Imtiaz Yusufbhai Shaikh vs State Of Gujarat
2023 Latest Caselaw 5772 Guj

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R/CR.MA/14919/2015                                 CAV JUDGMENT DATED: 08/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL MISC.APPLICATION NO. 14919 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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1 Whether Reporters of Local Papers may be allowed YES to see the judgment ?

2 To be referred to the Reporter or not ? YES

3 Whether their Lordships wish to see the fair copy NO of the judgment ?

4 Whether this case involves a substantial question NO of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== IMTIAZ YUSUFBHAI SHAIKH & 3 other(s) Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance:

MR DIPAK R DAVE(1232) for the Applicant(s) No. 1,2,3,4 DHAVAL A PARMAR(7780) for the Respondent(s) No. 2 HCLS COMMITTEE(4998) for the Respondent(s) No. 2 MR RONAK RAVAL, ADDL. PUBLIC PROSECUTOR for the Respondent(s)

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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 08/08/2023

CAV JUDGMENT

1. This petition is filed for quashing and setting aside the FIR being I - C.R. No.15 of 2015 registered with Bilkha Police Station

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for the offence punishable u/s 304 of the IPC.

2. The petitioners under section 482 of the Code of Criminal Procedure, 1973 (in short "the Code") seeks following reliefs:-

"(A) This Hon'ble Court may be pleased to quash and set aside FIR being I - C.R. No.15 of 2015 registered with Bilkha Police Station for the offence punishable u/s 304 of the IPC and the proceedings arising out from the said complaint.

(B) Pending the admission, hearing and final disposal of this application, this Hon'ble Court may be pleased to stay the further proceedings arising out of the complaint being FIR being I - C.R. No.15 of 2015 registered with Bilkha Police Station for the offence punishable u/s 304 of the IPC."

3. The facts giving rise to present petition succinctly stated that deceased Gandubhai Randhhodbhai was sitting on the agriculture implement attached with Massey Ferguson tractor, which was ridden by complainant Valjibhai Mavjibhai Dodariya. The complainant along with Vinubhai Babubhai Solanki was ridding this tractor into the agriculture field belonging to Gopalanand Bapu. This agriculture field was situated on the bank of reservoir of Ozat river. All of them were ploughing the agriculture field by riding tractor, attached with implement. The 11 kv feeder electric line was passing from north to south across the agriculture field. While they were ploughing the field by riding the tractor, deceased Gandubhai was standing on the tractor. The angle fitted in tractor touched to 11 kv feeder electric line and due to such electrocution, the complainant as well as Vinubhai received minor injury, but deceased Gandubhai flung from the tractor as he was electrocuted and later on, it is

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found that he has expired. In background of this incident, it is alleged that the officers of the GEB have not kept the electric line in proper condition and let them to loose and as such, they have derelicted from their duty. It is alleged that deceased Gandubhai died due to criminal rashness and negligent act of the officers of the GEB. As such, the act is alleged to be culpable homicidal death not amounting to murder

4. The above facts were reported to Bilkha Police Station, Dist: Junagadh by the first informant. The FIR being I - C.R. No.15 of 2015 came to be registered against the officers of the GEB, for the offence punishable u/s 304 of the IPC.

5. The contents of the FIR are reproduced hereunder after it being translated into simple English.

"My name is Valjibhai Mavjibhai Dodariya, Koli by caste, aged - 52 years, occupation - agriculture, residing at Mevasa, Kamaribai nu Tabe, Bilakha, mobile number - 7698235756.

On being asked personally, I dictate that I have been residing with my family at the aforesaid address, and I have been farming in the land of Gopalanand Bapu for many years. Upon my police statement dated 25/09/2013 being read over to me, I further dictate that as Vinubhai Babubhai Solanki came with the Massey Ferguson tractor belonging to Sanjaybhai to the field of Gopalanand situated near boundary of the dam over Ozat river at about half past nine in the morning on 24/08/2013, I and Vinubhai were ploughing the field with the tractor. Upon our arrival on the boundary of the field at about half past ten, Gandubhai Ranchhodbhai of the next field(vaadi) came. He also sat on the wooden blade of plough to give weight. When tractor was passing under the 11

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KV electric line of G.E.B. running in the north-south direction in the field at about quarter to eleven, I, Gandubhai and Vinubhai were thrown away from the tractor. I sustained electric shock on the thumb, palm and fingers of my right hand. Looking at Gandubhai, he was found to be unconscious and was not speaking anything and was breathing. Therefore, I called Bharatbhai Anandbhai and Mansukhbhai Dhanjibhai, who were working in the next field (vaadi). As I called Sanjaybhai, he came with four wheeler vehicle and took me, Gandubhai and Vinubhai to the Government Hospital, Bilkha and Dharubhai and Ketan, son of Gandubhai, also joined us on the way to Bilkha Government Hospital, where I was treated. Gandubhai was referred to Junagadh for further treatment. He died there during the treatment. The aforesaid incident occurred due to the negligence of the G.E.B. because as there was more distance between two poles of aforesaid 11 KV electric line of Thumbala feeder passing through the field of Gopalanand Bapu in the north south direction, wires between two poles frequently came down near the ground. Therefore, I and nearby farmers frequently made oral representations to Mr. Bhatt, Helper, Mr. Shaikh, Deputy Engineer and Mr. Shah, Line Inspector and Mr. Dangodara, serving in the G.E.B. to raise the wires, but responsible employees/officers of the G.E.B. did not take any action in this regard, and wires between two poles were not raised. Therefore, as tractor was passing under the aforesaid wires at about quarter to eleven on 24/08/2013, Gandubhai Ranchhodbhai Lunagariya, standing on the wooden blade of the plough, got electrocuted due to touching of the wire of 11 KV of G.E.B. on his head and died. I and Vinubhai sustained minor electric shock. Therefore, death of Gandubhai Ranchhodbhai, aged 60 years, residing at Mevasa (Kamribai), occurred due to the negligence of G.E.B. employees. Therefore, I give complaint to take legal action against responsible employees of the G.E.B. "

6. Heard learned advocate Mr. Deepak Dave for the

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petitioners, Mr. Dhaval Parmar for respondent No.2 and learned APP Mr. Ronak Raval for the respondent State.

7. Learned advocate Mr. Dave for the petitioners would submit that bare reading of the FIR does not indicate ingredients of section 299 of the IPC, which is essential for forming the offence u/s 304 of the IPC. He would further submit that section 299 of the IPC is defining culpable homicidal death not amounting to murder. He would further submit that in the present case, the officers of the GEB are charged with the offence punishable u/s 304 of the IPC inter alia on the ground that the electric wire were hanging loose and it came in contact with the tractor driven in the agriculture field, which has resulted into electrocution and death of deceased Gandubhai. He would submit that pending the allegations levelled in the FIR, basic ingredients of section 299 of the IPC are totally missing. There is no mens rea alleged in the FIR against the petitioners/accused. He would further submit that even the intention or knowledge of the act , which is essential in forming the offence u/s 299 of the IPC is missing in the present case. He would further submit that in fact, bare reading of the FIR indicates that in what circumstances, the officers of the GEB - petitioners herein can be considered as offender of the culpable homicidal death not amounting to murder is not clear; no allegation qua is made against the officers of the GEB. He would further submit that the officers of the GEB i.e. the petitioners/accused are arraigned in the offence only on the ground that at the relevant time, one was Line Inspector, another was Deputy Engineer, third was Helper and last one was in-charge of the GEB, Bilkha Sub

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Division. No allegations of commission of offence in their personal capacity are alleged. He would further submit that even there is no prima facie evidence to indicate that 11 kv electric wire coming from Thumala feeder was hanging loose. He would further submit that except bald statement that electric wire was hanging loose , there is nothing on record to prima facie proove it. He would further submit that along with the FIR, no other documents are produced by the complainant to the effect that it was reported to the Sub Division about loose wire. In these facts and circumstances, he would submit that allowing the FIR to roll into the trial would unnecessarily put the petitioners/accused in the hardship. He would further submit that the FIR on the face of it does not disclose offence u/s 299 of the IPC and therefore, the petitioners/accused cannot be relegated for facing trial.

8. Upon such submissions, relying upon unreported decision of this Court in case of Kaushik Ambalal Oza and others Vs. State of Gujarat and another rendered in Special Criminal Application No.1117 of 2014, he prays to allow this petition and to quash and set aside the impugned FIR.

9. Per contra, learned advocate Mr. Dhaval Parmar for the respondent - original complainant would submit that it is a case, where prima facie, it appears that 11 kv electric line were allowed to hang loose by the officers of the GEB and which has resulted into death of deceased Gandubhai. Thus, prima facie, there is dereliction of duty on the part of the petitioners/accused/officers of the GEB doing criminal act,

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which indicates mens rea and further indicates intention. Thus, it is submitted that at the threshold, the FIR should not be quashed by allowing this petition.

10. Vehemently objecting the submissions of learned advocate Mr. Dave for the petitioners/accused, learned APP Mr. Ronak Raval would submit that in the case on hand, due to loose wire of 11 kv feeder line, one person has lost his life. He would further submit that in view of the provisions of the Electricity Act, it is duty cast upon the officers of the GEB to periodically check 11 kv feeder line and to make a report. He would further submit that when 11 kv electric line is passing through the agriculture field, the duty became more important and the officers have to check it vigorously and rigorously as well as regularly so as to avoid any kind of accident or mishap, which may ultimately snatch human life. He would further submit that in the present case, the carelessness and negligence of the petitioners/accused has resulted into death of one person and such carelessness and negligence on the part of the petitioners/ accused has to be tested during trial by leading evidence. He would therefore, submit not to allow this petition to scuttle the proceedings at the threshold.

11. Upon such submission, he prays to dismiss this petition.

12. No other and further submissions are made out by learned advocates appearing for the respective parties.

13. The FIR on the record indicates registration of the offence

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punishable u/s 304 of the IPC. The principal allegation made in the FIR against the petitioners/accused is that they have allowed to keep 11 kv feeder line loose and since the tractor driven by the complainant came in contact with said loose electric wire, deceased Gandubhai lost his life. The bone of the submission, which goes to the root of the case is that the officers of the GEB should not allow hanging 11 kv feeder line loose and since they have allowed to remain it loose, it has taken the life of a person and thus, it is alleged that the petitioners - accused have committed the offence of culpable homicidal death not amounting to murder punishable u/s 304 of the IPC.

14. Section 304 of the IPC by itself create no offence, but provides punishment for culpable homicidal death not amounting to murder. Section 299 of the IPC defines the culpable homicide. Whereas, section 300 of the IPC defines culpable homicide is murder.

At this juncture, let refer Section 299 of the IPC as under:-

"299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Illustrations

(a) A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.

(b) A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing it to be likely to

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cause Z's death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide.

(c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death. Explanation 1.--A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3.

--The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born."

15. The essential pre-requisite of the offence of of culpable homicide is death of a human being by a human being. The culpable homicide may be classified in three categories; firstly, death is caused by doing an act with the intention of causing death; secondly, when it is committed by causing death with the intention of causing such bodily injury as is likely to cause death and thirdly, when the death is caused by an act doing with knowledge that such act is likely to cause death.

16. The note of caution at this juncture must be stated. Knowledge and intention should not be confused or intermixed. Section 299 of the IPC in defining first two categories does not

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deal with the knowledge, whereas, it does in relation to the third category. It would also be relevant to bear in mind the import of the terms "likely by such act to cause death." Herein again lies a distinction as "likely" would mean probably and not possibly. When an intended injury is likely to cause death, the same would mean an injury which is sufficient in the ordinary course of nature to cause death which in turn would mean that death will be the most probable result. [See: Kesar Singh Vs. State of Haryana, (2009) 3 SCC 1193].

17. It can be said that a person commits culpable homicide, if the act by which the death is caused is done; (a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death and (c) with the knowledge that the act is likely to cause death. Thus, in order to bring the culpability within the meaning of Section 299 of the IPC, and to prove culpable homicidal death not amounting to murder, prima facie, the prosecution is required to prove either of the three circumstances exists in the facts of the case. The intention or knowledge either of them is required to be proved.

18. In Jagriti Devi Vs. State of Himachal Pradesh, (2009) 14 SCC 771, the Hon'ble Apex Court in regards to knowledge and intention, which are basic ingredients of offence punishable u/s 299 of the IPC, held and observed thus:-

"A bare reading of the section makes it crystal clear that the first and the second clause of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not intention. Both the expression "intent" and

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"knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e. mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed."

19. The demarcating lines between the knowledge and intention though are thin and subtle, they really exist and is not difficult to pursue. The intention which also includes foresight of certainty. A certain consequences is presumed to be intended, though not desired, when it is foreseen as reasonably certain. The knowledge in the context of section 299 of the IPC inter alia mean consciousness of realization or understanding. The distinction between the terms "knowledge" and "intention" is a difference of degrees. Knowledge denotes a bare state of conscious awareness of certain facts in which the human mind might itself remain supine or inactive whereas intention connotes a conscious state in which mental faculties are roused into activity and summed up into action for the deliberate purpose of being directed towards a particular and specific end which the human mind conceives and perceives before itself. In Jayprakash Vs. State (Delhi Admn.), (1991) 2 SCC 32, the Hon'ble Apex Court has vividly and extensively discussed the intention and knowledge as follows:-

" We may note at this stage that `intention' is different from `motive' or `ignorance' or `negligence'. It is the `knowledge' or `intention' with which the act is done that makes difference, in arriving at a conclusion whether the offence is culpable homicide or murder. Therefore, it is necessary to know the meaning of these expressions as used in these

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provisions.

The `intention' and `knowledge' of the accused are subjective and invisible state of mind and their existence has to be gathered from the circumstances, such as the, weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the code designedly used the words `intention' and `knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he, must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to `knowledge', `intention' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end."

20. Following the above principles of law, what requires to be found out is whether any of the conditions of section 299 of the IPC applies in the present case. In other words, whether the intention of causing death or likely to cause death or knowledge that such act is likely to cause death is disclosed. The contents of the FIR, which are reproduced herein above, is accepted even as a gospel truth, the same failed to gather any material to show that there was intention on the part of the petitioners/accused. They have no intention to kill deceased Gandubhai nor they were knowing that their act would cause death of deceased Gandubhai. In fact, the FIR itself failed to connect the petitioners/accused with the death of the deceased. It is unfortunate that Gandubhai was electrocuted while he was standing on the tractor, which came in contact with the 11 kv

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feeder electric line. But whether this incident attracts any element of culpable homicidal death not amounting to murder. The answer certainly would be no. There is no intention or knowledge attributable. It is also not proved that the 11 kv feeder electric line wire were hanging loose. It is an unfortunate, but an accident, wherein deceased Gandubhai died. But, by no means, such unfortunate accident proves that this happened due to deliberate act on the part of the petitioners - accused or it was within the knowledge of the petitioners/accused that such deliberate act would cause death.

21. Learned advocate Mr. Parmar for the respondent complainant has relied upon judgment in case of Mohd. Hadi Raja Vs. State of Bihar and another reported in (1998) 5 SCC 91 to appreciate that sanction u/s 197 of the Code is not required for prosecution of officers of government companies or public undertakings in a case where it is a personal or overt act of the officers of the Government or public undertaking. To meet the contention, learned advocate Mr. Deepak Dave would submit that he has not pressed the ground of not obtaining sanction u/s 197 of the Code. Thus, the judgment relied upon by learned advocate Mr. Parmar for the respondent accused does not render any help.

22. In a well celebrated judgment of the Hon'ble Apex Court in case of State of Haryana Vs. Bhajanlal reported in AIR 1992 SC 604, interpreting section 482 of the Code of Criminal Procedure read with Article 226 of the Constitution of India, principally, inherent power of this Court, the Hon'ble Apex Court made

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following observations:-

"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers u/s 482 of the Code of Criminal Procedure which we have extracted and reproduced above, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investi- gation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable

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on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institu- tion and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, (7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

23. The parameters stated in the above judgment are squarely applicable to the facts and facet of this case. The present criminal proceedings are manifestly attended with ulterior motive. No ingredient of offence punishable u/s 299 of the IPC is made out. Under these circumstances, allowing the FIR to roll out the offence culminating into criminal case would amount to abuse of process of law.

24. In the result, present petition is allowed and impugned FIR being I - C.R. No.15 of 2015 registered with Bilkha Police Station and all other consequential proceedings arising therefrom are hereby quashed and set aside. Rule is made absolute.

(J. C. DOSHI,J) SHEKHAR P. BARVE