MEHAR SINGH Vs. UNION OF INDIA (UOI) ETC.

JUDGEMENT

(1.) The Petitioner prayed for quashing the orders detailed in Annexures B. G. and H and the proceedings for trial started against the Petitioner before the Respondent No. 5.

(2.) The Petitioner was working as Head -constable in the Police Force at Simla. On 18th December, 1969, the Petitioner along with Shri R. R. Verma, Superintendent of Police and Sub -Inspector Vishnu Datt were travelling in jeep No. HIM 9101. Shri Vishnu Datt had undertaken the journey from Simla to Chailla for traffic checking. The Petitioner as also Shri R. R. Verma, were in his company. The Petitioner was on the wheels. At a place known as village Hath, 14 k.m. away from The of towards Chailla side when it was 4.45 P.M., the jeep was involved in an accident although the Petitioner was driving the vehicle not rashly or negligently but at a slow speed. As a result of the accident one Lokhu Ram was also working as a labourer on the road sustained certain injuries and he was admitted in the Snowdon Hospital where he expired on the same day. Shri Vishnu Datt, lodged a report at the Police Station Theog on 18 -12 -1969. Thereupon Shri Devi Singh, S. H. O. Theog proceeded to the spot to investigate the matter and after some preliminary investigation, he registered F. I. R. No. 1034 of 18 -12 -1969 at 8 P. M. under Ss. 279/304A of the Indian Penal Code. He also submitted a copy of the F. I.R. to Respondent No. 7 who was posted as Magistrate 1st Class, at Theog on 19th December, 1969. While submitting report to Respondent No. 7 mentioned therein i. e. in the report, although the preliminary investigation carried out by him disclosed no negligence of the Petitioner, but since the injured i.e. Lokhu Ram had died, the case was being registered and the further investigation was carried out in accordance with law. The Magistrate on receipt of this report passed an order whereby he decided to hold an enquiry as contemplated under Sec. 159 of the Code of Criminal Procedure He further ordered that he had decided to hold an enquiry into the cause of death of Shri Lokhu Ram, instead of the enquiry held by Respondent No. 6 as contemplated by Sec. 176 Code of Criminal Procedure A copy of this order was sent to the S. H. O. Respondent No. 6 as also to the Superintendent of Police, Mahasu, Respondent No. 2. The former received the copy of the order late in the evening of 23 -12 -1969. It is alleged that the Respondent No. 6 was not aware of the mind of the Respondent No. 4. Consequently in accordance with the provisions of Code of Criminal Procedure he went ahead with the investigation of the case. He after receipt of the orders, sent the communication to Respondent No. 7 who was working as Magistrate first class, Theog, to the effect that he had already completed the investigation of the case, F. I. R. No. 134 dated 18th December, 1969. He sent his report through the Additional Police Prosecutor who gave his opinion on 29th January, 1970, to the effect that the Petitioner was not responsible for the injuries sustained by Lokhu Ram, deceased and he was not guilty of rashness and negligence as the accident was due to the fault of the injured. He recommended that the case against the Petitioner be cancelled. The report of the Respondent No. 6 along with the opinion of the Additional Police Prosecutor was sent to the Police Prosecutor, Mahasu district, who in turn, by his order dated 31 -1 -1971 agreed with the opinion of the Additional Police Prosecutor, Theog, and the report of Respondent No. 6. The papers were placed before the Respondent No. 2 who agreed with the facts and opinion of his subordinates and forwarded the papers to the Respondent No. 7 who was working as Magistrate, first class, Kasumpti, with the request that the case be ordered for cancellation. It appears that Respondent No. 7, who was working as Magistrate first class, proceeded with the investigation in the light of the order made by him. He held the enquiry at the back of the Petitioner and submitted an enquiry report on 25th May, 1970 to Respondent No. 3, the District Magistrate, Mahasu. In the report it had been observed:

(3.) In reply by the Respondents, it was submitted that there were reasonable grounds to believe that the injuries to Shri Lokhu Ram which resulted in his death were caused by the rash and negligent driving on the part of the Petitioner. The observations made by the Station House Officer in the F. I.R. were premature. The endorsement with recommendation for the cancellation of the case made by Shri Durga Singh, District Inspector of the Police, was received in the office of Respondent No. 4 on 9 -2 -1970 when the enquiry in pursuance of order Annexure B was in progress. As the Respondent No. 4 disagreed with the investigation report sent by the S.H.O., the former had taken cognizance of the offence under Ss. 279 and 304A I.P.C. against the Petitioner for which there was prima facie evidence and as the Respondent No. 4 had conducted enquiries himself, it was desirable on his part not to hold the trial himself and, therefore, he requested the District Magistrate to entrust the case to some other Magistrate for trial. The Respondent No. 4 had initiated the enquiries under Sec. 159 Code of Criminal Procedure simultaneously holding the enquiry under Sec. 176 Code of Criminal Procedure . There is no legal bar for the Magistrate in such circumstances to make enquiries simultaneously with the investigations being conducted by the S.H.O. As far the provision contained in P. P. R. 16.38 (i) 16.38 (ii) they had no application to the facts of the case and cognizance of the offence taken, under Sec. 279 and 304A by the Respondent No. 4 was quite valid under the law.