Manojranjan Nayak vs State Of Odisha

D. DASH, J

1.The petitioner by filing this revision under section 397 read with section 401 of the Code of Criminal Procedure, 1973 has prayed for examination of

the legality and propriety of an order dated 21.03.2018 passed by the learned Sub-Divisional Judicial Magistrate, Bhubaneswar in C.T. No. 4604 of

2016 arising out of Khandagiri P.S. Case No. 518 of 2016 and to set aside the same.

The facts relevant for the purpose are the followings:-

On 17.10.2016 evening, there took place an unfortunate incident at the Intensive Care Unit (ICU) of Institute of Medical Science and SUM Hospital

located at Khandagiri area of the city of Bhubaneswar, when all of a sudden fire broke out and spreaded causing loss of life of patients who were

then being treated therein as also loss and damage to the properties. The death toll is stated to have stood at twenty two at the end. The Officer who

was there at around 07.32 P.M. in the Fire Control Room, Bhubaneswar received a message about the outbreak of fire at the Hospital. The Officer-

in-Charge of Secretariat Fire Service was then directed to attend that emergency. Pursuant to the above, two Fire Fighting Units with a Sky Life of

Bhubaneswar Fire Station and three Firefighting Units of OFDRA, Baramunda, Bhubaneswar arriving at the spot started the firefighting and rescue

operation. The first floor of the Hospital building was found to have been engulfed with fire. The ICU and Dialysis wards having come under the

impact of fire and dense smoke having been filled, they deployed Fire Fighters, used breathing apparatus sets for evacuating the patients. Large

number of patients having been affected were evacuated by breaking the glasses of the window pans. Those patients rescued in the operation were

carried in available ambulances and admitted in other hospitals of the city. The Fire Fighting Operation continued for quite some time and around 10.00

P.M., the situation being brought under control, the fire fighting as also the rescue operation came to a halt.

The Fire Officer, Central Range, Bhubaneswar on 18.10.2016 around 4.00 P.M. lodged a report at Khandagiri Police Station leading to the registration

of Khandagiri P.S. Case No. 518 of 2016 for offence under sections 304/308/285/34 IPC.

The FIR finds mention of the features then noticed during the preliminary investigation at the level of the Fire Protection Personnels and the

inferences drawn therefrom. According to that, it is said that fire occurred in the store room situated in between the ICU and the Dialysis Ward for

electric short circuit. The Air Condition Duct lying there in the store room caught fire immediately due to the intensity of the flame and those being got

burnt, dense smoke got sucked into the Air-Conditioning System which then at a considerable velocity got spreaded to other areas like ICU, Dialysis

Ward and adjoining rooms through the Air Conditioning Vents.

The allegations have been made against the “Sum Hospital Authority†that fire audit of the hospital being conducted in the year 2013, some

shortcomings being noticed, though had been intimated to the Hospital Authority for compliance, those had not been complied with in order to ensure

safety of life and property before issue of fire safety certificate. The ‘Sum Hospital Authority’ were implicated as the accused persons and so

shown in the relevant coloumn in the F.I.R.

On completion of investigation, the Investigating Officer has submitted charge sheet placing the following persons for trial for commission of

offence under sections 304/308/285 IPC and under section 17 of the Orissa Fire Services Act:-

(i) Dr. Pushparaj Samantasinhar (Medical Supdt.),

(ii) Amlya Kumar Sahoo (Executive Engineer),

(iii) Malay Kumar Sahoo (Junior Engineer- Electrical)

(iv) Sankesh Kumar Das (Fire Safety Officer)

(v) Manoj Ranjan Nayak (President, SOA University)

Upon receipt of the same, learned Magistrate on 21.03.2018 has passed the order which has been quoted in verbatim.

“Charge-sheet No. 103 dated 21.03.2018 under section 304/308/285 IPC and under section 17 of the Orissa Fire Services Act against the accused persons namely,

Dr. Pushparaj Samantasinhar, Amlya Kumar Sahoo, Malay Kumar Sahoo, Sankesh Kumar Das and Manoj Ranjan Nayak is received. Perused the F.I.R., CDs, 161

Cr.P.C. and other connected papers from the I.O. available on record, this Court is satisfied that prima facie of the offence under section 304/308/285 IPC and under

section 17 of the Orissa Fire Services Act is well made out. Hence, cognizance of offence under section 304/308/285 IPC and under section 17 of the Orissa Fire

Services Act is taken as per section 109(b) of the Cr.P.C. to proceed against accused person (s). The accused persons of court bail. Issued summons to the accused

person fixing on 25.06.2018 for appearance. The case record be handed over to dealing assistant for preparation of P.P. forthwith.â€​

The above order is assailed in this revision by the petitioner who has been issued with the process to face the proceeding for above offences.

Mr. A.K. Parija, learned Senior Counsel submitted that the petitioner and others arraigned as accused in the case had earlier moved this Court

carrying an application under section 482 Cr.P.C. which was numbered as CRLMC No. 224 of 2017, with a prayer to quash the FIR complaining that

the FIR allegation even being so taken though do not at all make out a case under section 304 and 328 IPC, yet the case has been registered for those

offences without any rhyme and reason only to harass. He submitted that this Court while disposing the same, on the basis of the allegations as laid

directed that the case be taken up for commission of offence under section 304-A IPC and investigation be made. While doing so, it was left open for

the Investigating Authority to proceed for any other offence even under those which had been indicated therein, in case sufficient material in support

of fulfillment of ingredients for those offences come to surface.

He next submitted that said order being not at all taken into consideration, the investigating authority has mechanically placed the charge-sheet for the

same offences under section 304/308/285/34 IPC read with section 17 of Orissa Fire Services Act when absolutely no material in support of those

offences has come to light which was the specific direction of this Court so as to proceed for those offences. He submitted that in view of the earlier

order and as per law, the investigation authority was obligated to so indicate as to the availability and collection of the materials for placing the charge

sheet for all those offences. So, it is said that without even minimum application of mind, the charge-sheet has been filed.

He further submitted that the learned Magistrate while passing the non-speaking order of taking cognizance of those offences has also done so; that

without any application of mind as is required for the purpose and in a mechanical and slipshod manner has passed the order taking cognizance of

offences particularly under sections 304/308 IPC. According to him, as it appears, the court below has also not kept in view the order of this court and

as if being not even aware of the same has passed the order.

His second limb of submission was that under any circumstance, the order of issuing the process particularly against the petitioner who is not attached

to the Hospital that too, in presence of other named and designated personnels, without any such material to so implicate him in the happening of the

incident either directly or indirectly is not sustainable and this petitioner with his admitted relationship, positioning and work arena in presence of

specific managerial personnel/employees entrusted with the job having the nexus and to look after the fire safety measures of the Medical College and

Hospital, being directed to appear in the case to face the proceeding is illegal and improper.

According to him, the role of the petitioner who is an academician, is not at all there in the management of the Medical College and Hospital and is

restricted to the policy making with reference to the academic affairs and not with regard to other affairs of the Hospital which is attached to the

Medical College as is required for the College which is a non-profit making hospital.

He further submitted that, this petitioner ought not to have been arraigned in the case by issuance of process even upon acceptance of the entire

prosecution allegations on their face value. He submitted that this petitioner is the President of the Trust which runs the Medical College and Hospital

as well as other Institutes under the umbrella of Trust, ‘Sikhya ‘O’ Anusandhan’, “deemed to be Universityâ€. He submitted that the

Medical Superintendent, Executive Engineer (Electrical), Junior Engineer (Electrical) and Fire Safety Officer with his assistants who are involved in

the day to day affair and management of the Medical College and Hospital in so far as their field of work is concerned; especially as to safety of life

of persons and properties etc and to the extent of maintenance of fire safety equipments in place have been arraigned as accused and the allegation

stands that despite the points raised during the fire audit in the year 2013 asking for their rectification and compliance, those have not been taken care

of and had those been followed, this fire tragedy either would not have taken place or could have been avoided or its magnitude would have been

lesser, and so it is alleged that the incident was also on account of negligence on the part of the “Hospital Authority†and inadequate maintenance

of the Fire Safety installments.

He submitted that this petitioner thus is in no way associated in the Hospital building’s work as also all such infrastructural activities including the

maintenance of the building, fittings, fixtures and all such machineries running through electrical connections or otherwise and electrical fittings etc and

the officials as well as other employees with specified jobs in that light have been entrusted with all such acts to be done and performed as their duty

and thus to say that this petitioner is liable for the offence which might have arisen for their non-performance of duty properly or for the negligence in

performing their duty is not correct and under no circumstance, this petitioner as the President of the Trust-SOA can be criminally made liable even by

applying the doctrine of vicarious liability. He submitted that here this petitioner is not the employer and it is the Trust which is ‘juridical person’

is the employer of those persons in-charge of the Hospital building entrusted with the performance of the job in taking care of everything including the

safety etc. to life and property and as in that status, it is said that the petitioner had once made the correspondence with the Authority in requesting

them to conduct Fire Audit way back on 18.07.2009, when admittedly as per the documents collected, all other correspondences since then have been

made by the officials and other employees associated with the said running of the Hospital, he has been arraigned as an accused. He thus submitted

that in so far as first letter, said to have been given by the petitioner requesting for a Fire Audit, the deficiencies pointed out then to him in the audit

report dated 30.07.2009 have been met and that has been stated in the correspondence dated 05.04.2013 made by the Fire Prevention Officer when

some more measures were suggested which are said to have not been complied with. It was submitted that after setting the request long back in the

year 2009, everything have been done by the concerned persons concerned with the work and in fact the deficiencies under that report have been

met. In the absence of any such material suggestive of the fact that such suggestions given in the year 2013 were brought to the knowledge of the

petitioner or that such non-response to the suggestions given in the year 2013 were under the command or order of this petitioner, he cannot be

attributed to have played any role in the matter of non-compliance, if any, and also cannot be held vicariously liable which may in the worst case arise

against the Trust-Employer which is not arraigned as an accused. His submission was that the Trust having not been made an accused, the

prosecution against the petitioner as its President cannot go on. He submitted that the FIR when shows the case to have been registered against

Hospital Authority, this petitioner being the President of the Trust and this Hospital being one of its units/organs, he is not liable to be proceeded

against for the criminal action as not even having any remote nexus with the negligence or omission if any, in connection with the incident. He thus

submitted that the learned Magistrate’s order issuing process against this petitioner to face the criminal proceeding merely because he has just

been shown as an accused in the relevant column in the charge sheet amounts to an illegality and the order to that effect suffers from the vice of non-

application of judicial mind and as such is liable to be set aside.

Mr. S.K. Nayak, learned Additional Standing Counsel submitted all in favour of the order under examination.

It was his submission that in view of the non-collection of any material during investigation and non availability of the same to show about the

compliance of all those deficiencies pointed out during that fire audit of the Hospital held last, the offence under section 304 and 308 of the IPC are

prima facie made out. He next submitted that the petitioner being the head of the Trust under whose control this Institution is running and under the

umbrella of which all the institutions stand guided; he cannot wriggle out of the criminal liability for the said incident. He submitted that even in the

absence of his direct involvement in the matter of infrastructural activities, their maintenance etc which have the concern with the safety of life as

well as the property of all concerned, the doctrine of vicarious liability being applicable, the petitioner’s prima facie liability for the offences comes

in.

According to him, the stage is too premature to appreciate the submissions advanced by the learned Senior Counsel for the petitioner and those would

only arise in the trial for consideration and decision. It was submitted that the Trust being the employer and the petitioner being its President

representing the Trust, for such actions of the employees leading to the commission of offence, he cannot escape from the liability on criminal side

when he is ordained by virtue of his position as such to oversee that all such aspects having the nexus with the safety and security of human life and

property and ensure that the deficiencies are properly met.

He submitted that though in the charge sheet, it has not been indicated as to on what materials such offence under section304 IPC and 308 IPC are

founded upon, that however in view of death of patients in the tragedy is of no significance further when the petitioner has all such scope to point out

those deficiencies during framing of charge or in the trial in the final round.

Before proceeding to address the submission of the learned Senior Counsel for the petitioner, it would be proper to take note of the scope of

jurisdiction under section 397 read with section 401 of the Cr.P.C.

In case of Amit Kapoor vs. Ramesh Chander and another; (2012) 9 SCC 460:-

“19. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and 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:

1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercise in invoking these

powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection

and that too in the rarest of rare cases.

2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the

offence or not. If the allegations are so patently absurd and inherently improbable that no prudent persons can ever reach such a conclusion and whether the basic ingredients of a

criminal offence are not satisfied then the Court may interfere.

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.

4) Where the exercise of such power is absolutely essential to prevent patent Miscarriage of justice and for correcting some grave error that might be committed by the subordinate

courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

5) where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal

proceedings, such a bare is intended to provide specific protection to an accused.

6) The court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

7) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

8) Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a ‘civil wrong’ with no

‘element of criminality’ and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would

not embark upon the critical analysis of the evidence.

9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material

on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as whole whether they will constitute an offence and, if so, is it an

abuse of the process of court leading to injustice.

10) It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of

acquittal or conviction.

11) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

12) 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.

13) 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.

14). Where the charge-sheet report under section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

15) Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the

charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. {Ref:- State of West Bengal and Ors. V.

Swapan Kumar Guha and Ors.:AIR 1982 SC 949; Madhavrao Jiwaji Rao Scindia and Anr. V. Sambhajirao Chandrojirao Angre and Ors.: AIR 1988 SC 709; Janata Dal v. H.S.

Chowdhary and Ors.: AIR 1993 SC 892; Mr. Rupan Deol Bajaj and Anr. V. Kanwar Pal Singh Gill and Ors.: AIR 1996 SC 309; G. Sagar Suri and Anr. V. State of U.P. and Ors.: AIR

2000 SC 754; Ajay Mitra v. State of M.P.: AIR 2003 SC 1069;M/s. Pepsi Foods Limited and Anr. V. Special Judicial Magistrate and Ors.: AIR 1988 SC 128; State of U.P. v. O.P.

Sharma: (1996) 7 SCC 705; Ganesh Narayan Hegde v. S. Bangarappa and Ors: (1995) 4 SCC 41; Zundu Pharmaceutical works Limited v. Mohd. Sharaful Haque and Ors.: AIR 2005

SC 9; M/s. Medchl Chemicals and Pharma (P) Limited v. Biological E. Limited and Ors.:AIR 2000 SC 1896 Shakson Belthissor v. State of Kerala and Anr. (2009) 14 SCC 466; V.V.S.

Rama Sharma and Ors. V. State of U.P. and Ors.: (2009) 7 SCC 234; Chunduru Siva Ram Krishna and Anr. V. Peddi Ravindra Babu and Anr.: (2009) 11 SCC 203; Sheo Nandan

Paswan v. State of Bihar and Ors.: AIR 1987 SC 877; State of Bihar and Anr. V. P.P. Sharma and Anr.: AIR 1991 SC 1260; Lalmuni Devi (Smt.) v. State of Bihar and Ors.: (2001) 2

SCC 17; M. Krishnan v. Vijay Singh and Anr.: (2001) 8 SCC 645; Savita v. State of Rajasthan: (2005) 12 SCC 338; and S.M. Datta v. State of Gujarat and Anr.: (2001) 7 SCC 659}.â€​

In the case at hand, the FIR for the said incident was registered against the “Hospital Authority†being so shown as the accused in the relevant

column meant for that. The gist of the accusations as indicated in the charge sheet is that:-

“Under the above circumstances, it is crystal clear that there was the incident inside the Medicine ICU and Dalysis ward of SUM Hospital, Bhubaneswar and there was loss of 23

nos. of human lives. The instructions imparted bny the Fire Prevention Wing, Orissa and Fire Audit Team on the fire safety of the Hospital were not complied by the Hospital

Authorities. The Hospital Authorities were well known that if they do not fulfill the shortcomings of the fire safety measure as pointed out by the Fire Audit Team, it may endanger

the life of patients as well as the properties of the hospital. Thus, the Hospital Authorities knowingly and negligently omitted the instructions to guard against the probable danger to

human life from fire. So, there is sufficient evidence U/s. 304/308/285/34 of IPC and section 17 of the Orissa Fire Service Act, 1993 is well established against the accused persons

namely, 1) Manoj Ranjan Nayak 2) Dr. Pusparaj Samantasinghar, 3) Amlya Kumar Sahoo, 4) Malay Kumar Sahoo and 5) Santosh Kumar Das, Fire Safety Officer of IMS & SUM

Hospital, Bhubaneswar. Hence, I submitted Khandagiri P.S. C.S. No. 103 Dt. 21.03.2018 U/S. 304/308/285/34 IPC/ 17 of Orissa Fire Service Act, 1993 against them to face their trial

in the court of law.â€​

A careful reading of the above shows that the investigating authority is of the view that the Hospital Authority knowingly did not carry out the

instructions to guard against the probable danger to human life from fire by taking no such step in complying the suggestive measures pointed out in

the last fire audit in the year 2013 and having neglected in not doing so, they have committed the offences.

It appears that all such steps in making correspondences with the Authority of the State to cover up the deficiencies as pointed out during last Fire

Audit of the year 2013 have been made by the concerned Authority attached to the said Medical College and Hospital. Those have been collected in

course of investigation. The Registrar of the SOA University on 14.07.2016 had written a letter to the Inspector General of Police, Fire Services

Odisha to issue ‘No Objection Certificate’ in view of compliance of all the suggestions given by them on 05.04.2013 concerning 2B+G+2 floors

of Hospital Block and G+3 floors of Medical College and other buildings. The return correspondence is also with that Registrar asking further

documents for grant of ‘No Objection Certificate’ to which he has responded.

In view of all the aforesaid, keeping in view the first limb of the submission of the learned Senior Counsel for the petitioner and the reply of learned

Additional Standing Counsel, it needs be examined as to whether the court below has committed any illegality or impropriety in passing the order of

taking cognizance of offence under sections 304 and 308 IPC.

Admitted position is that in CRLMC No. 224 of 2017, this Court by order dated 22.08.2017 in seisin of a proceeding under section 482 Cr.P.C. to

consider the prayer to quash the FIR in question upon examination of the contents, first of all has referred to the provision of section 299, 304 and 304-

A IPC and then has carefully gone through the decision of the Apex Court in “Shantibhai J. Vaghela and another vs. State of Gujarat and others;

(2012) 13 SCC 231 and found the facts of the case in hand as akin to the facts of the cited case in with respect to the allegations of negligence on the

part of the Hospital Management in the matter of providing adequate fire safety measures, that ultimately resulted in the death of some persons due to

fire accident caused by electrical short circuit. Taking note of the fact that there stands no allegation of commission of any positive act on the part of

the hospital management as distinguished from silence, inaction or mere lapse or failure to provide adequate fire safety measures which is the principal

allegation in the FIR, it had been said that no prima facie case is made out for culpable homicide not amounting to murder punishable under section 304

IPC and also section 308 IPC and therefore registration of FIR for offence under section 304 and 308 IPC having been held to be unsustainable, it

was directed that the FIR be registered for offence under section 304- A IPC for investigation. This Court of course then had further clarified the

same confining the view as to the stage as it was then with the materials as then available.

The relevant paras are as under:-

“13. The facts of the instant case are almost akin to the facts of the case in Shantibhai (supra) with respect to the allegations of negligence on the part of the

hospital management in the matter of providing adequate fire safety measures, that ultimately resulted in the death of some persons due to the fire accident caused by

electrical short-circuit. In the FIR there is no allegation of commission of any positive act on the part of the hospital management as distinguished from silence,

inaction or a mere lapse or failure to provide adequate fire safety measures which is the principal allegation in the FIR. As such prima facie it cannot make out a case

of culpable homicide not amounting to murder punishable under section 304 and section 308 of the IPC.

In the aforesaid circumstances, registration of the FIR in the present case for the offence under section 304 IPC and not for offence under section 304-A, IPC is

unsustainable, and, therefore, this Court strikes off section 304, IPC from the FIR and directs for registration of offence punishable under section 304-A, IPC in its

place and continue with investigation accordingly.

This direction however should not be understood to mean that the power of the Investigating Officer to submit charge-sheet under section 304, IPC, in case

during investigation sufficient materials and evidence are gathered making out prima-facie a case of culpable homicide not amounting to murder, and also the power

of the Court under section 216 or section 232 of the Code of Criminal Procedure is curtailed.â€​

The judgment has been duly communicated and the Court below has received the same on 20.09.2017 and that has also been duly communicated

to the Investigating Officer.

The investigating agency appears to have totally ignored the order. The case diary does not reveal that even any reference to that order has ever been

made by the Investigating Officer. Pursuant to the order, there was never any rectification as to the registration of the FIR, as directed. The

investigation having proceeded further at the end, charge sheet has been submitted for those two offences under section 304 and 308 IPC after noting

that this Court has so directed to submit the Final Form. The narrations in the charge sheet do not reflect as to what are those materials which have

been collected in the investigation in addition to those materials available while lodging the FIR and its registration as are sufficient for making out

prima facie case of culpable homicide not amounting to murder and attempt to commit culpable homicide.

So in view of the earlier order not only that the Investigating Agency has not stated a single line with reference to any material so collected as to

commission of any positive act on the part of the Hospital Management as distinguished from silence, inaction or a mere lapse or failure to provide

adequate fire safety measures so as to prima facie make out a case of culpable homicide not amounting to murder punishable under section 304 IPC

and under section 308 of the IPC to justify the action of submission of charge-sheet restoring to those provisions. The court below, as is crystal clear

from the impugned order, has just gone to accept the charge sheet version as if being not aware of the earlier order of this Court in CRLMP No. 224

of 2017. It has also not provided any justification whatsoever with reference to the materials being collected in the investigation and taken into

consideration so to infer for a moment that the court below has duly exercised the power as per law in taking cognizance of those offences. The court

below has merely approved the action as proposed in the charge-sheet without any short of examination of the materials collected in course of

investigation and referring to those.

It is worthwhile to point out that so as to be apprised of the detail developments as to filing of the charge sheet for offence under section 304/308 IPC,

this Court by order dated 04.12.2018 had directed the ‘State’ (Prosecution) to file point wise note to the revision petition. Pursuant to that order,

the learned counsel for the State upon receipt of the detail information from the Investigating Officer has filed the note on 11.01.2019.

It is stated that based on the version of patients examined during investigation who have stated about the lacuna of fire safety and prevention as on the

active part of the Medical Authorities and the complainant, the charge sheet has been filed. When the version of the complainant was there from the

beginning and such were the statements of the witnesses, the note is silent that based on what materials and in which way, prima facie case is made

out for offence under section 304 and 308 IPC. The direction of this Court appears to have not at all been touched upon and rather thrown to the

winds by Investigating agency in submitting the charge-sheet and so also by the court below, while passing the impugned order.

The intent or knowledge has to be the direct motivating force of the act for the grave and more serious charge of culpable homicide. Mere possibility

of knowledge that death is a consequence of an act is inadequate to draw an inference as to the existence of requisite knowledge in the mind of the

offender. A degree of certainty in the awareness of the individual as to the likelihood of death as a consequence of his act is a pre-requisites for

imputation of requisite ‘mensrea’ in a case of culpable homicide. The Magistrate is not to take cognizance of offences on the mere ipse dixit of

the prosecution even in the absence of any such material prima facie justifying those offences. The Magistrate has to apply his mind independently to

the facts of the case based on uncontroverted materials placed in taking a view that a prima facie case stands for the offences to be taken

cognizance. The legal proposition do not stand that the court is bound to take cognizance of a graver offence by way of abundant caution although the

materials on record do not prima facie show the ingredients of the alleged graver offence. The duty is not ministerial and as like a post office.

In view of all the aforesaid, the order of the learned Magistrate taking cognizance of the offences under section 304 and 308 IPC do not stand to get

the seal of approval in saying that there surfaces no such illegality or impropriety therein and as such said order as passed cannot be sustained.

Proceeding to address the second limb of the submission specifically as to the issuance of process against the petitioner, let us take note of the

decision in so far as issuance of process in a criminal proceeding against a person is concerned. In case of Pepsi Foods Ltd. Vs. Special Judicial

Magistrate; (1998) 5 SCC 749, it has been held:-

“Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course.

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The order of the Magistrate must reflect that he has applied his mind to the facts of the case and the law applicable thereto.

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The complaint petition, given face value and taken to be correct in its entirety, should disclose an offence instead of being found to be an abuse of the

process of the Court.â€​

In summoning an accused, the merits and demerits of the case are not required to be examined so also as to whether the materials collected are

adequate for supporting the conviction. The evaluation of the evidence for judging its merit is not the exercise required to be undertaken. The order of

issuance of summon is based upon subject to the satisfaction of the Magistrate considering the police report and other documents and satisfying

himself that there is sufficient ground for proceeding against the accused. The court must apply its mind to the allegations in the charge-sheet and

evidence produced and accordingly satisfy itself as to the sufficiency of the ground to proceed against the accused so as to issue process against him.

Coming to the question of exercise of the revisional jurisdiction against order of issuance of process, it is profitable to refer to the case of Amar

Nath and Others Vrs. State of Haryana and Another (1977) 4 SCC 137. It has been held therein that the term “interlocutory order†in Section

397(2) Cr.P.C. denotes orders of purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties and

any order which substantially affects the right of the parties cannot be said to be an ‘interlocutory order’. In K.K. Patel and Another v. State of

Gujarat and Another (2000) 6 SCC 195, this Court held as under:-

“11. ……….. It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such

order was passed during the interim stage (vide Amar Nath and Others v. State of Haryanaand Another (1977) 4 SCC 137, Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551,

V.C. Shukla v. State through CBI 1980 Supp. SCC 92 and Rajendra Kumar Sitaram Pande and Others v. Uttam and Another (1999) 3 SCC 134). The feasible test is whether by

upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as

envisaged in Section 397(2) of the Code………â€​.

Whether against the order of issuance of summons under Section 204 Cr.P.C., the aggrieved party can invoke revisional jurisdiction under Section 397 Cr.P.C. has

been elaborately considered by this Court in Urmila Devi v. Yudhvir Singh (2013) 15 SCC 624. After referring to various judgments, it was held as under:-

“14. ………. On the other hand in the decision in Rajendra Kumar Sitaram Pande and Others v. Uttam and Another (1999) 3 SCC 134, this Court after referring to the earlier

decisions in Amar Nath and Others v. State of Haryana and Another (1977) 4 SCC 137, Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551 and V.C. Shukla v. State through

CBI 1980 Supp. SCC 92 held as under in para 6: ( Rajendra Kumar Sitaram Pande case , SCC pp. 136-37).

“6. … this Court has held that the term ‘interlocutory order’ used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in

order to ensure complete fairness of the trial and the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but

intermediate or quasi-final. This being the position of law, it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar

under sub-section (2) of Section 397 would apply. On the other hand, it must be held to be intermediate or quasi-final and, therefore, the revisional jurisdiction under Section 397 could

be exercised against the same. The High Court, therefore, was not justified in coming to the conclusion that the Sessions Judge had no jurisdiction to interfere with the order in view of

the bar under sub-section (2) of Section 397 of the Code.â€​

This decision makes it clear that an order directing issuance of process is an intermediate or quasi-final order and therefore, the revisional jurisdiction under Section 397 CrPC can be

exercised against the said order. This view was subsequently reiterated in K.K. Patel and Another v. State of Gujarat and Another (2000) 6 SCC 195.â€​

After referring to various judgments, in Urmila Devi, this Court summarised the conclusion as under:-

“21. Having regard to the said categorical position stated by this Court in innumerable decisions resting with the decision in Rajendra Kumar Sitaram Pande and

Others v. Uttam Singh and Another (1999) 3 SCC 134 as well as the decision in K.K. Patel and Another v. State of Gujarat and Another (2000) 6 SCC 195, it will be in

order to state and declare the legal position as under: 21.1. The order issued by the Magistrate deciding to summon an accused in exercise of his power under

Sections 200 to 204 CrPC would be an order of intermediatory or quasi-final in nature and not interlocutory in nature.

21.2. Since the said position viz. such an order is intermediatory order or quasi-final order, the revisionary jurisdiction provided under Section 397, either with the

District Court or with the High Court can be worked out by the aggrieved party.

21.3. Such an order of a Magistrate deciding to issue process or summons to an accused in exercise of his power under Sections 200 to 204 Cr.P.C, can always be

subject-matter of challenge under the inherent jurisdiction of the High Court under Section 482 Cr.P.C.

…………………

Therefore, the position has now come to rest to the effect that the revisional jurisdiction under Section 397 Cr.P.C. is available to the aggrieved party in

challenging the order of the Magistrate, directing issuance of summons.â€​

In a catena of judgments, it has been held that the aggrieved party has the right to challenge the order of Magistrate directing issuance of summons.

The petitioner as is seen from the charge sheet has been placed for trial of the offences as above being taken as within the group and ambit of the

‘Hospital Authority’ being the President of the Trust whose one such unit is the Medical College and Hospital and that on 18.07.2009, upon a

letter of request being given by the petitioner for grant of No Objection Certificate and to have the Fire Audit of the Hospital, the Authorities had

visited the Hospital and had given the report on 30.07.2009. As to the compliance of the suggestive measures pointed out then, there is no complain

and it is said that all such suggestions have been carried into execution. The Medical College and Hospital have their work force in different fields of

work including officials manning the Departments with placement of personnels being designated to look after the infrastructural affairs and the fire

safety measures. They have been arraigned as accused persons.

The allegation is as to the inaction in the matter of the suggestions for fire safety as pointed out during Fire Audit of the hospital conducted in the

year 2013 by letter dated 05.04.2013. The prosecution case is that in the subsequent Fire Audit in the year 2013, some more suggestions being given,

those were not taken care of and for said negligence on the part of the Hospital Authority coupled with inadequate maintenance of available fire

safety installations; the incident took place.

All the above factual settings, when emanate from the materials placed by the prosecution in filing the charge-sheet, the learned Magistrate was under

legal obligation to keep those in mind in order to arrive at a satisfaction as to whether there are sufficient grounds for proceeding against the petitioner

or not. Thus on that score also, the impugned order does not successfully pass through the laid down tests.

In the wake of all the aforesaid, the impugned order is set aside and the matter is remitted back to the court below for being dealt in accordance

with law.

Accordingly, the REVISION stands disposed of.

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