Rohit Ramchandra Kad vs State Of Maharashtra
2023 Latest Caselaw 9726 Bom

2023:BHC-AS:27576
                                                            5-ABA1455-2023.DOC

                                                                                 Santosh

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CRIMINAL APPELLATE JURISDICTION


                    ANTICIPATORY BAIL APPLICATION NO. 1455 OF 2023

               Rohit Ramchandra Kad                                     ...Applicant
                                   Versus
                    The State of Maharashtra                        ...Respondent

               Mr. Harshad Nimbalkar, a/w Shyam Taori, Satyam
                     Nimbalkar, Omkar Chitale and Abhishek Arote, for the
                     Applicant.
               Mr. S. V. Gavand, APP for the State/Respondent.


                                               CORAM: N. J. JAMADAR, J.

DATED: 15th SEPTEMBER, 2023

ORDER:-

1. Heard the learned Counsel for the applicant and the

learned APP for the State.

2. This is an application for pre-arrest bail in connection

with CR No.417 of 2022 registered with Khalapur Police

Station, District Raigad, for the offences punishable under

Sections 304(II), 286, 337 and 338 read with Section 34 of

Indian Penal Code, 1860 ("the Penal Code") and Section 9B of

the Explosives Act, 1884.

3. Mumbai Railway Vikas Corporation Ltd. (MRVCL) is

laying Panvel - Karjat Rail Line. MRVCL has awarded the

contract to Railcon - SREPL (JV) to execute the said project.

5-ABA1455-2023.DOC

Railcon - SREPL has, in turn, awarded the contract to "Adit

Infra" of which the applicant is a proprietor. In order to lay

the railline it was necessary to have excavation. The

applicant awarded the contract of excavation, which involves

blasting operation as well, to Jai Ambe Drilling, of Ajay

Satyanarayan Ladda, accused No.5. Applicant had appointed

and entrusted the work at site to Pritam Thorat, accused

No.1; Rajendra Khandare, accused No.2 and other co-

accused.

4. On 23rd December, 2022 at about 4.30 pm. blasting was

done at the work site, which was at a distance of about 50

meters from Chowk - Karjat road.

5. The prosecution alleges the said blasting was carried

out by making use of excessive explosives and without

adhering to safety standards. The applicant and other co-

accused did not take adequate safety precautions. The

criminal negligence on the part of the applicant and other co-

accused resulted in stones (flyrock) flying of far areas. Those

stones hit Devkabai Badekar and Sachin Badekar, who were

passing Chowk - Karjat road on a motorcycle. Other persons

also sustained injuries. Properties in the vicinity were also

damaged. Devkabai succumbed to the injuries at the spot.

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Sachin passed away while under treatment at Karjat

Hospital. Keshav Kalekar, the cousin of Sachin lodged the

report leading to registration of CR No.417 of 2022.

6. Apprehending arrest, the applicant approached the

Court of Session. By an order dated 29 th April, 2023, the

learned Additional Sessions judge, Panvel, declined to

exercise the discretion in favour of the applicant, opining,

inter alia, that the offeces were of grave nature and there was

prima facie negligence on the part of the applicant and the

persons who carried out the blasting. Hence, this application.

7. When this application was listed before this Court on

24th May, 2023, the Court was persuaded to grant interim

bail.

8. Mr. Nimbalkar, the learned Counsel for the applicant,

submitted that the offence punishable under Section 304(II)

is not prima facie made out. The accusation against the

applicant singularly lacks element of mens rea for the offence

of culpable homicide not amounting to murder. The

applicant had appointed a contractor to carry out the

blasting. Under the terms of the work order dated 17 th June,

2022, no liability would fall on Adit Infra on account of any

damage due to controlled blasting. It was for the contractor

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to take all the necessary safety precautions. It was

submitted that in the site accident report, submitted by the

competent officer of MRVCL, no negligence was found on the

part of the applicant. It was, inter alia, opined that despite

all precautions having been taken the incident in question

had occurred and it was possible that on account of

unknown geological factor there can be flyrock beyond

design calculation parameters.

9. Mr. Gavand, the learned APP, countered the

submissions of Mr. Nimbalkar. It was urged that criminal

negligence on the part of the applicant is writ large. The fact

that the applicant was not present at the work site when the

blasting was carried out was of no significance. It was

incumbent upon the persons, who carried out the blasting to

take all the safety precautions. The subject road could have

been temporarily closed. Taking the Court through the

situation depicted in the scene of occurrence panchnama

dated 24th December, 2022 Mr. Gavand would urge that in

the totality of the circumstances, the applicant cannot be

permitted to wriggle out of the situation by asserting that he

had appointed a contractor. Hence, the applicant does not

deserve the relief of pre-arrest bail, urged Mr. Gavand.

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10. To being with, the distance between the work site where

the blasting was carried out and the road on which the

flyrock hit the deceased. In the spot panchnama, the

distance is shown to be about 100 meters. Mr. Gavad would

urge that a distance of 100 meters cannot be said to be

adequate while considering the impact which the blasting

may have. It was submitted that the applicant and the

authorities could have temporarily closed the road itself to

ensure the safety of the persons using the said road.

11. The aforesaid submission may carry substance while

determining the aspect of the degree of negligence on the part

of the concerned persons. However, in this proceedings, it

has to be prima facie evaluated as to whether offence

punishable under Section 304(II) is made out. There is

material on record to indicate that MRVCL appointed Railcon

- SREPL (JV) to execute the railways project. Railcon, in turn,

appointed the applicant who, in turn, gave the contract of

blasting to Jay Ambe. In this backdrop, the aspect of

intention or knowledge to cause death deserves to be

considered. Prima facie, such criminal intent or knowledge

cannot be attributed to the applicant as the applicant was

executing the work in discharge of contractual obligation.

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12. A useful reference in this context can be made to a

judgment of the Supreme Court in the case of Shantibhai J.

Vaghela and another vs. State of Gujarat and ors 1, wherein

the ingredients of the offence of culpable homicide not

amounting to murder punishable under Section 304 were

postulated as under:

"24. Section 299 IPC defines culpable homicide as causing of death by doing an act with the intention of causing of death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that by such act death is likely to be caused. Under Section 300 IPC all acts of culpable homicide amount to murder except what is specifically covered by the exceptions to the said Section 300. Section 304 of Indian Penal Code provides for punishment for the offence of culpable homicide not amounting to murder.

25. Commission of the offence of culpable homicide would require some positive act on the part of the accused as distinguished from silence, inaction or a mere lapse. Allegations of not carrying out a prompt search of the missing children; of delay in the lodging of formal complaint with the police and failure to take adequate measures to guard the access from the ashram to the river, which are the principal allegations made in the FIR, cannot make out a case of culpable homicide not amounting to murder punishable under Section 304 IPC. To attract the ingredients of the said offence something more positive than a mere omission, lapse or negligence on the part of the named accused will have to be present. Such statements are conspicuously absent in the FIR filed in the present case."

(emphasis supplied)

13. The Supreme Court has in clear and explicit terms

explained the ingredients of the offence under Section 304 of

the Penal Code. Something more positive than a mere

omission, lapse or negligence on the part of the accused will

1(2012) 13 Supreme Court Cases 231.

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have to be present. Negligence by itself may not furnish the

necessary mens rea.

14. The aforesaid pronouncement was followed by a

Division Bench of this Court in the case of Pavneet Singh

Sethi and ors. vs. The State of Maharashtra and ors. 2,

wherein the ingredients of the offence punishable under

Section 304(II) of the Penal Code were enunciated as under:

"10. Thus, it is clear that commission of the offence, of culpable homicide under Section 304(II) IPC require some positive act on the part of the accused as distinguished from silence, inaction or mere lapses. The allegations of not carrying out the repair of the road cannot, thus, make out a case of culpable homicide not amounting to murder punishable under Section 304(II) IPC. Such statements of positive act are conspicuously absent in the FIR filed in the present case. Conversely, the cause of accident is clearly attributed in the FIR itself to the rash and negligent driving of the truck, in a fast speed."

15. Reverting to the facts of the case, even if the site

accident report submitted by the Deputy Chief Project

Manager - 1, MRVCL adverting to the possibility of accidental

flyrock of despite all precautions, is eschewed from

consideration as self-serving, prima facie, there is no positive

material to bring the acts and conduct of the applicant within

the dragnet of Section 304 of the Penal Code. I find

substance in the submission of Mr. Nimbalkar that prima

22018(3) BCR (Cri) 180.

5-ABA1455-2023.DOC

facie the element of mens rea to cause death appears to be

absent.

16. In any event, the investigation seems to be complete for

all intent and purpose. Charge-sheet has been lodged. The

applicant appears to have roots in society as he has a fixed

place of abode and avocation. Possibility of fleeing away from

justice and tampering with evidence also seems to be remote.

I am, thus, inclined to make order of interim bail absolute.

17. Hence, the following order.

:ORDER:

(i)     Application stands allowed.


(ii)    The order of interim bail is made absolute on the terms

and conditions incorporated therein with the modification

that the applicant shall not leave India without the prior

permission of the jurisdictional Court of Session and the

applicant shall regularly attend the proceedings before the

said Court.

(iii) It is clarified that these prima facie observations are

confined to determine entitlement to pre-arrest bail only.

[N. J. JAMADAR, J.]