Yogesh S/O. Ramniwas Mandhani vs The State Of Maharashtra Thr. ...
2017 Latest Caselaw 7495 Bom

APL  207/17                                                  1                            Judgment

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR.
                CRIMINAL APPLICATION (APL) No. 207/2017
Yogesh s/o Ramniwas Mandhani,
aged about 41 years, Occupation business,
permanent resident of Jalna, presently residing
at Plot no.C-2, MIDC Deoli Growth Centre,
Deoli, District Wardha.                                                                 APPLICANT
                                          .....VERSUS.....
The State of Maharashtra,
Through the police station officer, 
Deoli, District Wardha.                                                              NON-APPLICA
                                                                                                 NT

Shri Anand Jaiswal, Senior Counsel with Shri M.M. Agnihotri, counsel for the applicant.
         Shri A.M. Joshi, Additional Public Prosecutor for the non-applicant.

                                            CORAM :SMT.VASANTI  A  NAIK AND
                                                          M.G. GIRATKAR, JJ.                

DATE : 25 TH SEPTEMBER, 2017.

ORAL JUDGMENT (PER : SMT. VASANTI A NAIK, J.)

The criminal application is ADMITTED and heard finally at

the stage of admission with the consent of the learned counsel for the

parties.

2. By this criminal application, the applicant seeks the quashing

and setting aside of the first information report registered against the

applicant for the offence punishable under Section 304 read with Section

34 of the Penal Code.

3. The applicant is a Chemical Engineer and the Chief Promoter

and Director of Mahalaxmi TMT Private Limited. The company of the

applicant is involved in the business of manufacturing and sale of iron

APL 207/17 2 Judgment

billets and TMT bars. For the manufacturing of iron billets and TMT bars,

three furnaces are provided in the manufacturing unit of the applicant.

On 31.12.2016, one of the employees working in the company of the

applicant while performing his job of maintenance of the furnaces died

after receiving burn injuries. According to the applicant, while

performing his job of maintenance of the furnaces, some sparks emitted

from the furnace crucible and since the employee was wearing a nylon

jacket for protection from cold, he sustained severe burn injuries after the

jacket caught fire. After the employee succumbed to the burn injuries, the

first information report was registered against the applicant. It is alleged

in the first information report registered against the applicant that while

the employee was working on furnace no.1, some drops of molten iron

fell on the body of the employee as a result of which he was admitted in

the Orange City Hospital where he succumbed to burn injuries. It is

further alleged in the first information report that despite the knowledge

that at 1650 degree temperature, iron would melt and a person may

suffer serious injuries or even die if the molten iron falls on the body of a

person, the applicant did not take any care and the death of the employee

was caused due to the rash and negligent act on the part of the applicant.

According to the applicant, since an offence could not have been

registered against the applicant under Section 304 of the Penal Code,

even if the allegations in the first information report are accepted at their

APL 207/17 3 Judgment

face value, in totality, the applicant has sought for the quashing and

setting aside of the first information report.

4. Shri Jaiswal, the learned Senior Counsel appearing for the

applicant, submitted by referring to the provisions of the Penal Code,

specially Section 304 thereof that the said provisions would apply only

when a person commits culpable homicide not amounting to murder. It is

submitted that the provisions of Section 300 of the Code speak of

culpable homicide not amounting to murder only in the matters that are

excepted by the exceptions to the said provision. It is submitted that the

offence of culpable homicide could be committed only when a person acts

with the intention of causing death or with an intention of causing such

bodily injury as is likely to cause death. It is submitted that there is no

allegation in the first information report that the petitioner had caused

the death of the employee with an intention to cause death or with an

intention to cause bodily injury which would result in death. It is

submitted that Section 304 would apply only when a person commits

culpable homicide not amounting to murder and culpable homicide is not

murder if it falls within the exceptions in Section 300. It is submitted that

since the allegations in the first information report do not prima-facie

make out an offence punishable under Section 304 of the Penal Code, the

first information report is liable to be set aside. The learned Senior

APL 207/17 4 Judgment

Counsel relied on the judgments reported in (1992) SCC Criminal 426

(State of Haryana Versus Bhajanlal) and (2005) 1 SCC 122 (Zandu

Pharmaceutical Works Limited Versus Mohd.Sharaful Haque).

5. Shri Joshi, the learned Additional Public Prosecutor appearing

for the respondents, submitted that this is not the first occasion when an

employee working in the company of the petitioner has died due to the

rash and negligent act on the part of the applicant. It is submitted that

before the death of the employee in this case, the applicant was served

with a couple of notices informing him that appropriate steps should be

taken for the safety and welfare of its employees. It is submitted that the

investigation is in progress and if at all, the investigating officer comes to

a conclusion that Section 304 of the Penal Code may not apply and

Section 304-A or any other provision would apply, appropriate provisions

would be mentioned in the charge-sheet.

6. On hearing the learned counsel for the parties and on a

perusal of the allegations in the first information report, it appears that

the offence could not have been registered against the applicant under

Section 304 of the Penal Code. Section 304 of the Penal Code provides

the punishment for culpable homicide not amounting to murder. It is

nobody's case that the applicant had caused the death of the employee by

an act, with an intention to cause his death or with an intention to cause

APL 207/17 5 Judgment

such bodily injury to the employee as is likely to cause his death.

Culpable homicide is defined in Section 299 of the Penal Code. Section

300 of the Penal Code provides that, except in the cases that are excepted

by the exceptions in the said section, culpable homicide would be murder.

Exceptions 1 to 5 speak of the circumstances when culpable homicide

would not amount to murder. On a reading of the provisions of Sections

299 and 300 of the Penal Code, it cannot be said that on the basis of the

allegations made in the first information report registered against the

applicant an offence of culpable homicide not amounting to murder is

prima-facie made out against the applicant. It is only alleged in the first

information report that the applicant is responsible for the death of the

employee as the applicant had not taken appropriate measures to ensure

the safety of the employees. The allegations in the first information

report at the most could show that the act of the applicant could be rash

or negligent and some other offence could have been registered against

the applicant. It is held by the Hon'ble Supreme Court in the case of State

of Haryana Versus Bhajanlal, reported in (1992) SCC Criminal 426 that

after accepting the allegations in the first information report on its face

value, in the entirety, if the offence registered against the accused cannot

be prima-facie made out, it would be necessary for the Court to exercise

the jurisdiction under Article 226 of the Constitution of India or Section

482 of the Code of Criminal Procedure to prevent the abuse of process of

APL 207/17 6 Judgment

Court and/or to secure the ends of justice. It would also be also necessary

to refer to the judgment in the case of Zandu Pharmaceutical Works

Limited Versus Mohd.Sharaful Haque reported in (2005) 1 SCC 122,

wherein the Hon'ble Supreme Court has laid down the circumstances in

which the first information report could be quashed and set aside. In the

instant case, even if we accept the allegations in the first information

report at their face value, an offence of culpable homicide not amounting

to murder cannot be prima-facie made out against the applicant. It would

not be proper in the aforesaid set of facts to accept the submission made

on behalf of the non-applicant that the first information report may not be

quashed and they may be permitted to make further investigation so that

an appropriate charge could be framed against the applicant. The non-

applicant is free to take appropriate action, even after the first

information report is quashed.

7. Hence, for the reasons aforesaid, the criminal application is

allowed. The first information report registered against the applicant for

the offence punishable under Section 304 of the Penal Code is hereby

quashed and set aside.

Order accordingly.

              JUDGE                                          JUDGE

APTE