequently, connected miscellaneous petitions are also dismissed. It is made clear that if the Petitioner is so advised, he can file a petition before the Court below to dispense with his personal appearance, along with an undertaking affidavit that he will appear as and when required by the Court below. It is made clear that the Petitioner is entitled to raise all his defence that are available, according to law, before the Court below. If any such petition is filed, that may be ordered by the Court below, according to law.