Allowed

A.U.Raghurama Panicker v. Bijil

Kerala HC1 Dec 2021Crl.MC/2367/2018

Case brief

AI extract

What is this about?

In a miscellaneous criminal case, the High Court of Kerala allowed a petition to quash criminal proceedings against the Managing Trustee of a temple. The court held that since the accused held a valid license for gunpowder and no specific negligent act was attributed to him personally under the IPC or Explosives Act, vicarious liability did not apply. Proceedings were quashed as the chance of succ

What did the court decide?

Criminal proceedings in CC No. 2093/2017 against the petitioner were quashed.

A.U.Raghurama Panicker Vs Bijil — Cheque Dishonour | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

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WEDNESDAY, THE 1ST DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943

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CRL.MC NO. 2367 OF 2018

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AGAINST CC 2093/2017 PENDING ON THE FILES OF THE COURT OF
JUDICIAL MAGISTRATE OF FIRST CLASS -II,THRISSUR

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PETITIONER/ACCUSED 1:

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A.U.RAGHURAMA PANICKER

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AGED 56 YEARS, S/O.UNNIKRISHNA PANICKER,
AVANAGATTIL KALARI,.P.O KIZHAKKUMURI,
PERINGOTTUKARA, THRISSUR-680571.

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BY ADVS.

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SRI.M.REVIKRISHNAN
SRI.SANTHOSH P.PODUVAL

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RESPONDENTS/DEFACTO COMPLAINANT & STATE:

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1BIJIL
AGED 32 YEARS, S/O.GOPI, VEMBADI HOUSE,
PERINGOTTUKARA DESOM, KIZHAKKUMMURI VILLAGE,
ANTHIKKAD, THRISSUR, KERALA, PIN-680571.

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2STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA ERNAKULAM-682031.

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BY ADV

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SRI.N.L.BITTO
PP-SRI.ARAVIND V. MATHEW

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
01.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 2367 OF 2018

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ORDER

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The petitioner herein is the 1^st accused in C.C.No.2093/2017 on the files of the Judicial First Class Magistrate Court II, Thrissur. The offences alleged against the petitioner and other three others in the aforesaid case are for the offences punishable under Section 285, 286, 304(A) read with Section 34 of IPC and under Section 9B(1)(b) of Explosives Act 1884.

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The allegation against the petitioner in brief is as follows: The petitioner is the Managing Trustee of Sree Vishnumaya Temple, Avanengad. On 19.02.2016 in connection with the Temple Festival, the petitioner permitted accused Nos.2 to 4 and father of the 1^st respondent herein to use a portion of gunpowder which was allocated to the petitioner on the basis of a license secured in this regard and consequent to the rash and negligent use of the same, an explosion took place in the premises, pursuant to which, the father of the 1st respondent suffered burn injuries and he died. Some of the other persons have suffered minor injuries as well.

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On the basis of the same, Crime No.383/2016 was registered by the Anthikkad Police and after completing the investigation,

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CRL.MC NO. 2367 OF 2018

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Annexure B final report was submitted. This Crl.M.C. is filed seeking to quash the aforesaid proceedings. The 1^st respondent who is the informant/de facto complainant in the case submitted an affidavit to the effect that, he has no grievances against the petitioner herein and he has no objection in quashing the proceedings against him.

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Heard Sri.M.Revikrishnan, learned counsel for the petitioner, Sri.N.L. Bitto, learned counsel for the 1^st respondent and Sri.Aravind V. Mathew, learned Public Prosecutor for the State.

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The specific case advanced by the learned counsel for the petitioner is that, none of the offences alleged against him are attracted. He brought my attention to Annexure C license obtained by him under the Explosives Act which enable him to hold the gunpowder and the same was valid from 10.02.2014 to 31.03.2018. The incident in this case has occurred on 19.02.2016 hence it was pointed out that as on the date of incident he was holding a valid license. It was also pointed out that going by the specific averments contained in Annexure B final report and the statements of witnesses recorded under Section 161 Cr.P.C., the only allegation is with regard to the negligent use of gunpowder by other accused persons and no specific acts are alleged or attributed against the

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CRL.MC NO. 2367 OF 2018

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petitioner herein. Merely because of the reason that he happened to be a

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Trustee of the Temple and licensee, he cannot be roped in the case.

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The only question that arises is whether any case is made out

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as against the petitioner herein. The offences alleged are under Section

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285, 286, 304 (A) IPC. Sections 285 and 286 read as follows:

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“285. Negligent conduct with respect to fire or combustible matter.

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Whoever does, with fire or any combustible matter, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person,

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or knowingly or negligently omits to take such order with any fire or any combustible matter in his possession as is sufficient to guard against any probable danger to human life from such fire or combustible matter,

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shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

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286. Negligent conduct with respect to explosive substance.

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Whoever does, with any explosive substance, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person,

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or knowingly or negligently omits to take such order with any explosive substance in his possession as is sufficient to guard against any probable danger to human life from that substance,

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shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”

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As far as the offences under Sections 285 and 286 are concerned, the

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offences can be attracted only against a person who alleged to have

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handled the explosive substance in rash and negligent manner. Even

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going by the allegations contained in the final report, it can be seen that

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CRL.MC NO. 2367 OF 2018

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the only allegation against the petitioner is that, he permitted the other accused to use the same. Since he was having the valid license for the same, that act by itself cannot attract the offences under the above provisions. As pointed out by the learned counsel for the petitioner, the principle of vicarious liability is not applicable to the criminal prosecution unless the same is specifically provided in the statute itself. As far as the offences under IPC are concerned, there is no such liability contemplated and therefore, even if it is found that the other accused persons have handled the gunpowder in a negligent manner no offence could be alleged against the petitioner herein.

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The other offence alleged against him is under Section 304(A) of Indian Penal Code. For attracting the aforesaid offence also, specific negligent act as against the petitioner has to be attributed, which is lacking in this case. The principles of vicarious liability as mentioned above is equally applicable to this provision also. In such circumstances, none of the offences mentioned above are attracted against the petitioner. Since the basis of offences under Sections 285, 286 and 304A are negligence, common intention for the parties cannot be attributed. Hence Section 34 of the IPC is also not attracted.

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CRL.MC NO. 2367 OF 2018

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What remains is the offence under Section 9(B)(1)(b) of

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Explosives Act 1884, which reads as follows:

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“(1) Whoever, in contravention of rules made under Section 5 or of the conditions of a license granted under the said rules-

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(a)………….

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(b) possesses, uses, sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both; and”

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On examining the aforesaid provision, it can be seen that the

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said offence will be attracted, when a person possesses, uses, sells or transfer any explosive substances in contravention of the rules under Section 5 or conditions of license granted under the said provision. However, in this case, it is an admitted fact even as per the averments in Annexure B final report that, he was having an explosive license. The allegations contained in the final report also do not indicate any specific violation of any rules or of the conditions imposed as per the aforesaid license. In such circumstances the offence under Section 9B(1)(b) also is not attracted. While considering this issue, it is also a relevant aspect that the de facto complainant has also expressed his no objection in quashing the procedings. It is true, the same as such cannot be the reason for quashing the proceedings, but in the light of the finding that no offence is attracted as against the petitioner herein, it is a relevant

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CRL.MC NO. 2367 OF 2018

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aspect, particularly because, the chance of a successful prosecution is very bleak. In such circumstances, allowing the proceedings to continue against the petitioner, would be a futile exercise.

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In such circumstances, I am of the view that this is a fit case in which the powers of this Court under Section 482 Cr.P.C. can be invoked. Accordingly, this Crl.M.C. is allowed. The proceedings in C.C.No.2903/2017 on the file of Court of Judicial First Class Magistrate II, Thrissur as against the petitioner herein, are hereby quashed.

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Sd/- ZIYAD RAHMAN A.A. JUDGE

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SCS

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CRL.MC NO. 2367 OF 2018

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APPENDIX OF CRL.MC 2367/2018

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PETITIONER ANNEXURE

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ANNEXURE ATRUE COPY OF THE F.I.R ALONG WITH THE
FIRST INFORMATION STATEMENT IN CRIME
NO.383/2016 OF ANTHIKKAD POLICE STATION,
THRISSUR DISTRICT.
ANNEXURE BTRUE COPY OF THE FINAL REPORT IN CRIME
NO.383/2016 OF ANTHIKKAD POLICE STATION,
THRISSUR DISTRICT.
ANNEXURE CTRUE COPY OF THE LICENSE ISSUED IN FAVOUR
OF THE PETITIONER/ACCUSED NO.1 BY THE
GOVERNMENT OF INDIA, MINISTRY OF COMMERCE
AND INDUSTRY, PETROLEUM AND EXPLOSIVES
SAFETY ORGANIZATIONS (PESO) DATED
10/02/2014 VALID UP TO 31/03/2018 WHICH
WAS IN CURRENCY DURING THE PERIOD IN
WHICH THE ALLEGED OCCURRENCE GIVING RISE
TO THE INSTANT PROSECUTION HAPPENED.

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RESPONDENT ANNEXURE

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ANNEXURE R1(A)ORIGINAL AFFIDAVIT OF THE DEFACTO
COMPLAINANT DATED 26.11.2021.

A.U.Raghurama Panicker v. Bijil

Case brief

What is this about?

What did the court decide?

A.U.Raghurama Panicker v. Bijil

Case brief

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