Manish Emanwal vs State Of Madhya Pradesh And Another

This petition, under section 482 of the Code of Criminal Procedure, has been filed seeking quashment of the FIR registered at Crime No.0211/2016 at Police Station Civil Line, Morena for the offences punishable under section 304 of the IPC and all consequential proceedings thereto.

Facts, in nutshell, are that petitioner is a School Bus Operator, operating a bus for carrying students of St. Merry School, Pipripura, A.B. Road, Morena. On 9/4/2016, at about 11 AM, when Bus No. MP-07-P0139 was carrying students from School to their homes, a gate of the bus remained open. When the Bus reached near new Collectorate building, one of the students namely Lovely, aged about 6 years, fell down from the Bus and came under its rear wheel, due to which she died. The Bus was being driven rashly and negligently by the driver. After the accident, the Bus driver and conductor fled from the spot.

The FIR, as indicated above, was registered at Crime No. 0211/2016 on 9/4/16 and offence under section 304 of the IPC was registered against the driver Mahendra Prasad and Cleaner Lokendra Singh. However, at the time of filing charge-sheet offences under sections 66 and 192 of the Motor Vehicles Act (for short "the Act"), were also added and the petitioner was arrested and produced before the Court. Subsequently, vide order dated 28/12/17, the trial Court framed the charges under sections 304 (II) of the IPC and 66/192 of the Act.

Learned counsel for the petitioner contends that petitioner could not have been charged with the offences punishable under sections 304 of the IPC and 66/192 of the Act, for the simple reason that he is neither the driver nor cleaner of the Bus. He is the owner of the Bus and was not present in the Bus at the time of accident. The charge has been framed by the trial Court against the petitioner for alleged violation of guidelines issued by the Apex Court for School Buses. In fact, there is no violation of any of the guidelines as the Bus was equipped with necessary and valid permit to carry school students, which could not have been issued by the competent Authority had there been violation of any statutory liability. However, for the sake of arguments, even if it is assumed that there was non adherence of the guidelines to certain extent, then too, it cannot be deduced that petitioner had the knowledge that, in all probability, it would result in death of any student. Similarly, the provisions of sections 66 and 192 of the Act are not attracted to the fact situation in hand because the offending vehicle was having valid registration certificate and valid permit. As such, prosecution of the petition under the aforesaid sections is nothing but an abuse of the process of law which needs to be interfered with in the light of dictum of the Apex Court in the case of State of Harayana Vs. Bhajanlal (AIR 1992 SC 604). With the aforesaid submissions, it is contended that the impugned proceedings may be quashed.

On the other hand, learned Public Prosecutor has supported the order framing charge passed by the learned trial Court and contended that no case is made out for interfering therewith as for violation of guidelines issued by the Apex Court, the petitioner can be saddled with the knowledge necessary to constitute the offence under section 304 of the IPC. It is further submitted that since charges have been framed and trial has begun, this petition cannot be entertained and deserves to be dismissed at the threshold.

Heard, learned counsel for the parties.

Before adjudicating upon the merits of the case, it would be apposite to address upon the objection raised by learned Public Prosecutor with regard to maintainability of this petition at this stage of trial when charges have been framed and few witnesses have been examined. In this regard, the Apex Court in the case of Satish Mehra Vs.State (NCT of Delhi) ((2012)3 SCC 614) has held as under:-

"13. Though a criminal complaint lodged before the court under the provisions of Chapter XV of the Code of Criminal Procedure or an FIR lodged in the police station under Chapter XII of the Code has to be brought to its logical conclusion in accordance with the procedure prescribed, power has been conferred under Section 482 of the Code to interdict such a proceeding in the event the institution/continuance of the criminal proceeding amounts to an abuse of the process of court. An early discussion of the law in this regard can be found in the decision of this Court in R.P. Kapur v. State of Punjab wherein the parameters of exercise of the inherent power vested by Section 561-A of the repealed Code of Criminal Procedure, 1898 (corresponding to Section 482 CrPC, 1973) had been laid down in the following terms: (AIR p. 869, para 6)

(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;

(ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding e.g. want of sanction;

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

(iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.

The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose a triable offence, there can be reason as to why the accused should be made to suffer the agony of a legal proceeding that more often than not gets protracted. A prosecution which is bound to become lame or a sham ought to interdicted in the interest of justice as continuance thereof will amount to an abuse of the process of the law. This is the core basis on which the power to interfere with a pending criminal proceeding has been recognized to be inherent in every High Court. The power, though available, being extra ordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfy the narrow test indicated above, namely, that even accepting all the allegations levelled by the prosecution, no offence is disclosed. However, if so warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of the charge against the accused. In fact the power to quash a proceeding after framing of charge would appear to be somewhat wider as, at that stage, the materials revealed by the investigation carried out usually comes on record and such materials can be looked into, not for the purpose of determining the guilt or innocence of the accused but for the purpose of drawing satisfaction that such materials, even if accepted in its entirety, do not, in any manner, disclose the commission of the offence alleged against the accused.

The above nature and extent of the power finds an exhaustive enumeration in a judgment of this Court in State of Karnataka v. L. Muniswamy (1977) 2 SCC 699 which may be usefully extracted below :SCC pp. 702-03)

"7. The second limb of Mr Mookerjee's argument is that in any event the High Court could not take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any charges could be legitimately framed against the respondents. So long as there is some material on the record to connect the accused with the crime, says the learned counsel, the case must go on and the High Court has no jurisdiction to put a precipitate or premature end to the proceedings on the belief that the prosecution is not likely to succeed. This, in our opinion, is too broad a proposition to accept. Section 227 of the Code of Criminal Procedure, 2 of 1974, provides that:

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This section is contained in Chapter XVIII called "Trial Before a Court of Session". It is clear from the provision that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion, for reasons to be recorded, that there is not sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record his reasons is to enable the superior court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. Section 482 of the New Code, which corresponds to Section 561-A of the Code of 1898, provides that:

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In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."

It would also be worthwhile to recapitulate an earlier decision of this court in Century Spinning & Manufacturing Co. vs. State of Maharashtra (1972) 3 SCC 282 noticed in L. Muniswamy's case (Supra) holding that: (SCC p. 704, para 10)

"10 .... the order framing a charge affects a person's liberty substantially and therefore it is the duty of the court to consider judicially whether the materials warrant the framing of the charge. It was also held that the court ought not to blindly accept the decision of the prosecution that the accused be asked to face a trial."

In the case of Ravikant Dubey and Others Vs. State of M.P. and another reported in 2014 Cr.L.R. (M.P.) 162 has held as under :

"8. In view of the above, the questions of law which requires consideration are as follows:

(i) Whether petition preferred by the petitioners under Section 482 of the Code for quashing the FIR can be entertained, when trial has been started and evidence of some witnesses have also been deposed before the Trial Court ?

(ii) Whether evidence recorded by Trial Court during trial can be considered for quashing the FIR ?

(iii) Whether any ground is available for quashing the FIR in view of the facts and laws available on record ?

Learned Senior Counsel for the petitioners submitted that inherent powers can be used at any stage to prevent abuse of process of any Court or otherwise to secure the ends of justice. It makes no different whether trial has been started or not and whether some evidence has been deposed before the Trial Court or not. In support of his contention he placed reliance in the case of Sathish Mehra (supra) and Joseph Salvaraja Vs. State of Gujrat and others, (2011) 7 SCC 59.

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Therefore, in the considered view of this Court this petition is maintainable also even when trial is at advance stage. The question is answered accordingly."

(Emphasis supplied)

Thus, it is held that during the pendency of the petition under Section 482 of Cr.P.C., if the charges have been framed and even if some of the witnesses have been examined, the petition can be decided on merits.

Now adverting to the merits of the case, admittedly, petitioner is neither the driver nor the cleaner of the offending vehicle. He is the owner of the bus and was not present in the bus at the time of accident. As such, he was not involved in managing or conducting the affairs inside the bus that led to the unfortunate accident. A bare perusal of the order framing charge reveals that the petitioner has been charged with the offence under section 304(II) of the IPC for alleged violation of guidelines issued by the Apex Court, which read thus:-

"School Bus" must be written on the back and front of the Bus.

If it is a hired bus, "On School Duty" should be clearly indicated

Bus must have a First-Aid-Box.

The windows of Bus must be fitted with horizontal grills.

There must be a Fire Extinguisher in the Bus.

School Name and Telephone No. must be written on the Bus.

The doors of the Bus should be fitted with reliable locks.

To keep School Bags safely, there should be a space-fitted under the seats.

There must be an Attendant from the School in the Bus. School cabs should be fit with speed governors with maximum speed limit of 40 kph.

The body of school cab shall be highway yellow colour with a horizontal strip in green colour of 150mm width in the middle all around the vehicle and the words 'SCHOOL CAB' must be prominently displayed on all four sides of the vehicle.

If age of school children is below 12 years, the number of children carried shall not exceed 1½ times the permitted seating capacity. Children above 12 years shall be treated as one person.

The driver of a school cab must have valid licence to drive LMV-Transport Vehicles for a period of at least four years and compulsorily wear a light blue shirt, light blue trousers and black shoes. His name ID be displayed on the shirt.

There must be enough space provided to keep school bags inside the vehicle and the bags should not be hung outside the vehicle or placed on roof carriers

The bus driver must carry a complete list of the children being ferried in the school cab, indicating the name, class, residential address, blood group and the points of stoppage, route plan, etc.

In case of kindergarten, if an authorized person recognised mutually by the school and parents, does not come to pick the child from the halting points and such, the child shall be taken back to the school and their parents should be called

The above guidelines have been issued by the Apex Court in respect of School Buses for safe transportation of children. However, to constitute an offence under section 304 of the IPC, commission of culpable homicide not amounting to murder is necessary. The term "culpable homicide" has been defined in section 299 of the IPC, to mean thus:-

Culpable homicide.-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Thereafter, under section 300, IPC, "culpable homicide" becomes murder, and, if it falls within any of the five exceptions appended thereto it becomes "culpable homicide not amounting to murder", punishment whereof is provided under section 304 of the IPC. Thus, to constitute an offence under section 304 of the IPC, first it has to be seen whether the offending act comes within the purview of section 299,IPC i.e. "culpable homicide" or not. From the definition infra, it can easily be culled out that offence of culpable homicide is made out if death is caused due to an act done with an intention of causing death, or with the intention of inflicting such bodily injury that is likely to cause death, or the act is done with the knowledge that it is likely to cause death.

Thus, the sole question that arises for consideration in this case is whether there was any violation of the abovesaid guidelines and if yes, was it substantial enough to saddle the petitioner with the knowledge necessary to constitute the offence of culpable homicide as defined under section 299 of the IPC.

To answer the above, it would be worthwhile to recapitulate the occurrence. As per prosecution version, on 9/4/2016, at about 11 AM, when Bus No.MP-07-P0139 was carrying students from School to their respective homes, a gate of the bus remained open. When the Bus reached near new Collectorate building, one of the students namely Lovely, aged about 6 years, fell down and came under its rear wheel, which led to her death. It cannot be lost sight of that petitioner being owner of the Bus was not present in the bus at the relevant point of time. Of all the guidelines of the Apex Court as enlisted above, the one which may be relevant to the incident is guideline no.7 which says that the doors of the Bus should be fitted with reliable locks. Now, it is not the case of the prosecution that the doors were not having locks. The sole allegation is that the gates were not closed. It is noteworthy that during the relevant period, the bus held a valid permit and necessary fitness certificate. A perusal of the fitness certificate reveals that it was valid during the period 29/3/2016 to 28/3/2017, well covering the date of incident i.e. 9/4/2016. The rest of the guidelines of the Apex Court when considered in juxtaposition with the manner in which incident occurred, do not appear to be germane for constituting the offence under section 299 of the IPC. Consequently, in the opinion of this Court, the charge framed against the present petitioner for the offence under section 304 of the IPC is not made out.

Adverting to the charges framed under sections 66 and 192 of the Act, it can be seen that section 66 of the Act deals with necessity for permits and primarily provides that no owner of a motor vehicle shall use or permit the use of the vehicle, as a transport vehicle, in any public place whether or not such vehicle is actually carrying any passengers or goods, save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used. Similarly section 192 provides for penal consequences for driving a motor vehicle without registration. In the case in hand, the offending vehicle was having a valid permit, a perusal whereof reveals that it was granted to St. Merry School with petitioner as owner of the vehicle. The incident occurred while carrying the students of St. Merry School. So prima facie it cannot be said that the Bus was being used for any purpose other than the one for which the permit was granted. Similarly, the petitioner holds a valid registration certificate for the vehicle issued by Morena RTO showing the date of registration as 02/03/1996. As such, the offences under sections 66 and 192 are also prima facie not attracted to the fact situation in hand.

In view of the foregoing conspectus of the matter, the case of the petitioner clearly falls within the ambit of exception (1) as set out by the Apex Court in the case of Bhajanalal (Supra) and continuation of prosecution of petitioner would be nothing but an abuse of process of Court, calling for exercise of inherent powers under section 482 of the Code. Resultantly, the FIR registered at Crime No. 0211/2016 registered at P.S. Civil Lines, Morena and all consequential proceedings, so far as they relate to petitioner, are hereby quashed. However, it is made clear that in respect of other accused persons, the trial shall continue.

The petition, accordingly, stands allowed.