R.K. Dash, J. - (1.) NARESH Kumar Shukla (hereinafter referred to as 'the deceased'), a chemical engineer joined as a trainee on 28.4.1996 with M/s. Flex Industries Limited, Noida in the newly created district of Gautam Budh Nagar. He in course of employment in the industry met with an accident resulting in his death. Respondent no.2, father of the deceased filed a complaint before the Chief Judicial Magistrate, Ghaziabad alleging that the petitioners being the officials of the said industry had assigned creation of a plant imported from France and asked the deceased to work over time. After the tragic incident the complainant visited the premises of the industry and came to know that heavy steel roller which was kept at a height of 1.5 meter supported by two wooden stakes on both sides suddenly feel down on the deceased who was sitting on the floor and making some adjustment of the bracket of the roller. The deceased was immediately rushed to a Nur Singh Home where he breathed his last. Further case of the complaint is that on being asked as to how the deceased was asked to sit and work on a small and narrow place, accused Anil Gupta and Mahabir Saran Confessed that the accident took place due to rash and negligent act of all the accused persons and requested to pardon them. The complainant approached the District Magistrate, Ghaziabad and requested the police to enquire into the incident but it was to of no effect. It was thereafter that he moved the court by filing complaint. Learned Magistrate upon examination of the complainant and the witness produced by him took cognizance of the offence under Section 304-A.I.P.C. and Summoned all the accused persons. Thereupon, the accused persons filed a petition to recall the order of cognizance and the same having been rejected, they approached the Sessions Court in revision which also did not yield desired result. Aggrieved by the order of the revisional court, they filed present petition under Section 482 Cr.P.C. seeking quashing of the proceedings in the com[plaint case bearing no.627 of 1996 pending in the court of Chief Judicial Magistrate, Ghaziabad.
(2.) SRI Gopal S. Chaturvedi, learned Senior Counsel appearing for the petitioner contended that even if the allegations made in the complaint are taken in entirety and on their face value do not make out any offence under Section 304-A I.P.C. and since the deceased was a young engineer and met with tragic death due to accident in the factory, the learned Magistrate made emotional approach to the case and without there being sufficient ground for proceeding against the accused persons took cognizance of the aforesaid offence and issued process for their appearance. It is true, while taking cognizance of the offence, the Magistrate is not required to give reasons, but his order must show that he applied judicial mind to fined if primafacie case is disclosed from the averments made in the complaint and the statements of the complainant and his witness if any, for proceeding against the accused. In the case on hand, the impugned order, annexure-4 does not reveal that the learned Magistrate made a judicial approach to the case and was satisfied from the available materials that prima? facie case under Section 304-A I.P.C. is made out. In that view of the matter, it was urged that the criminal complaint being the outcome of anger of the complainant, order of the Magistrate taking cognizance of the offence under Section 304-A I.P.C. and consequent order issuing notice to the accused persons should be quashed. Per contra, learned counsel appearing for the complainant would strenuously urge that law does not mandate that the Magistrate should pass a detailed order about his satisfaction before taking cognizance of the offence and therefore, the impugned summoning order, annexure-4 which is the based on satisfaction of judicial conscience cannot be scraped or rejected. As to the factual aspect of the case, he submitted that since death of the deceased was as a result of the accident, occurred due to rash or negligent act of the accused persons and at this stage when cognizance of the offence has only been taken, the Court should be loathe to interfere with the impugned order and bring the criminal proceeding to a halt in exercise of inherent power. Before adverting to the arguments advanced by the counsel appearing for the parties, at the outset it is desirable to decide the question, though not raised by the complainant whether the petitioners, whose revision against the order of the Magistrate taking cognizance of the offence having been dismissed in revision can move this court under section 482 Cr. P .C. Judicial opinion of various High Courts on this aspect is not unanimous. Some say that in view of the legislative intention enacting Section 397 (3) second revision in the garb of a petition under Section 482 Cr. P.C. is not maintainable. Others have taken contrary view observing that where the order of the subordinate court is wrong and illegal and if allowed to remain grave injustice would ensue, the Court for the ends of justice should invoke inherent power and quash the said order. Experience shows that sometimes Sessions Judge's order is wrong, illegal and perverse. So, if the said order is not interfered with when challenged in view of the embargo placed by Section 397(3), it will cause irreparable injury to the person aggrieved and consequently justice will be a casualty. The question has been settled at rest by the Supreme Court in the case of Krishnan Vs Krishnaveni, AIR 1997 SC 987 = 1997 Cr. L. J. 1519 Where the Court observed thus: "Ordinarily, when revision has been barred by Section 397 (3) of the Code, a person ?accused/complainant?cannot be allowed to take recourse to the revision to the High Court under Section 397 (1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397 (3) or Section 397 (2) of the Code. It is seen that the High Court has suo moto power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice of order passed or sentence imposed by the magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensure. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code......" So far the present is concerned, for the reasons to follow I would old that notwithstanding the bar of second revision as envisaged in Section 397 (3), it is a fit case where this Court in exercise of inherent power should upset the order of the Magistrate taking cognizance of the offence under Section 304-A I. P.C. and quash the criminal proceedings.
(3.) THE grievance of the petitioners in the present case is that since the facts narrated in the complaint do not constitute any offence, more so an offence under Section 304-A I.P.C. and this aspect of the matter having not been considered both by the Magistrate as well as the revisional court, this Court would be well within its jurisdiction to consider the same and quash the impugned order consequent criminal proceedings in exercise of inherent power. Inherent powers are in the nature of extra- ordinary power to be used sparingly for achieving the object as mentioned in Section 482 Cr. P.C. It is the settled position of law that such power should be exercised sparingly and in rarest of rare case. On a bare reading of the FIR or the complaint where the Court finds that no offence is made out and continuance of the criminal proceeding will cause unnecessary harassment to the accused, it would be justified to exercise inherent power and bring the proceeding to a close. Reference in this context may be made to a decision of the Supreme Court in the case of State of Bihar Vs Murad Ali Khan, 1994 (4) SCC 655 where the Court observed: "It is trite that jurisdiction under Section 482 Cr. P.C., which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court Should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet do not in law constitute or spell out any offence an that resort to criminal proceeding would, in the circumstances, amount to an abuse of the process of the court or not." ;