Kerala High Court
K.G.Venkiteswaran vs State Of Kerala on 30 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. No.8018 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
CRL.MC NO. 8018 OF 2018
CRIME NO.35/2017 OF Ambalamedu Police Station, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.637 OF
2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT,
CHOTTANIKKARA
PETITIONER/2ND ACCUSED:
K.G.VENKITESWARAN,
AGED 29 YEARS, S/O K.V. GANAPATHI, FLAT
NO.GFA, ROYAL HERITAGE, PALLIPPARAMBUKAVU
ROAD, TRIPUNITHURA, ERNAKULAM.
BY ADVS.
P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
SRI.AJEESH K.SASI
SRI.P.M.RAFIQ
SRI.V.C.SARATH
SRI.VIPIN NARAYAN
SMT.POOJA PANKAJ
SRI.THOMAS J.ANAKKALLUNKAL
SRUTHY N. BHAT
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
Crl.M.C. No.8018 of 2018
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REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
BY ADV:
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY
HEARD ON 30.10.2024, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
Crl.M.C. No.8018 of 2018
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P.V.KUNHIKRISHNAN, J.
----------------------------------------
Crl.M.C. No.8018 of 2018
-----------------------------------------
Dated this the 30th day of October, 2024
ORDER
This Criminal Miscellaneous Case is filed to quash
the proceedings in CC No.637/2018 on the file of
Judicial First Class Magistrate Court, Chottanikkara. The
petitioner is the 2nd accused in the above case. The
offence alleged is under Section 304A IPC.
2. The crux of the allegation is as follows:
On 10.01.2017, at about 10.00 am, an
electrical flashover occurred while carrying out work in
the cable cellar of EG2 Sub Station attached to the
Captive Power Plant of BPCL, Cochin Refinery. Two
employees under CW13 (Contractor) were engaged in
welding work etc. using Aluminum sheets beneath the
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33 KV GIS panel. While so, a mishap by fire due to
electrical short circuit occurred and the workers
aforesaid suffered burn injuries. Both of them
succumbed to the same later. It is the case of the
prosecution that the 1st accused who was the
supervisor employed by the Contractor, duty bound to
be present at the spot and to give the necessary
directions to the workers while the work is carried out,
failed to be present at the scene to do the needful and
the 2nd accused/petitioner herein, who is the power
plant shift in charge employed with the Cochin Refinery,
duty bound to renew the work permit to the 1st
accused supervisor and to make himself available at
the spot failed to do so. The prosecution therefore
alleges that the accused are guilty of criminal
negligence and hence the prosecution.
3. According to the petitioner, even if the entire
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allegations are accepted, no offence is made out
against him. Hence, this Criminal Miscellaneous Case is
filed.
4. Heard the learned counsel appearing for the
petitioner and the learned Public Prosecutor.
5. According to the petitioner, even if the entire
allegations in Annexure-A Final Report are accepted, no
offence is made out against the petitioner. It is
submitted that, as per the statement given by the
Charge Witness Nos.13 and 15, the incident occurred
for the reason that the workers started the job on their
own, may be due to over confidence or negligence,
without waiting for any instruction from the Supervisor
and complying to the permit conditions. Even as per
the prosecution version, according to the petitioner, the
1st accused in the crime was allotted with renewed work
permit by the petitioner at about 09.45 AM on the
fateful day only and the accident admittedly takes
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place at about 09.57 AM. It is also submitted by the
petitioner that, it has come out through the statements
of the witnesses that the workers who were involved in
the accident have been doing the work in the plant for
the past more than one week before the date of
accident and apparently, the 1st accused who was on
his way to EG2 (Plant) after registering the request for
disabling the smoke detector in the Fire Station,
subsequent to him getting the work permit renewed
from the petitioner could not have arrived at the spot,
which is about 1 km away from the Fire Station at the
time of the accident. It is also submitted that, BPCL,
Cochi Refinery conducted an internal investigation into
the incident. Annexure-B is the internal investigation
report. In Annexure-B, the company authorities on a
detailed consideration of the materials, came to the
conclusion that the accident was the result of the
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workers starting the work on their own without waiting
for the Supervisor. It is also submitted by the petitioner
that, in Annexure-B, the versions presented by other
employees with whom the deceased workers had
conversed before and after the accident, even on the
way to the hospital have been taken notice of.
Therefore, it is submitted that, even if the entire
allegations are accepted, no offence under Section
304A IPC is made out.
6. The learned Public Prosecutor submitted that
the contentions raised by the petitioner are to be raised
before the trial court, at the appropriate stage.
7. This court perused the final report filed by the
Police. The main allegation against the petitioner is
that, he and the 1st accused, who were in charge of the
plant, has not given proper instruction and has not
taken proper security measures and therefore, they are
liable under Section 304A of IPC.
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8. I am of the considered opinion that, the
ingredients of Section 304A IPC is not made out, even if
the allegations are accepted. I think, there is force in
the arguments raised by the counsel for the petitioner.
To attract the offence under Section 304A IPC, certain
ingredients are necessary.
9. To attract the offence under Section 304A IPC,
death should be the direct consequence of the
negligence of the accused. This Court in Rekha and
Ors. v. State of Kerala and Ors.
[MANU/KE/3490/2021, Crl.M.C.No.5722/2016 dated
30.11.2021] considered the ingredients to attract
Section 304A IPC. It will be better to extract the
relevant portion hereunder:
'7. As early in 1902, the Bombay High Court in
the oft quoted decision in Emperor v. Omkar
Rampratap and another laid down the law
thus:-
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"To impose criminal liability under
Section 304A, Indian Penal Code, it is
necessary that the death should have
been the direct result of a rash and
negligent act of the accused, and that
act must be the proximate and efficient
cause without the intervention of
another's negligence. It must be the
causa causans; it is not enough that it
may have been the causa sine qua
non."
8. These observations have received
acceptability of the Apex Court and the Hon'ble
Supreme Court in umpteen number of
authorities have quoted the same with
approval. (See the decisions in Kurban Hussein
Mohamedalli Rangawalla v. State of
Maharashtra [MANU/SC/0093/1964 : AIR 1965
SC 1616] and Suleman Rahiman Mulani and
Another v. State of Maharashtra
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[MANU/SC/0089/1967 : AIR 1968 SC 829] etc.)
That means, there must be direct nexus
between the death and the alleged rashness or
negligence attributed against the accused
persons. Here the question is whether such a
rashness or negligence can be attributed
against the petitioners.'
10. The Apex Court in Ambalal D. Bhatt v. The
State of Gujarat [AIR 1972 SC 1150] also considered
the ingredients of Section 304A IPC. It will be better to
extract the relevant portion of the above judgment:
'8. It appears to us that in a prosecution for
an offence under Section 304A, the mere
fact that an accused contravenes certain
rules or regulations in the doing of an act
which causes death of another, does not
establish that the death was the result of a
rash or negligent act or that any such act
was the proximate and efficient cause of the
death. If that were so, the acquittal of the
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appellant for contravention of the provisions
of the Act and the Rules would itself have
been an answer and we would have then
examined to what extent additional evidence
of his acquittal would have to be allowed, but
since that is not the criteria, we have to
determine whether the appellant's act in
giving only one batch number to all the four
lots manufactured on 12-11-62 in preparing
batch No. 211105 was the cause of deaths
and whether those deaths were a direct
consequence of the appellants' act, that is,
whether the appellant's act is the direct
result of a rash and negligent act and that
act was the proximate and efficient cause
without the intervention of another's
negligence. As observed by Sir Lawrence
Jenkins in Emperor v. Omkar Rampratap
(1902) 4 Bom LR 679 the act causing the
deaths "must be the cause causans; It is not
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enough that it may have been the causa sine
qua non". This view has been adopted by
this Court in several decisions. In Kurban
Hussein Moham-medali Rangwala v. State of
Maharashtra MANU/SC/0093/1964 : [1965]2
SCR 622, the accused who had
manufactured wet paints without a licence
was acquitted of the charge under Section
304A because it was held that the mere fact
that he allowed the burners to be used in the
same room in which varnish and turpentine
were stored, even though it would be a
negligent act, would not be enough to make
the accused responsible for the fire which
broke out. The cause of the fire was not
merely the presence of the burners within
the room in which varnish and turpentine
were stored though this circumstance was
indirectly responsible for the fire which broke
out, but was also due to the overflowing of
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froth out of the barrels. In Suieman Rahiman
Mulani v. State of Maharashtra
MANU/SC/0089/1967 : 1968 CriLJ 1013 the
accused who was driving a car only with a
learner's licence without a trainer by his
side, had injured a person. It was held that
that by itself was not sufficient to warrant a
conviction under Section 304A. It would be
different if it can be established as in the
case of Bhalchandra v. State of Maharashtra
MANU/SC/0042/1968: 1968 CriLJ 1501 that
deaths and injuries caused by the
contravention of a prohibition in respect of
the substances which are highly dangerous
as in the case of explosives in a cracker
factory which are considered to be of a
highly hazardous and dangerous nature
having sensitive composition where even
friction or percussion could cause an
explosion, that contravention would be the
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causa causans.'
(underline supplied)
11. Again, the apex court in Kurban Hussein
Mohammedali Rangwalla v. State of Maharashtra
[AIR 1965 SC 1616] considered the ingredients of
section 304A IPC. The relevant portion is extracted
hereunder:
'5. We may in this connection refer to
Emperor v. Omkar Rampratap (1902) IV Bom.
L.R. 679 where Sir Lawrence Jenkins had to
interpret section 304-A and observed as
follows :-
"To impose criminal liability under
section 304-A, Indian Penal Code, it is
necessary that the death should have
been the direct result of a rash and
negligent act of the accused, and that
act must be the proximate and efficient
cause without the intervention of
another's negligence. It must be the
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causa causans; it is not enough that it
may have been the cause sine qua non."
6. 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 section
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 section V, 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
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intervention of another's negligence. The
appellant must therefore be acquitted of the
offence under section 304-A.'
12. In the light of the above principles, this Court
considered the allegation against the petitioner. The
allegation against the petitioner is that, he has not
taken proper security measures to avoid the accident.
The totality of the facts and circumstances revealed
that the alleged incident not happened due to the fault
of the petitioner alone. There is some negligence on
the part of the employees also.
13. As observed by the Apex Court in Ambalal
D. Bhatt's case (supra), the mere fact that an accused
contravenes certain rules or regulations in the doing of
an act which causes death of another, does not
establish that the death was the result of rash or
negligent act or that any such act was the proximate
and efficient cause of the death.
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14. As observed by Sir Lawrence Jenkins in
Emperor v. Omkar Rampratap (1902) 4 Bom LR 679,
the act causing the death "must be the cause causans;
It is not enough that it may have been the sine qua
non".
15. In the light of the above principles, I am of
the considered opinion that the prosecution against the
petitioner need not be continued.
Therefore, this Criminal Miscellaneous Case is
allowed. All further proceedings against the petitioner
alone in CC No.637/2018 on the file of Judicial First
Class Magistrate Court, Chottanikkara, arising from
Crime No.35/2017 of Ambalamedu Police Station are
quashed.
Sd/-
P.V.KUNHIKRISHNAN
nvj JUDGE
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PETITIONER ANNEXURES
ANNEXURE A TRUE COPY OF THE FINAL REPORT IN
CRIME NO.35/2017 OF AMBALAMEDU POLICE
STATION, KOCHI CITY.
ANNEXURE B TRUE COPY OF THE INTERNAL
INVESTIGATION REPORT OF BPCL, KOCHI
REFINERY REGARDING THE OCCURRENCE
GIVING RISE TO THE INSTANT CRIME.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE
