Karnataka High Court

Shri.Murigeppa Shivaputrappa ... vs State Of Karnataka on 21 February, 2022

Bench: M.Nagaprasannapresided Bymnpj

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 21ST DAY OF FEBRUARY 2022

                           BEFORE

           THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

               CRIMINAL PETITION NO.100597/2020

BETWEEN:

1.     MURIGEPPA SHIVAPUTRAPPA HATTIKAL
       AGE: 47 YEARS, OCC: TECHNICAL DIRECTOR
       NIRANI SUGARS LTD.,
       R/O: HAVAGI VILLAGE,
       NOW AT: VIJAYA COLONY-MUDHOL,
       DIST: BAGALKOTE.

2.     ANILKUMAR SATYAPPA HUGAR
       AGE: 40 YEARS,
       OCC: ASSISTANT GENERAL MANAGER
       NIRANI SUGARS WTP
       (WATER TREATMENT PLANT) PLANT,
       R/O: CHANAL VILLAGE, MUDHOL,
       DIST: BAGALKOTE.
                                                ...PETITIONERS.

(BY SHRI NEELENDRA D. GUNDE, ADVOCATE.)


AND:

1.     STATE OF KARNATAKA
       MUDHOL POLICE STATION,
       REPRESENTED BY THE
       STATE PUBLIC PROSECUTOR,
       HIGH COURT BUILDING,
       DHARWAD-580001.

2.     BHUTALEPPA BASAPPA HOSAMANI
       AGE: 45 YEARS, OCC: AGRICULTURE,
       R/O: UTTUR GATE-MUDHOL,
                                       2




      NOW AT MALAPUR VILLAGE LIMITS,
      FARM HOUSE-BAGALKOTE.
                                                           ...RESPONDENTS.

(BY SHRI RAMESH CHIGARI, HCGP, FOR R.1;
SHRI HARISH S. MAIGUR, ADVOCATE, FOR R.2.)


      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
ORDER DATED 05/08/2019, PASSED BY THE LEARNED PRINCIPAL
CIVIL JUDGE & JMFC, MUDHOL, IN CC NO.811/2019, ON THEREBY
TAKING COGNIZANCE FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 336, 337, 338 & 304(A) OF IPC, INSOFAR AS
PETITIOENRS   ARE   CONCERNED     &  CONSEQUENTLY   ENTIRE
PROCEEDINGS INSOFAR AS PETITIONERS ARE CONCERNED, ETC.,.

     THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT PASSED THE FOLLOWING:


                                 ORDER

The petitioners call in question the proceedings in

C.C.No.811/2019, pending on the file of Prl. Civil Judge and

JMFC, Mudhol, registered for the offences punishable under

Sections 336, 337, 338, 304A of the Indian Penal Code, 1860.

2. The brief facts of the case as borne out from the

pleadings are as follows:

The petitioners are officers of Nirani Sugars Limited of the

Water Treatment Plant. On 16.12.2018 the son of the 2nd

respondent was doing his work at Water Treatment Plant along

with others who at the time of performing his duties fell down

and succumbed to the injuries. The incident at the Treatment

Plant resulted in death of four employees. Based upon the death

of the employees, the 2nd respondent complainant who is the

father of one of the injured person in the incident registers a

complaint against the petitioners for the foresaid offences.

3. It is also germane to notice that on the very incident

the competent officer had registered a case under the Factories

Act, which is pending adjudication before the appropriate fora.

Simultaneously the subject complaint is also registered invoking

the aforesaid offences primarily punishable under Section 304A

of the IPC. Such an action of the complainant taking recourse to

the offences punishable under the provisions of IPC is no longer

res-integra as a co-ordinate Bench of this Court in the case of

M.Srinivas vs. the State, in Crl.P.No.9124/2016 disposed off on

15.2.2019, while considering on identical issue has held as

follows:

10. Section 304A Indian Penal Code deals with death by negligence. The section reads:

"Whoever causes the death of any person by doing any rash and negligent

act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

11. It is now well settled that in order to constitute an offence under section 304A of Indian Penal Code, the negligence imputed to the accused must be gross in nature. Though the term "gross" has not been used in section 304A of Indian Penal Code, in JACOB MATHEW vs. STATE OF PUNJAB & Others in (2005) 6 SCC 1, the Hon'ble Supreme Court while examining a case of criminal medical negligence by a Doctor under section 304A of Indian Penal Code, has reviewed the case law on the subject and in para 48 thereof, has held as under:

"(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e., gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

(6) The word 'gross' has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as

occurring in Section 304-A IPC has to be read as qualified by the word 'grossly'."

12. In SUSHIL ANSAL vs. STATE through Central Bureau of Investigation (2014) 6 SCC 173, the Hon'ble Supreme Court in para 78 has held as under:

"There is no gainsaying that negligence in order to provide a cause of action to the affected party to sue for damages is different from negligence which the prosecution would be required to prove in order to establish a charge of 'involuntary manslaughter' in England, analogous to what is punishable under Section 304-A IPC in India. In the latter case it is imperative for the prosecution to establish that the negligence with which the accused is charged is 'gross' in nature no matter that Section 304-A IPC does not use that expression. What is 'gross' would depend upon the fact situation in each case and cannot, therefore, be defined with certitude. Decided cases alone can illustrate what has been considered to be gross negligence in a given situation."

13. It is now well settled that, in order to fasten criminal liability for the offence under section 304A of Indian Penal Code, the prosecution is required to establish that the act of the accused No.1 was the proximate and immediate cause of death and that the death was caused without the intervention of another person's negligence. As held in SUSHIL ANSAL's case, supra, it must have been the causa causans; and not mere causa sine qua non.

14. In the instant case, petitioner herein is implicated in the alleged offence on the allegation that he was responsible for causing the accident by leaving heap of mud on the accident site. In Kurban Hussein Mohamedalli Rangawalla, supra, the Hon'ble Supreme Court dealt with an identical situation. In the said case, the allegation against the appellant therein was that he allowed the burners to be used in the same room in which varnish and turpentine were stored, which were alleged to be negligent act and fire resulted because of the proximity of the burners. But the said contention was negatived by the Hon'ble Supreme Court by endorsing the view taken in EMPEROR vs. OMKAR RAMPRATAP in (1902) 4 Bombay LR 679, the Hon'ble Supreme Court has observed that,

"This view has been generally followed by High Courts in India and is in our opinion the right view to take of the meaning of S.304-A. It is not necessary to refer to other decisions, for as we have already said this view has been generally accepted. Therefore, the mere fact that the fire would not have taken place if the appellant had not allowed burners to be put in the same room in which turpentine and varnish were stored, would not be enough to make him liable under S.304-A, for the fire would not have taken place, with the result that seven persons were burnt to death, without the negligence of Hatim. The death in this case was, therefore, in our opinion not directly the result of a rash or negligent act on the part of the appellant and was not the proximate and efficient cause without the intervention of another's negligence. The appellant

must, therefore, be acquitted of the offence under S.304-A."

15. In the instant case also, the proposition laid down in the above decision, in my view, is squarely applicable to the facts of this case. A plain reading of the charge-sheet discloses that the material allegations constituting negligence are directed only against accused No.1. The material on record indicates that the deceased died on account of the rash and negligent act of accused No.1 in hitting the motorcycle driven by the accused. Therefore, the act of accused No.1 was the proximate and immediate cause of death of the deceased. The act of the petitioner/accused No.2 in leaving heap of mud on the road may amount to an offence under section 134 of Indian Motor Vehicles Act, but the same does not amount to an act of negligence within the meaning of section 304A of Indian Penal Code. Thus, on consideration of all the above facts and circumstances of the case, in the light of the law applicable to the facts of this case, I am of the clear opinion, that petitioner/accused No.2 cannot be proceeded for negligence in causing the death of the deceased within the meaning of Sections 304A and 279 of Indian Penal Code. Consequently, the prosecution of the petitioner being illegal, the same amounts to abuse of process of Court.

As a result, the petition is allowed. The proceedings initiated against the petitioner in C.C.No.10878/2016 pending on the file of Metropolitan Magistrate Traffic Court-III, Bengaluru is hereby quashed.

4. In the light of the judgment of the co-ordinate

Bench of this Court, taking recourse to offence punishable under

Section 304A of the IPC, once the provisions of Factories Act are

invoked and pending consideration, is unavailable. Thus, the

subject petition deserves to succeed. It is also brought to the

notice of this Court that all the four deceased, were the

employees of the petitioners company and company in which

the deceased were working have adequately compensated by

payment of ten lakh rupees each to the families/dependents of

the deceased.

5. For the aforesaid reasons, the following:

ORDER