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SMT. CHAYA KHANNA & OTHERS versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Smt. Chaya Khanna & Others v. State Of U.P. & Others - APPLICATION U/s 482 No. 1580 of 2006 [2006] RD-AH 9933 (19 May 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Criminal Misc. Application No. 1580 of 2006.

Smt. Chhaya Khanna And 3 Others.....................Applicants

Versus

State of UP and 3 others..................................Respondents

Hon. Vinod Prasad, J

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 0f 2005, under sections 298,304,418, 120B IPC police station civil lines district Muzzaffar 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, Muzzaffar Nagar. Their ancillary prayer is to stay further proceeding of the said case pendent lite as they have not committed any offence and Muzzaffar Nagar police and the Magistrate there has no power to prosecute them. They lack jurisdiction in this matter.

The grievance of the informant Sanjai Chauhan respondent no. 4, who is the father of one of the two 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 clamour of the tearful eyes are that 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 and 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, eschewed it without any sense of guilt. These are the synopsized submission, which has been raised by the contesting rival sides in this application.

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 rests of the students are day scholars with the total number of students being 2600 in the said institution. As a part of education, for over all 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 Muzzaffar 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 interregnum 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 Shahnawaz, 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 Muzzaffar Nagar bypass, near the farm of the respondent no.4 on 30.10.05 where some of the students were given breaks fast packets by the respondent 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 Chauhan was found but the body of the other boy Nikhil Singh was not traced out 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 applicants 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 Muzzaffar Nagar vide annexure no. 1 to the affidavit appended along with 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 investigate the case and to 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 affixed there. He also prepared the site plan note of the two beaches - where the incident had taken place and where the dead body of the 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.

I have heard Sri Navin Sinha, Learned  Senior Counsel assisted by Sri Pankaj Bhatia advocate on behalf of applicants, Sri Amar Jeet Singh, learned Additional Government Advocate, and Sri G.S. Hajela advocate  counsel for the informant respondent no. 4 at a great length and have perused the application, affidavit filed in support thereof , counter affidavit filed by learned AGA  and rejoinder affidavit thereto by the applicants. Sri G.S. Hajela learned counsel for respondent no. 4, however, did not file any counter affidavit and submitted that on the own showing of the applicants and material placed on the record of the case by the applicants themselves they do not have any case for quashing of the proceeding and the charge sheet laid against them and therefore this application is liable to be dismissed.

Sri Navin Sinha learned senior counsel for the applicants circumscribed his submissions within the periphery of the scope of section 482 Cr. P.C. and did not challenge the factual matrix of the case nor canvassed his defense for seeking quashing of the charge sheet and contended that even taking the whole prosecution case to be true and correct no cause of action arose at Muzzaffar Nagar U.P. so as to give the police of police station civil lines Muzzaffar Nagar U.P., the power to investigate the crime and resultantly the court at Muzzaffar Nagar does not have the power to take cognizance of the offence and the entire case pending against the applicants is without jurisdiction and, in fact, there is a total lack of jurisdiction with both of them consequently the proceeding against the applicants  should be quashed. He contended that whatever happened was either in Union Territory of Goa or in the State of Uttranchal and no part of cause of action arose in Uttar Pradesh (Muzzaffar Nagar) Sri Sinha, secondly, contended that on the admitted facts no offences under section 298,304 and 418 IPC is made out against the applicants. He, thirdly, contended that there was no mens rea on the part of the applicants to commit any offence and hence a simple case of negligence and accident cannot be transformed into offences on mere allegations by respondent no. 4. The applicant no. 1 is the Principal of the institution and rest of the applicants were managers of the institution and hence they are not responsible at all for any offence. He contented that the applicant may a tortfeasors liable civilly but ingredients of criminal negligence is missing in this case and hence no offence is made out against them. Concluding his submissions Sri Sinha argued that offence under section 298 IPC is mentioned only with malicious intentions for the purposes of creating jurisdiction when, in fact, no such offence is made out against the applicants. He also contended that all offences are independent of each other and there is no continuity in them and hence the court at Muzzaffar Nagar has no jurisdiction to try the applicants. On all these submissions he concluded by praying that the proceeding against the applicants and the charge sheet be quashed.

Sri G.S. Hajela, learned counsel for the respondent informant together with the learned AGA contrarily contended that the applicants are liable for the death of two children. They submitted that the charge sheet has been laid in court by the I.O. and the informant must get a chance to substantiate his allegation at the trial by leading evidence. They contended that there was a chain of continuity running through the whole incident and therefore it is not correct to say that the offences are not continuing one. They submitted that the FIR is to be read as a whole and the incident of death of the child of respondent no. 4 cannot be looked into isolation. According to them it was only curtain draw at Goa and in fact the whole incident of tour is a conglomerated whole. They also contended that offence which has been committed by the applicants squarely falls under section 304 IPC as the applicants by their conscious omission caused the death of the children. In their submission the death was not merely an accident but it was a knowledgeable and active omission on the part of the applicants and therefore they are guilty for offence under section 304 IPC. They further contended that Muzzaffar Nagar court has the jurisdiction to try the offences as a very important part of cause of action arose there and that was the assurances and promises made by the accused at Muzzaffar Nagar. The applicants were reminded of their duty which was thrusted upon them by the parents, and the promise which they had made at Muzzafar Nagar, U.P. and they flouted it which unerringly confers right to the court at Muzzaffar Nagar, U.P. to try the offenders. They further contended that whether the allegation in respect of offences under section 298 are true or not can be adjudged only at the trial stage and not under section 482 Cr.P.C. where disputed questions of fact can not be gone into. They lastly submitted that mens rea is very much present in conscious omission of duty and breach of promise and therefore it is wrong to say that no offence is made out against the applicants. They contended that the applicants acted against the warning pasted on the hoarding on the beach and that anoints offence and guilt around them.  Concludingly they argued that the present application filed by the applicants is devoid of merit and deserves to be dismissed and respondent no.4 must get a chance to substantiate his allegations before the court of law by leading evidence.

Cogitating over rival submissions the controversy centers around the fact as to whether the applicants, on the facts of the present  case, are liable civilly or they are also liable criminally and further as to whether the  court at Muzzaffar Nagar has got the jurisdiction to try them or not? The second question is dependant upon jurisdictional arguments advance by both the sides and the first one is based on the submissions of lack of mens rea and pure case of accident and civil negligence as tortfeasors.

Coming to the first contention it is to be noted that ''Negligence' is both civil wrong as well as criminal offence.

According to Winfield's definition it is "the breach of legal duty to take care which results in damage , undesired by the defendants to the plaintiff".

Mozeley and Whiteley's Law Dictionary ,7th Ed., pp 232-33 describes Negligence as  " a culpable omission of a positive duty. It differs from headlessness, in that headlessness is the  doing of an act in violence without adverting to its possible consequences. In both case there is inadvertence, and there is breach of duty.

According to Collins Cobuild English Language Dictionary ''Negligence'  "is failure to do something which you ought to do or failure to show proper care and concern for something that you are responsible for".

The above quoted passages brings out the basic ingredients of ''Negligence'. They are firstly, that there was a duty  to care and secondly, failure to do it  with such care and caution which is expected of  a person who is entrusted with the said duty. Thus, "Negligence is a term of art. How ever it has distinct meanings in different jurisdictions............ In law of crimes there are a series of offences based on Negligence in which loss or injury is not material. It is enough if the act is likely to cause injury or endanger life." This brings us to the facts of the present case as acceptance of the first submission of the counsel for the applicant will depend up on the fact as to what was the duty or nature of their job with which the applicants were entrusted and with how much care and with what precautions the applicants have discharged the said duty in it's performance. It has been observed by this court in Kedar Nath versus State, AIR 1965 Allahabad, 233 at page 236 that  "apart from question of loss the ingredients which runs through every breach of the  law of Negligence is that there must be a duty to take care. The nature of the duty and standard of care will vary according to the nature of  the office or the contract and the circumstances. Generally speaking, the standard the law enjoins is governed by the knowledge and the skills that the office or the occupation requires, by the magnitude of the task and by the gravity of the consequence that are likely to ensue if the requisite degree of care is exercised...........Criminal Negligence is gross and culpable neglect , that is to say a failure of exercise that care and failure to take that precaution which , having regard to the circumstances , it was imperative duty of the individual to take........ The criminality lies in not taking the precaution to prevent the happening of the consequences in the hope, that they may not happen".

Applying the said principle on the facts of this case it is to be noted that a tour of school children was taken to Goa. The said institution was conducting such types of tours regularly as a part of their curriculum. The management of the institution was well aware of the hazards of the tour and it was expected of them to take all necessary and available precaution to avert any kind of accident or harm to the children. They were expected to act as professional tour managers as according to their own pleading in the case they were conducting such tours regularly. They were not novices not being able to perceive hazards of the trip. They were entrusted with the safety and management of the children on the trip. They were under legal as well as moral obligations to look for the safe return of the troupe to the school from were they had started. Their responsibility never came to an end during the whole route of the tour. They were entrusted with duty, both legal and moral, to bring back children home safely with out any injury and damage. The applicants run a school and according to them they have more that two thousand children in their institution. Running of such a big institution requires a great degree of caution and precaution both. They were not expected to act as novices. The record further reveals that the tour trope consisted of young children and infants some of whom were students of class I, II, IV, V, and VII. What was the duty with which the management was expected to take, keeping the hazards involved in the tour and whether they resorted to those steps to avert the incident or happening? The record reveals that after the FIR was lodged the I.O. had recorded the statements of Chabi Nath Singh Yadav, Deepak Kumar Bharadwaj, and there after he recorded the statement of K.L.Khanna who is the father in - law of applicant no. 1 and was the Secretary of the Society which runs the school. According to his statement under section 161 Cr.P.C. the institution was managed by applicant no.1 Smt Chaya Khanna along with Anil, his second son. He had come to know that on 5.11.2005 the warden and some teachers of the school entered in the sea waters and started making merry as a result of which due to sea waves some students were swept away and drowned. The body of Nishant Chauhan was recovered but the body of Nikhil Singh could not be recovered. Acccused Anil Kumar stated in his statement that for the said tour Rs. 85000/= were charged from each student. He further stated that on their way to Goa , the informant had met them at Muzzaffar Nagar and had given some breakfast packets to the children.  The applicant no. 1 had reached Goa by plane. On the date and at the time of incident Anil Kumar along with Mr. Panda had entered in the seawaters along with some children. Mr. Panda took 4-5 children in deep sea and due to a big sea wave five children were swept away. Three children were saved with the help of boatmen but two were drowned including deceased Nishant Chauhan. They also took the help of local police, boatmen, coast guard and helicopter to search for the other body but could not found it. The three saved boys were admitted in the hospital. Witness Gaurav Kumar Singh, Shahnawaz, Yudhvir Singh, Hari Singh, etc also suported the version of the informant along with the wife of the informant Smt.  Auradha Chauhan. The case diary further reveal that out of the children who had gone on tour Sarvdeep Singh, Gagan Deep Singh, Rishav, Arvind Kumar Nishad, Anuj Jaiswal, were students of class I,II and IV. The record of this application further reveal that the I.O. had gone to Goa and there the local witnesses, both police and civil, informed him that the teacher and other persons were informed that it is dangerous to bath in the sea and that they should not leave children in sea alone. The statements of these witnesses included statement of SHO of PS Verna, Harish Mankekar, Shailesh Narvekar, Sub Inspector of Police, Gatro vallo, Costan Furnandiz, etc. The I.O. also got the photography done of sea beach were in the incident had taken place, namely Arossim Beach. He found a warning hoarding on the said Beach which depicted the warning thus:-

"Welcome to Arossim Beach.

*Please note that the beach is totally unsupervised.

Bathing swimming in the sea is dangerous as there are strong under water currents.

You are kindly requested to read the caution boards erected at the main entrance of the beach and adhere to the instructions therein.* venturing or even wading it to the sea with out life guard equipments is not advisable....

....* You are advised to enter into the sea only after informing the lifeguard or the tourist police.* Those of  you who do not know swimming should not enter the water..........."                        

The I.O. also drew the sketch map of both the beaches were the incident had taken place and were the dead body of the Nishant Chuhan was found. It was after collecting all theses evidences that the charge sheet was laid against the applicants by him and it is under such facts that the contentions raised by the counsel for the applicants have to be judged. It is thus, clear that the troupe consisted of young infants and adolescence as well. What precaution had been taken by the institution to avert any such incident? There is nothing on the record to suggest that the applicants took any precaution at all. They were in charge of the young boys who are known for theirfun loving and mischievous behavior. Playfulness is their trait. They cannot be chained on such trips and for them it was all merry making. But what was the responsibility of the management and how far it had carried it out with care and caution? The answer in the present case is that the management was the sole responsible authority to take care of each and every child. It was not only responsible morally but was responsible legally as well. The applicants were entrusted with duty to take care and bring back safely all children. Not only the father of the Nishant Chauhan had reposed trust in them but in fact parents of each child has reposed trust in them for the safety of their child. Did the management fulfill the trust reposed in it by the parents or did it betray it in the present case?  The answer is not difficult to perceive of all these questions and the answer is an emphatic NO. The applicants them selves claim that they had been conducting such tours every year. They were not new in the tour conduction. Why they did not take proper precaution at all. In fact the records go to show that they did not take any precaution what so ever to avert such type of incident before entering in seawater. Of course they did act but that was only for the purposes to recover the dead bodies albeit one of it could not be recovered. It was too belated a stage to be of any help to them. Before that they did not at all adhered to the warning depicted by the hoarding on the beach. They did not take the help of lifeguard, tourist police, nor they provided the children with life safety belts. They above all took the children in deep sea especially Nishant Chauhan, when they knew fully well, and were also made aware of by his parents, that he did not know swimming and the result was the inevitable tragedy. Can such a negligence be dubbed only as civil negligence making the applicants liable civilly only as tortfeasors and not criminally? Can the applicants plead that they are not at fault for the death which according to them was an accidental drowning, and for which they are ready to pay compensation, if prosecuted civilly? Can they plead absence of mens rea  in this case and go scot free even when one young boy has lost his life and  his parents has lost the charm of this vegetative world as has been argued by the learned counsel for the applicants? The answer to all these questions to me seems to be No. In my view they are responsible criminally more than civilly. The incident took place because of their negligent act and eschewable of " a must duty". They cannot claim absence of mensrea. They can not plead that such type of an accident was not comprehensible, and they inspite of their due care and caution could not avert it. They had not taken any precaution at all so much so that after the accident it was only the boatmen who came to the rescue of children who were fighting for their lives. The nature of incident was well perceptible and in fact it is the first thing that should have flashes in the minds of the applicants while planning for such a tour. How it could escape the thoughts of the applicants as pleaded by them. In fact the danger was well comprehensible but the management applicants because of its criminal negligence knowing eschewed it. For that reason it seems to me criminality is attached in their omission. The applicants acted in a most reckless manner and with utmost irresponsibility. Their omission was not that of only of tortfeasors but is of an accused offenders and they have been rightly charge sheeted as an accused and can be charged with the offence prima facie, of man slaughter with absence of intent. Let me remind that ''offence' is not only an ''act' but it is an ''omission' as well. Omission of a mandate of law is an offence and not merely a civil liability. It is by way of omission that the death had ensued in this case. The omission was not unknown but it was well perceptible and well informed. It was not all of a sudden incident. The incident is a result of a total carelessness of duty entrusted by law and by parent. It was conscious and perceivable. The applicants knew very well that there was a warning hoarding on the beach and more over the local inhabitants also informed them regarding the hazards of going into the sea. The applicants were also made conscious of the fact that Nishant Chauhan did not know swimming. Why they at all allowed him to go into the sea? There omission of not following all these conscious warnings make them liable for offence under the IPC for the offence leveled. It was a part of their duty to take care of the children right from the start of the trip to Goa from Deheradun till its ends back to Deheradun. Since it was expected of them, as a man of ordinary prudence would have expected that an incident of such a type can take place yet they eschewed there responsibility to take care and that omission is what is criminality on their part. I am, in my this view, is well supported by the judgment in Lister and others v Hesley Hall Ltd. [2001] 2 All ER 769.In that judgement Lord Steyn, showing his allegiance to the legal principles, quoted with approval a text from the book  Salmond on Torts in the following terms :-

"a master ...is liable even for acts which he has not authorised , provided they are so connected with the acts which he has autorised that they may rightly be regarded as modes -although improper modes-of doing them".      

In cases of such a nature as the present one, the law can not be made to stand static. The law is meant to serve maximum good to the maximum number and hence "a preoccupation with a conceptualistic reasoning may lead to the absurd conclusions..............Ideas divorced from reality have never held much attraction for the judges steeped in the tradition that their task is to deliver principled but practical justice." Any judgement which does not foster the needs of  the society is not law. In cases of negligence an over restricted view, hardly in tune with the needs of the society, will cause more harm than delivering justice.   In such cases the better approach is to  find out relative closeness with the nature of job and the  duty casted upon the offender vis-a-vis with the situation under which then incident had happened and  the infringement of the duty by the offender which had taken place. I am in full agreement with the following observations of Lord Clyde's in the aforesaid case Lister and Others (Supra)-

" A servant is not a mere machine continuously directed by his master's hand , but is a person of independent volition and action, and the employer, when he delegates to him some duty which he himself is under obligation to  discharge, must take the risk of the servant's action being misdirected when he is , for the time, allowed to be beyond his mater's control. It remains necessary to the master's responsibility that the servant's act be one done within the sphere of his service or the scope of his employment, but it may have this character although it consist in doing some thing which is very opposite of what the servant has been intended or ordered to do, and which he does for his own private ends. An honest master does not employ or authorize his servant to commit crime of dishonesty towards third parties: but nevertheless he may incur liability for a crime of dishonesty committed by the servant if it was committed by him within the field of activities which the employment assigned to him and that although the crime was committed by the servant solely in pursuance of his own private advantage."

My view is also based upon the judgement of the apex court reported in 2001 SCC(Cr) 1426 M.S.Grewal   versus  Deep Chand Sood And Others. In Para 15 and 16 the Supreme Court  has observed thus :-

"15.While the parent owes his child a duty of care in relation to the child's physical security, a teacher in a school is expected to show such care towards a child under his charge as would be exercised by a reasonably careful parent. In this context, reference may be made to a decision of Tucker, J, in Ricketts v. Erith Borough Council as also the decision of the Court of Appeal in Prince vs. Gregory.

16.Duty of care varies from situation to situation--whereas it would be the duty of the teacher to supervise the children in the playground but the supervision, as is in the playfield. While it is true that if the students are taken to another school building for participation in certain games. It is sufficient exercise of diligence to know that the premises are otherwise safe and secure but undoubtedly if the students are taken out to a playground near a river for fun and a swim, the degree of care required stands at a much higher degree and no deviation therefrom can be had on any count whatsoever. Mere satisfaction that the river is otherwise safe for a swim by reason of popular sayings will not be a sufficient compliance. As a matter of fact the degree of care required to be taken specially against the minor children, stands at a much higher level than adults: children need much stricter care."

In the aforesaid case the management was held responsible for offence also and was convicted by the court of law.

  Thus, summarizing the first contention canvassed at the bar by the counsel for the applicants, the applicants were saddled with responsibility to protect young and vulnerable from risk or harm of any kind, which they, because of their knowledgeable misdirected omissions, failed to perform. Consequently, in my view, the contention of the learned senior counsel for the applicants that no criminal offence is made out against the applicants and they are liable only civilly does not hold good and is hereby rejected. To me,  the law is mature enough to summon  them  as being accused for the  offences for which they have been charge sheeted without indulging into any kind of sophistry.  

Now coming to the second submission advanced on behalf of applicants that the Muzzaffar Nagar court does not have the jurisdiction is to be dealt with. The said submission is based on often-canvassed submission of ''Cause of Action' point. Under Code of civil Procedure it is found under section 20 C.P.C. but in Cr. P. C. it is dealt with under chapter XIII titled as ''JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS'. Section 178 read with section 183 are relevant for our purpose. (I am eschewing rest of the sections of the said chapter for the sake of brevity). Under sub section (c ) and (d) of section 178 Cr.P.C. if, the offence is a continuing one and continues to be committed in more local areas than one then it can be inquired into or tried by any of the courts of any  such local area and if, it has been committed in several parts then by any court under whose jurisdiction any part of offence had taken place. Section 183 provides that if the offence is committed in the course of performing a journey or voyage, the offence may be inquired into or tried by a court into whose local jurisdiction that person or thing passed in the course of that journey or voyage. Thus the two section read together lays down that the continuing offence can be tried by any court under whose jurisdiction any part of offence has been committed during it's continuance and if the same has been committed during a journey or voyage then by any court having jurisdiction during the course of that journey or voyage. The apex Court in case of Navin Chand .N. Majithia versus State of Maharastra and others has dealt with this aspect of the matter exhaustively. It has been held that:        

"This Court further held that Section 178 of the Criminal Procedure Code suggests that if there is uncertainly as to where, among different localities, the offence would have been committed, the trial can be held in a Court having jurisdiction over any of those localities. The provision has further widened the scope by stating that in case where the offence was committed partly in one local area and partly in another local area, the Court in either of the localities can exercise jurisdiction to try the case. Further again, Section 179 of the Code stretches its scope to a still wider horizon."

In this case it is perceptable that the tour started from Dehradun. The anxiety of the parent started from there. They had gone to Dehradun to request the management not to take their child on tour. It was at Dehradun when the applicant promised to take care of  the safety of the child. A sum of Rs.  85,000/- was deposited in the school at Dehradun. It was there that the trust was reposed in the management. Consequently it can be said safely that at Dehradun a part of the incident did take place. The prosecution case further is that the same part was repeated in district Muzaffarnagar, when the tour was on its way to Goa and was stopped at Muzaffar Nagar by the respondent no. 4 and breakfast packets were given to the children. There also respondent no. 4 along with his wife expressed their anxiety to the applicants who had assured them of the safety of the child and to take his care. It cannot be said by any stretch of imagination that the said assurance on the anxiety of the parent and their request not to take their child on tour to Goa is of no consequence and is a waste piece of allegation. The conducted tour was a complete whole. There was a chain of continuity to take care and that of anxiety and false assurance to take care, which has run through the whole episode starting from Dehradun to Goa. At no point of time the Management was divested of its responsibility to take care of the child Nishant Chauhan. They were continuously under obligation and legal duty for the same. Whatever happened in the sea at Goa was a part of the said continuous chain of care and custody. What happened at Muzaffarnagar and the conversation, which has taken place there and for which there is ample evidence on record certainly makes a part of cause of action at Muzaffarnagar. It will be travesty of justice, if the aggrieved parent is allowed to run thousand of miles to seek justice for the death of their child when the offence was committed on a tour well covered u/s 178 as well as 183 Cr. P.C. The tour started from Dehradun and ended only after the return of the boys at Dehradun. There was no snapping of link of continuity during this journey.  It cannot be said that the journey has ended at Goa. In this view of the matter there leaves no room for doubt that the offence was committed on the journey. A fractional stay of the tour at Muzaffar Nagar will not break the link of journey. It is also to be noted that the offence was continuing one well covered u/s 178 ( c) Cr. P.C. It is to be noted that the care of the vulnerable was entrusted at Muzaffarnagar also. The applicants failed to discharge the said trust and responsibility with which they were authorized by the informant. They are certainly responsible for the breach of the care and trust reposed in them by the informant. Thus a part of incident did take place at Muzaffarnagar, because the request of the informant for leaving his child behind was refused there as well and the chain of continuity never snapped. By this court at this stage the case is to be considered from the point of view of the informant and the prosecution. The power u/s 482 Cr. P.C. is circumscribed by the allegation leveled by the prosecution and the evidence brought fourth for the said purpose in the case diary. In the aforesaid case of Navinchandra N. Majithia (supra), it has been held by the apex court in para 40 as follows:-

In the case of Satvinder Kaur v. State (Govt. of NCT of Delhi) and Another [JT 1999 (8) SC 25= (1999) 8 SCC 728], the question of quashing of FIR on the ground of lack of territorial jurisdiction of the police to investigate the offence came up for consideration. Construing the provision of Sections 154, 162, 177 and 178 of the Criminal Procedure code, this Court held that if Investigating Officer finds that the crime was not committed within his territorial jurisdiction, he can forward the FIR to the police station concerned, but this would not mean that in a case which requires investigation, the Police Officer can refuse to record the FIR and/ or investigate it. Disapproving the order of the Delhi High Court for quashing the FIR at the investigation stage on the ground of lack of territorial jurisdiction this Court observed:

Further, the legal position is well-settled that if an offence is disclosed the Court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed. If the FIR, prima facie, discloses the commission of an offence, the Court does not normally stop the investigation, for , to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. It is also settled by a long course of decisions of this Court that for the purpose of exercising its power under Section 482 Cr. P.C. to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se; it has no jurisdiction to examine the correctness or otherwise of the allegations."

In this view of the matter, the second contention of the learned senior counsel for the applicants that all the offences are independent and consequently Magistrate at Muzaffarnagar had no jurisdiction to try the accused cannot be accepted and is rejected.

Learned senior counsel for the applicants has lastly argued that the offence u/s 298, 418 are not made out. The said submission should not vex the mind at all as what offence is made out is to be seen by the trial court at the stage of framing of the charges. Once some offence is disclosed by the charge sheet, which is triable, the prosecution cannot be quashed on the ground that the other offences mentioned in the charge sheet are not made out from the allegations leveled. Suffice it to say that once it cannot be said that no offence is made out there leaves no scope for this court to exercise power u/s 482 Cr. P.C. to quash the prosecution. It has been held by the apex court in the case of Chaudhary Bhajan Lal v. State of Hariyana AIR 1992 SC page 604 that the power u/s 482 Cr. P.C. has to be exercise very sparingly with circumspection to farther the cause of justice. It is the whole some power, which has been given to the High Court to be exercised rarely and only in appropriate cases where no offence is made out at all or where there is no legal evidence against the accused or where there is a specific bar against the prosecution of the offender under any law or where the prosecution is tainted with malafide and is for harassment. None of these grounds, as are mentioned aforesaid, are present in the instant case. There is no reason to hold that no offence is made out against the applicants and their prosecution is false or malafide. There is yet another difficulty in accepting the submission advanced by the learned senior counsel for the applicant and that is through section 462 Cr. P.C. The said section provides that no finding, sentence or order of any criminal court shall be set aside simply on the ground that inquiry trial or other proceedings in the course of which it was arrived at or passed took place in a wrong sessions division, district, sub division or local area unless it appears that such an error has in fact occasioned failure of justice. Thus in view of the aforesaid provisions in grafted in the code of Criminal Procedure the order of taking the cognizance cannot be quashed on the ground of lack of territorial jurisdiction if any, which in fact is not, in the present case.

Considering all the contentions raised by the learned counsel for the applicant for accepting his prayer for quashing the charge sheet and the case pending against the applicants in the court at Muzaffarnagar, I do not find any merit in those submissions, which are liable to be rejected and I doth order so.

This application lacks merit and is dismissed. The stay order granted by me on 17.2.2006 is hereby vacated.

Let a copy of this order be sent to the trial court within a period of one week from today for further action at its ends.

19.5.2006

SKS/1580/06


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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