CRMP/489/2010 of CHIEF EXECUTIVE OFFICER Vs STATE OF CHHATTISGARH on 16 December 2011

XNTHE HIGH COURT OF .IUBICATURE AT BILASPUR.

PETITION UNDER SECTION 4g2 OF THE CODE QF^CRIMINALPROCEDURE. 1973 AGAINST THEORDER DATED 23.07.2010rDIRECTINGTHEPETITIONERCEOBALCOTO APPEAR INPERSONANDSUBMITINWRITINGABOUTHISRESPONSIBILITYREGARDINGAUTHORISEDCHIMNEYCONSTRUCTIONRELATEDDOCUMENTSON31.07.2010.(/"PASSEDBYLEARNED2NDADDITIONA1-SESSIQNSJUDGEfFTCLKORBA, PRESIDED OVER BY SHRI M.D.' JAGDALLA INS.T N0.16/10 ^

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HIGH COURT OF CHHATTISGARH : BiLASPUR

Singie Bench: Hon'bie Shri Manindra Mohan Shrivastava, J, Cr.M.P. No.489/2010

PETmONERS

Chief Executive Officer, BALCO, Korba

Versus

RESPONDENTState of Chhattisaarh

PETITiON UNDER SECTION 482 OF THE CODE OF CRihflliNAL PROCEDURE

Present: -Shri Surendra Singh, Senior Counsei aiong with Shri AbhishekSlnha, counsel for the petitloner.

Shri Rakesh Jha, Deouty Government Advocate for the Siate.

(Passed[on][ ...,w....][ December,][ 2011)]

This petition under Section 482 of the Code of Criminal Procedure,1973 (hereinafter referred to as 'the Code') has been fiied by the petitlonerpraying for quashing the order dated 23/07/10 by which^the fearnedSecondAdditionalSessionsJudgehasissuedsummons,directingappearance of the petitioner to consider the role and responsibiiity of thepetitioner in connection with ihe incident which has ied to registration ofoffence and submission of charge sheet before the Court.,^-

2. The facts briefly stated are that on 23/09/09, a chimney, underconstruciion coilapsed resulting in death or number of iabourers as aisodestruction of property. A crime under Crime No.377/09 was registered byBaico Nagar Poiice Station, alleging commlssion of offence under Seciion :i.-.l'.Z,-i5i'*'

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304/34 of the iPC against the officers and empioyees or the BharatAiuminum Company Ltd. (BALCO) and its contractors - GDCL.

3. Finding prima racie case against some of the officers of BALCO,offences were registered and they were arresfed aiso. After investigation,charge sheet was fiied in the Court aiieging commission of orfence asaforesaid against number of accused persons and the case was committedto the Sessions Court for trial by the Magistrafe. The poiice, iater on, fileea supplementary charge sheei on 8/4/2010 in which, the petitioner, who isthe Chief Executive Officer of BALCO has been sited as witness and hisstatement under Section 161 of the Code has also been recorded. Whenthe case was iisted before the Second Additional Sessions Judge, Korba,on 23/07/10, the Court has passed an order of issuance of summons to thepetitioner to appear personaliy and submit his written reply with regard tohis roie in the incident and documents reiating io construction of chimney.It is this part of the order, which is under chalienge in this petltion,offences were registered and they were arresfed aiso. After investigation,charge sheet was fiied in the Court aiieging commission of orfence asaforesaid against number of accused persons and the case was committedto the Sessions Court for trial by the Magistrafe. The poiice, iater on, fileea supplementary charge sheei on 8/4/2010 in which, the petitioner, who isthe Chief Executive Officer of BALCO has been sited as witness and hisstatement under Section 161 of the Code has also been recorded. Whenthe case was iisted before the Second Additional Sessions Judge, Korba,on 23/07/10, the Court has passed an order of issuance of summons to thepetitioner to appear personaliy and submit his written reply with regard tohis roie in the incident and documents reiating io construction of chimney.It is this part of the order, which is under chalienge in this petltion,

4. Learnedseniorcounselfor thepetitionersubmittedthattheimpugned order directing the petitioner, who is a cited witness of the case,to appear personaiiy and submit his reply with regard to his responsibiiityin connection with the incident and produce documents relating to theconstruction of chimney, is iiiegal and in excess of jurisdiction. it has beencontended that the petiiioner is neither an accused sent up by the policeaiong with the charge sheet nor the Court has taken cognizance of theoffence against him in any of the proceedings or any other order passed inimpugned order directing the petitioner, who is a cited witness of the case,to appear personaiiy and submit his reply with regard to his responsibiiityin connection with the incident and produce documents relating to theconstruction of chimney, is iiiegal and in excess of jurisdiction. it has beencontended that the petiiioner is neither an accused sent up by the policeaiong with the charge sheet nor the Court has taken cognizance of theoffence against him in any of the proceedings or any other order passed in .J!

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the proceedings.Further submission is that the petitioner could not besummoned at this stage to submit his repiy in writlng because untess ihecharges are framed, the Court could not direct a witness to appear in theCourt for giving evidence.Further contention is that even if the Courtintended to examine the role of the petitioner and coiiect evidence inconnection with the incident; that could also be done oniy after framing ofchargesandwhiieexaminingthepetitionerasawitnessof theIn the submission of learned senior counsel, is not aprosecution. presentcase where provisions of Sectlon 319 of the Code would be attractedbecause no evidence has been collected during trial.

5. On the other hand, iearned State counsei submits that the iearnedSessions Judge has ample jurisdiction to call a witness to give evidencebefore the Court in exercise of under Section 31 1 of the Code. He powerssubmits that such power could be exercised at any stage of enquiry, triai orother proceedings under the Code. Therefore, ihe petifioner couid besummoned straightway to submit in writing, his responsibility in connectionwith the incident of coiiapse of chimney and also produce, documentsrelating to construction of the chimney.Further submission is that the of ihe Court is also traceable to the conialned in Secttonpower provisions319oftheCode.

6. A perusal of the impugned order reveais that though the case wasiisted for reply of apptication under Section 91 or CrPC and argumentsthereon, the Court, upon perusai of the records and considering that three engineers have been made accused and for that reason, it has becomenecessary to examine the responsibiiity of the peiitioner in connection withthe incident, suo motu, issued summons to the petitioner to appearpersonally and submit reply with regard to his responsibility and producedocuments relating to construction of chimney.

it could not be disputed before the Court that so far, no chargeshave been framed against the accused in the case. it is aiso not in disputethat the petitioner has been cited as witness by the prosecution andstatements under Section 161 ofthe Code have been recorded.

7. Present is not a case where cognizance of the offence has aisobeen taken against the petitioner.it is also not a case where by way ofsupplementary charge sheet, the petitioner has been sent up as anaccused by the police under the same crime numoer and in connectionwith the offence aiieged in the charge sheet before the Court.In such asituation, when the petitioner is not an accused but oniy ciied as witness ofthe prosecution, summoning of the petitioner to record his statement orsubmission in writing in connection with his own role and responsibility inconnection wiih the incident, to say the least, is not referabie tp any of the conferred on the Court under the statutorv scheme or the Code.powers

8. it being an admitted position that no charges so far have beenframed aoainst the accused the under Section 311 of the persons, powerCode couid not be exercised by the Court at this stage because the objectand of the conferred under Section 311 of the Code is to purpose powers invest the Court with ihe power to summon any person as a witness or toexamine any person in attendance, though not summoned as a witness, orrecali or re-examine any person already examined. it also castes duty onthe Court to summon and examine or recail and re-examine any suchperson if his evidence appears to it to be essentia! to the just decision ofthe case. That being the scope and object of the provisions of iaw, callingthe petitioner to give evidence at this stage when even charges have notbeen framed, is wholly unwarranted, apart from being without jurisdiction.An occasion to examine a witness would arise oniy after framing ofcnarges and not at this early stage when charges have not been framed.

9. Though an attempt was made by iearned State eounsel to trace thepower exercised by the Court below by refemng to provisions contained inSection 319 of the Code, i have no hesitatlon in hoiding that in the presentcircumstances, Section 319 CrPC is nof at ail attracted as heid by theSupreme Court in the case of Lok Ramv.N1(2006) 10 SCC 182, wherein it has been held that the power to implead a[as][ accused][ could][ be][ exercised,][ ifthe][ Court][ is][ satisfied.at][ any][ stage]personor the proceedings on the evidence adduced that the persons who havenot beenarrayedas accused should face the triai.Evidently,aneventuaiity to exercise such power wouid arise only when during course offrial, evidence comes necessitating impieadment of a person as accused.

10. Learned State counset could not refer to any other provisions towhich the power and jurisdiction to summon a witness even before framin.a.

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of charges and commencement of triai couid be exercised by the learnedSessions Judge.The order therefore appears to be clearly iiiegal andwithout jurisdiction and it has become imperative for this Court to exercise under Section 482 of the Code.powers

11. Accordingly, the impugned order dated 23/7/2010 is held iilegal andset aside. The petition is accordingiy allowed.

Sd/- ShrivastavaManindra MohanJudge