Hon'ble Prabhat Chandra Tripathi,J.
(Delivered by Hon'ble Prabhat Chandra Tripathi,J.) Heard Sri B.B. Paul, learned counsel for the petitioners, Sri S.P. Giri, learned counsel for the respondent no.7 and Sri Gaurav Pratap Singh, learned A.G.A. for the State and perused the record.
The petitioners have made following prayer:
"(i) To issue a writ, order or direction in the nature of certiorari, calling for record of the case, quashing proceeding of Case Crime No.0194 of 2016, under Sections 109, 304 and 336 I.P.C., Police Station Aurai, District Bhadohi including first information report of respondents 2nd set dated 26.7.2016 (Annexure-1).
(ii) To issue a writ, order or direction in the nature of mandamus commanding the respondents not to arrest the petitioners in Case Crime No.0194 of 2016, under Sections 109, 304 and 336 I.P.C., Police Station Aurai, District Bhadohi without considering necessary of their arrest.
(iii) To issue ad interim mandamus, staying arrest of petitioner in Case Crime No.0194 of 2016, under Sections 109, 304 and 336 I.P.C., Police Station Aurai, District Bhadohi arising out of first information report of respondents 2nd set dated 26.7.2016 (Annexure-1).
(iv) To issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper in the peculiar facts and circumstances of the case.
(v) To award cost of petition to the petitioners."
Learned counsel for the petitioners submitted that running of an educational institution is not a crime and no offence has been committed by the petitioners. It has also been submitted that the law should not be emotional and much emphasis was also laid upon the case of Joginder Kumar v. State of U.P. reported in 1994 SCC (4) 260.
The genesis of this horrific incident is narrated in the F.I.R. registered in case crime no.0194 of 2016, under Sections 109, 304, 336 I.P.C., P.S. Aurai, District Bhadohi against Rashid Khan, driver of a Magic Van bearing registration no.U.P.T4566.
Informant, Kamla Shankar Mishra s/o late Shivraj Mishra, r/o Dinanathpur, Kaieermau, Aurai, District Bhadohi informed on date 25.7.2016 at 10:15 A.M. that on date 25.7.2016 at about 7:15 A.M. a Magic Van bearing registration no.U.P. 66 T 4566 which was driven by it's driver, Rashid Khan, was carrying small children from village Dinanathpur to 'Tender Hearts English School', Ghosia. At the same time, an 'Up' passenger train no.55122 was going from Varanasi to Allahabad. Viewing the approaching train persons present near the railway track and the children sitting inside the vehicle prohibited the driver not to cross the railway line since the train was nearby. At this, driver became angry and quipped that no sooner than the train would arrive he would cross the railway line and he would show this that day that how the Magic Van carrying the small children happened to cross the railway line and he started crossing the railway line by driving the Magic Van in a high speed. At that time, passenger train arrived and rear portion of the Magic Van was hit by the train. Due to forceful hitting the Magic Van turned turtle to the lower slope on the northern side of the slope and of all the children sitting inside the vehicle became injured and Abhishek, Aniket and Pradyumn died on the spot. Km. Shakshi, Arpit, Naitik, Km. Shweta, Shreyansh, Ayush, Abhichal, Praphulla, Anjali, Akanksha, Aryan Dubey, Pratyush and Ansh were sent to different hospitals for treatment in a precarious injured condition and during treatment Km. Shweta and Km. Sakshi died. Rest of the injured were being treated in the hospital and driver is also treated at Varanasi. This daring act of the driver was being informed to register the case.
Now the F.I.R. in case crime no.0194 of 2016, under Sections 304, 337, 338 I.P.C., P.S. Aurai, District Bhadohi is narrated as below:
On date 25.7.2016 informant, Aditya Narayan Ojha r/o Meghipur, Kaieermau, Aurai, District Bhadohi has given a written information on date 25.7.2016 to the Superintendent of Police, Bhadohi which was registered on date 26.7.2016 at P.S. Aurai, District Bhadohi at 20:45 hours. This F.I.R. describes that Manager, Smt. Kokila Baranwal, Principal, S.P. Vishwakarma and real owner Surendra Baranwal of 'Tender Hearts English School', Ghosia compelled students for transportation to the school for their commercial profit. They accommodated more students than the capacity of 'Magic' vehicle of the school. Without enquiring about the skill, social and criminal antecedents of the vehicle's driver they made the driver to drive the vehicle on meagre wages. The informant and on narration of the boys (Ajay Mishra, Kamla Kant Mishra, Jay Shankar Tiwari, Ahswani Kumar Mishra etc.) the complaint was made to the Manager and the Principal in this regard; but no heed was paid. Instead the management created pressure upon the Magic driver to make haste and make several trips. On date 25.7.2016, gross negligence was committed by the Magic driver due to this pressure, wherein collision between the train and the Magic Tata vehicle occurred at Kaieermau (Meghipur) Railway Line Crossing; 08 children died on the spot and 08 children were struggling with their lives in different hospitals. Whole peace and tranquillity had been disturbed due to this incident. The Manager and Principal of 'Tender Hearts English School', Ghosia were fully responsible for that. It has been prayed that strict penal action may be taken.
In para-19 of the writ petition, the names of 08 injured students and the names of 08 deceased students have been mentioned.
It has been vehemently argued by the learned counsel for the petitioners that the petitioner no.2 is the Manufacturer and Exporter of carpets and his two sons are stationed at different places in U.S.A. The petitioner no.1 and the petitioner no.2 are aged about 67 years and 71 years respectively and are suffering from different ailments.
In para-16 of the writ petition, it has been mentioned that for the convenience of the students, the management of the school has deployed 03 new buses besides 05 new vans titled 'Tata Magic' and at the serial no.8 the description of the offending vehicle bearing registration no.U.P. 66 T 4566 has been mentioned.
It is apt to quote:-
"Also In Jennison Vs. Baker 1972 (1) ALL ER 997=(1972) 2OB52, it was pithily stated:
"Law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope. "Increasingly people are believing as observed by Salmond quoted by Diogenes Laertius in "Lines of the philosophers" laws are like spiders webs, if some light or powerless thing falls in to them, it is caught, but bigger one can break through and get away. Jonathan Swift in his "Essay on the Faculties of the Mind" said in similar lines: "laws are like of cob webs, which may catch small flies, but let wasps and hornets break through."
The learned counsel for the petitioners has not brought forth anything cogent or convincing argument to manifest that no cognizable offence is disclosed prima facie on the allegations contained in the F.I.R. or that there was any statutory restriction operating on the police to investigate the case.
Having scanned the allegations contained in the F.I.R. the Court is of the view that the allegations in the F.I.R. do disclose commission of cognizable offence and, therefore, no ground is made out warranting interference by this Court. The prayer for quashing the same is refused.
The petition lacks merit and is accordingly, dismissed.
(Prabhat Chandra Tripathi,J.) (Ramesh Sinha,J.) Order Date :- 3.8.2016 S.Sharma