Calcutta High Court (Appellete Side)
Sri Dipak Kumar Sen & Anr vs The State Of West Bengal & Ors on 22 September, 2023
IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
Justice Bibhas Ranjan De
C.R.R. 353 of 2018
With
CRAN 1 of 2019 (Old No CRAN 2421 of 2019)
Sri Dipak Kumar Sen & Anr.
Vs.
The State of West Bengal & Ors.
For the Petitioners :Mr. Bikash Shaw, Adv.
For the Opposite party no. : Suman Banerjee, Adv.
2 to 9 & 11
For the State :Mr. Binay Kumar Panda, Adv.
Ms. Puspita Saha, Adv.
Heard on : 20.07.2023,10.08.2023,
31.08.2023, 15.09.2023
Judgment on :22nd September, 2023
2
Bibhas Ranjan De, J.
1. Order dated 6th July, 2017 passed by Ld. Additional Chief
Judicial Magistrate, Chandernagar, Hooghly in connection
with Chandarnagar Police Station Case no. 75 of 2017 dated
9th May, 2017 under Section 304A of the Indian Penal Code, is
challenged by this revisional application.
2. Ld. Additional Chief Judicial Magistrate, by his order dated
06.07.2017 recorded his observation as quoted below:-
"........When death was caused by an act with the intention of
causing death or with the knowledge that by such act he was
likely to cause death, section 304 I.P.C. will be attracted.
Contd. order dated 06.07.2017.
In Shankar Narayan Vs. State AIR 2004 SC1966 it has been
held that section 304A I.P.C applies to cases where death is
caused by doing rash or negligent act but it is not applicable
where the act is done with intention or knowledge to cause
death....."
3. The case was initiated on a written complaint lodged by one
Dipak Kumar Sen (father of the deceased) addressed to the
officer in charge Chandannagar Police Station, Hooghly on
09.05.2017 alleging inter alia that on that day at about 7.00
a.m. his son Ayan Sen since deceased (aged about 18 years)
had been to Chandannagar Swim Centre, Barasat, GT Road,
Chandannar, Hooghly for learning swimming activities. At
about 8.00 a.m. complainant came to know that his son got
drowned in the swimming pool and was hospitalized. It was
further alleged that his son had primary knowledge of
swimming but such incident happened due to poor
infrastructure.
4. On receipt of that written complaint Chandannagar Police
Station Case No. 75 of 2017 dated 9th May 2017 under Section
304 A was registered.
5. During investigation, Investigating Officer made a prayer
before the court on 20th June, 2017 stating inter alia as
follows:-
".....In course of investigation it is revealed that the said Swim
Center has got no infrastructure of a proper swimming center.
Being the trainer and the authority it is obvious that they
must have got knowledge that without proper infrastructure,
safety and security measures the said swimming pool is in
danger to the life of trainees....."
6. Ld. advocate, Mr. Bikash Shaw, on behalf of the petitioner has
submitted that the investigating officer collected the evidence
and made a prayer suggesting that accused had knowledge
and intention to cause death of son of the complainant and he
has further submitted that swimming centre did not comply
with any of the parameters viz water quality, competent swim
coach, life-buoy, life jackets, oxygen cylinder etc. Thereby, Mr.
Shaw has submitted that there was enough knowledge of the
authority of the swimming center that such poor
infrastructure might cause death of any of the trainees in the
swimming pool. In support of his contention he referred to the
prayer of the Investigating Officer. Before parting, Mr. Shaw
has submitted that none of the trainers present over there
could rescue and save life of son of the complainant.
7. Ld. Advocate, appearing on behalf of the opposite parties relied
on the evidences collected by the Investigating Officer in
course of investigation.
8. The Hon'ble Apex Court in dealing with cases of similar nature
has already through a catena of decisions further
authenticated the settled principle of law that though the term
"negligence" has not been defined in the Code, it may be stated
that negligence is the omission to do something which a
reasonable man, guided upon those considerations which
ordinarily regulate the conduct of human affairs would do, or
doing something which a reasonable and prudent man would
not do.
9. On careful perusal of the case diary particularly the statement
of witnesses recorded under Section 161 of Code of Criminal
Procedure (for short CrPC) presence of intention or knowledge
to cause death cannot be inferred at such prima facie stage of
the proceeding.
10. Culpable homicide not amounting to murder deals with
knowledge or criminal intention. Here in this case, the
evidence collected so far does not indicate any ingredients of
offence under Section 304 of the Indian Penal Code and that
cannot be ascertained without evidence during trial albeit
there was gross negligence on the part of the swimming pool
authority and trainers also. Moreover, in case of any
ingredients under Section 304 of IPC is subsequently revealed
from the evidence during trial, there is scope of addition/
alteration of charge invoking Section 216 of the CrPC.
11. In the aforesaid view of the matter, I find no reason to
interfere with the order impugned exercising jurisdiction
within the meaning of Section 482 of the CrPC.
12. The revision application being no. 353 of 2018 stands
dismissed.
13. Interim order, if there be any, stands vacated and all
interim application, if pending, stand disposed of.
14. Case diary be returned.
15. All parties to this revisional application shall act on the
server copy of this order downloaded from the official website
of this Court.
16. Urgent Photostat certified copy of this order, if applied
for, be supplied to the parties upon compliance with all
requisite formalities.
[BIBHAS RANJAN DE, J.]
