CHHAYA KHANNA Vs. STATE OF U P

JUDGEMENT

(1.) An unfortunate but destined and utterly pathetic incident happened in the Arabian Sea on the western Indian coast in which two heartthrobs of their parents, the most beloved ones of their other relatives and friends lost their lives in the sea, at the time when they were expected to be the source of fun, frolic and happiness to all. in the prime of their youth and career. The alleged malefactors of the crime, who are four in numbers- Smt.Chaya Khanna, Anil Kumar Chaukiyal, Sushant Kumar Panda and Mrs.C.R.D.Bhowmik have invoked the inherent jurisdiction of this court under section 482 Cr.P.C. to quash the charge sheet dated 8.12.2005 (Annexure no.III), relating to the said incident, of crime number 1157 of 2005, under sections 298, 304, 418, 120BIPC police station civil lines district Muzaffar Nagar which has culminated into registration of case no. 2549/9 of 2005 State versus Smt.Chhaya Khanna and others in the court of Additional Chief Judicial Magistrate, Court No.2, Muzaffar Nagar. Their ancillary prayer is to stay further proceeding of the said case pendent lite as they have not committed any offence and Muzaffar Nagar police and the Magistrate there has no power to prosecute them. They lack jurisdiction in this matter.

(2.) The grievance of the informant Sanjay Chauhan respondent no.4, who is the father of one of the deceased boys namely Nishant Chauhan, is that the applicants were entrusted with the duty by him and his wife to look after their young one in full faith and trust which they have betrayed. The clamor of the tearful eyes are tat instead of remorse and penance to ointment the unending grief and sorrow of those who have lost their most dear ones, the perpetrators of the crime have silhouetted themselves behind "the cause of action" and 'lack of jurisdiction' niceties of law, through this application under section 482 Cr.P.C., which should be rebuffed and they must be directed to be prosecuted ad their prayer for quashing of the charge sheet and the proceeding pending against them must be rejected by this court. They are charge sheeted accused, guilty of taking lives of the two young boys because of their criminal negligence amounting to culpable homicide not amounting to murder punishable under section 304 IPC. The cause of their death is the conscious omission of their solemn duty and responsibility, utterly callous, negligent and reprehensible act. The applicants were foisted with the duty and responsibility to protect the lives of the deceased boys and they, instead of keeping their promises, eschews it without any sense of guilt. These are the synopsized submission, which has been raised by the contesting rival sides in this application.

(3.) The thumbnail descriptions of the preceding incidents, which has given rise to this application, are recapitulated thus. Vidya Mandir Society established a school at 153 Rajapur Road (Jakhan), district Dehradun. The name of the school was changed to 'Scholars Home All India Senior Secondary School' in the year 1980. The school provides co-education to both boarders as well as day scholars. The number of boarders are 80 and rest of the students are day scholars with the total number of students being 2600 in the said institution. As a part of education, for overall development of the students personality, the institution under takes excursion tours every year which is a part of their curriculum. It is alleged in the FIR, lodged by Sanjai Chauhan respondent no.4 at police station Civil Lines, District Muzaffar Nagar, on 7.11.2005, that his son Nishant Chauhan was the student of class 9th of the said school and was a very promising student. The said school is .manned by applicant Smt. Chaya Khanna as it's principal. She works under the directions of the management of the institution. The management and the principal decided to take a tour of 77 students to Goa on 30.10.2005 which was to return back starting from Goa on 5.11.2005. Since the festivals of'Deepawali' and 'Bhaiya Duj' were falling interegnum and further as Nishant Chauhan did not know swimming, therefore informant respondent no.4 requested the applicants not to take his son to Goa on tour. He was ready to deposit the entire amount of expenses (Rs.85,000/-) for his son for the said tour with the management for sparing his son and was very reluctant to allow him to go on the said tour. The applicants did not succumb to his request, as they were not prepared to break the discipline of the institution. As Nishant Chauhan did not know swimming therefore informant expressed his anxiety and inquired about the safety measures in the sea. He was promised and assured by the applicants that during the tour the responsibility will be fully of the institution, the school staff and the teachers who will be present in adequate number to look after the children and they will not allow the students to swim in the sea and all the safety measures will be the responsibility of the management of the school. This dialogue had taken place on 23.10.05 in presence of the wife of the informant namely Smt-Anuradha Chauhan, his gunners Chabi Nath Yadav and Shahnawaj, and two others, Pappu and Deepak Bharawaj. Smt. Anuradha Chauhan the mother of Nishant Chauhan, also expressed her anxiety on phone with the applicants on 22.10.05 and was given the same assurances and promises with the same reply. On the said assurances and promises given by the applicants respondent no.4 and his wife became ready to send their son Nishant Chauhan on the tour to Goa. On their way from Dehradun to Goa, the tour convoy passed through Muzaffar Nagar bypass, near the farm of the respondent no.4 on 30.10.05 where some of the students were given break fast packets by the respondents no.4 and his wife. There also the parents expressed their anxiety to the applicants and requested them to leave their son with them as their son does not know swimming. Respondent no.4 was again assured and promised by the applicants that the safety and security of their son will be the responsibility of the school and it's management and they will not allow him to go in the sea and with the said reply the applicants again refused the request of leaving Nishant Chauhan with his parents. On 5.11.2005, by the criminal negligence of the applicants Nishant Chauhan was allowed to enter in the sea waters by the applicants, in swimming costumes, along with other students as a result of which five students Nishant Chauhan, Nikhil Singh, Prakash Nath, Harshit Kedia and Gaurav Verma were swept away by the under water current of the sea. However, three of them Prakash Nath, Harshit Kedia, and Gaurav Verma were saved by the boat men but Nishant Chauhan and Nikhil Singh could not be saved and drowned. The body of Nishant Singh was found but the body of the other boy Nikhil Singh was not traced and still lies in the sea. Investigation revealed that this incident had occurred on"Arossim Beach" of Goa. It is alleged that because of the criminal negligence of the ap- plicants the son of the respondent no.4 lost his life. With the said factual matrix the FIR of respondent No.4 was registered as crime number 1157 of 2005 under sections 298/ 304/418/120B IPC at police station Civil Lines District Muzaffar Nagar vide Annex - ure no. 1 to the affidavit appended alongwith this application. The registration of the FIR engineered the investigation and the I.O. recorded the statements of various persons as witnesses. He also went to Goa to investi- . gate the case and do the spot inspection of the beaches and record the statements of native witnesses. He also got the beaches photographed along with the warning hoarding fixed there. He also prepared the site plan note of the two beaches - where the incident had taken place and where the dead body of Nishant Chauhan was found. The applicants sensing their arrest during investigation approached this court through Criminal Misc. Writ Petition No. 11500 of 2005. Mr.Anil Kumar Chaukiyal and 2 Others versus State of UP through Secretary Home, Lucknow and 3 Others and a division bench of this court, while calling for a counter affidavit from the respondents in the aforesaid writ petition stayed the arrest of the petitioners in the aforesaid crime number on 21.11.2005 vide Annexure no.2 to the affidavit annexed with this application. Meanwhile, after completion of investigation, the charge sheet was submitted in court on 8.12.2005 by the investigating officer vide Annexure no.3 to the affidavit. Hence this application under section 482 Cr.P.C., was resorted to by the applicants with the prayer for quashing of the entire proceedings as stated above.