FAYAZ AHMAD INDRABI Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a reference made by the learned 1st Addl. Sessions Judge, Srinagar recommending to set aside the order of the learned Chief Judicial Magistrate, Srinagar dated 23 -5 -2000, vide which order the learned Chief Judicial Magistrate permitted the prosecution of the employees of the Electric Department.

(2.) BRIEFLY put the facts are that on13 -2 -1998 and information was received in the Police Station, Parimpora that electric LT line has fallen due to which the kitchen, cow -shed and shop of the present petitioner caught fire and was damaged. On this information, the fire incident was investigated and it was found that the negligence of the Electric Department in maintaining the supply line in a proper and fit condition. Had the supply line be in proper order, the electric supply line would not have fallen and the kitchen, cowshed & shop of the petitioner would not have burnt. On the completion of investigation charge report under section 287 RPC was filed in the Court of Chief Judicial Magistrate, Srinagar against the employees of the department, Fiaz Ahmed, Asstt. Executive Engineer, Abdul Rashid Ganai, Inspector and Mohd Yousuf Dar, Lineman.

(3.) A preliminary objection was raised before the Chief Judicial Magistrate regarding the maintainability of the charge -report without sanction under Section 197 Cr.P.C to prosecute the accused/ employees of the Electric Department on the plea that no prosecution can lie against the employees of the department, for the acts done by them in the curse of their duty. The learned Chief Judicial Magistrate after hearing the parties, vide order dated 31 -5 -2000 came to the conclusion that the defence of sanction under section 197 Cr PC on the facts and circumstances of the charge report is available to the accused because their act of negligence did not constitute any part of their duty.