Bombay High Court
Rahul Shyamrao Thaware vs The State Of Maharashtra, Thr. ... on 26 August, 2021
Bench: V.M. Deshpande, Amit B. Borkar
1 Cri.APL No.487.21-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO. 487 OF 2021
Dr. Rahul Shyamrao Thaware,
Aged about 36 years, Occ. Doctor,
R/o. Plot No.86, Wathoda Layout,
Shrikrishna Nagar, Hanuman Nagar,
Nagpur - 440009. ......APPLICANT
... VERSUS ...
1. The State of Maharashtra,
Through Police Station Wadi,
Wadi, Nagpur.
2. Shri Praveen S/o. Ramdas Mahant,
Aged about 37 years, Occ. - Nil,
R/o. Sneh Nagar, Mouda, Wadi,
Nagpur. ......NON-APPLICANTS
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Shri Shashibhushan Wahane, Advocate for the Applicant.
Shri S. M. Ghodeswar, Additional Public Prosecutor for the
Non-applicant No.1.
Shri T. S. Kene, Advocate for the Non-applicant No.2.
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CORAM : V. M. DESHPANDE AND
AMIT B. BORKAR, JJ.
DATE : 26.08.2021.
ORAL JUDGMENT : (PER AMIT B. BORKAR, J.)
1. Heard.
2. Rule. Rule is made returnable forthwith.
3. By this application under Section 482 of the Code of
Criminal Procedure, the applicant is challenging registration of the
First Information Report No.127/2021 dated 12.04.2021
registered with the non-applicant No.1 - Police Station for the
offence punishable under Section 304 read with Section 34 of the
Indian Penal Code.
4. The First Information Report came to be registered
against the applicant with the accusations that due to fire broke
out in the hospital owned by the applicant on 09.04.2021, four
individuals lost their life. It is alleged that the applicant breached
fire safety. According to the report, the Hospital of which the
applicant is the director did not take proper care and did not make
proper arrangement and it is because of the negligence of the
Hospital, fire was caused, resulting into death of patients.
5. The applicant has therefore, challenged registration of
the First Information Report by way of filing the present
application. This Court on 22.04.2021 issued notice to the
non-applicants. The non-applicant No.1 has filed reply stating
that after the investigation carried out by the Investigating Agency,
the cause of death of the patient is suffocation following
inhalation of smoke. It is stated that Investigating Agency has
carried out the investigation and it is due to clear lapse and
negligence on the part of the Hospital - Authority in not equipping
the sufficient electrical devices as per requirement of electric load
in the Hospital premises, the fire broke out. It is stated that the
fire broke out mainly due to negligence of the applicant.
6. The non-applicant No.2 has also filed his reply stating
that from the investigation and the allegations in the First
Information Report, the ingredients of the offence under Section
304 of the Indian Penal Code are made out.
7. We have carefully considered the allegations in the First
Information Report along with the reply filed by the respondents.
We have carefully scutinised the provisions of Section 304 and
Section 304-A of the Indian Penal Code. In our opinion there is
distinction between Section 304 and 304-A of the Indian Penal
Code. Section 304-A of the Indian Penal Code deals with
homicidal death by rash or negligent act. Section 304 of the
Indian Penal Code applies to the cases where the death has been
caused without intention or knowledge. Section 304 applies to
cases where the death is caused by doing a rash or negligent act,
which does not amount to culpable homicide not amounting to
murder within the meaning of Section 299 or culpable homicide
amounting to murder under Section 300 of the Indian Penal Code.
In other words, Section 304-A excludes all the ingredients of
Section 299 as also Section 300. In our opinion, if there is
intention or knowledge as "motivating force" of the act
complained of, Section 304-A will have to make room for graver
and more serious charges of culpable homicide not amounting to
murder. Per contra, the words "not amounting to culpable
homicide" in Section 304-A, are significant and clearly convey that
Section seeks to embrace those cases where there is neither
intention to cause death nor that the act done will in all
probability result into death. In our opinion, Section 304-A will
apply to such acts, which are rash or negligent and are directly
cause of death of another person.
8. Having considered the allegations in the First
Information Report along with replies filed by both the non-
applicants, we are of the opinion that the Investigating Agency
was not justified in prosecuting the applicant for offence under
Section 304 of the Indian Penal Code. In our opinion, the
allegations and the reply filed by the non-applicant No.1, prima
facie, make the applicant liable for the investigation for offence
under Section 304-A of the Indian Penal Code. We are therefore,
of the opinion that taking into consideration the allegations
against the applicant and the reply filed by the non-applicant
No.1, the applicant needs to be investigated for offence under
Section 304-A of the Indian Penal Code and not under Section 304
of the Indian Penal Code.
9. For the above reasons, we pass following order :
i. The non-applicant No.1 shall carry out the investigation
against the applicant for offence under Section 304-A of the
Indian Penal Code according to law against the applicant for First
Information Report No.127/2021 dated 12.04.2021 registered
with the non-applicant No.1 - Police Station and shall not carry
out investigation for offence under Section 304 of the Indian Penal
Code.
10. The application is disposed of in the above terms.
11. Rule is made absolute in the above terms. Pending
application(s), if any, stand(s) disposed of.
JUDGE JUDGE
RGurnule
