HARINATH RAM MILAN PANDEY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) IN an unfortunate incident which took place on 04th July, 2006, at about 8:00 p.m., an advertisement hoarding board allegedly put up by accused No.2 i.e. Chitra Publicity fell on one Maruti Esteem Car resulting into death of the driver and serious injuries to the girl who was sitting in the car. Upon investigation, the police has filed amongst others, a chargesheet against the petitioner, who was working as a Superintendent in the Ahmedabad Education Society since last about 10 to 15 years, the petitioner has moved this Court invoking its jurisdiction under Section 482 of the Code of Criminal Procedure (for short "Cr.P.C.") with the contention that there is no iota of evidence fixing the petitioner's responsibility in putting up the disputed structure as also any evidence establishing that the socalled structure allegedly put up by the petitioner was weak structure at the threshold itself. Learned counsel for the petitioner submitted that, even in the FIR, the allegations are made only against Chitra Publicity and not the petitioner herein or the Ahmedabad Education Society. The necessary copies of the documents have been placed on record by the petitioner.

(2.) THE learned APP vehemently opposed this application and submitted that the State must be given an opportunity to establish the case in which a valuable life of a person is lost only because of negligence of the petitioner and other coaccused persons. It was submitted that the fact as to whether the structure was weak or not or whether the accused persons were negligent in bringing up the said structure is required to be established during trial and the petitioner has no merits in the case. It was submitted that the panchnama reveals that the structure has fallen down, and in his submission, because it was weak, the socalled structure fell down on account of natural calamity i.e. thunderstorm.

(3.) IT is true that normally the Court would not interfere in its exercise of the powers under Section 482 of the Cr.P.C. and would allow the State to prosecute the offender, since the offender would always receive an opportunity chance to defend himself in the crossexamination. But such principle will apply only if the basic evidence on which the prosecution rests its case is made available on record, otherwise it will be a trial in futility. Learned APP is unable to say on what basis or on what evidence the petitioner is sought to be tried. He has only contended that, since the structure has fallen down, the petitioner amongst others is required to be prosecuted on the basis of material placed before the trial court along with chargesheet. However, learned APP is unable to lay any hand on any material that may ultimately be used establish the guilt of the petitioner during trial. At this stage, learned counsel for the petitioner invites attention of this Court to the case of State of Haryana and others Vs. Bhajanlal and others reported in AIR 1992 SC 604. The Hon'ble Court after holding that powers under Section 482 of Cr.P.C. should be exercised in rarest of rare cases, issued certain guidelines for such exercise. This Court may quote the relevant observations, "where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused." In the present case only basis for the prosecution is that the disputed structure has fallen down, and because it fell down, the submission is that it was a weak structure. Thus, if the FIR or other documents revealing the above fact is read on its face value, the only fact which comes on record is that the structure fell down, because it was weak. No evidence is sought to be pressed into service to prove the factors contributing to the weakness of the structure. Neither any evidence fixing the responsibility of the petitioner as regards the structure in question is sought to be pressed into service during trial. Under the above circumstances, this Court finds that this is one of those cases which requires interference under Section 482 of the Cr.P.C., otherwise the petitioner will unnecessarily face a trial which in all its certainty result into public waste of time, money and energy.