Madras High Court

Natarajan vs The Inspector Of Police on 25 February, 2021

                                                                                Crl.O.P.No.25936 of 2014


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     Dated : 25.02.2021

                                                         CORAM :

                           THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA

                                                 Crl.O.P.No.25936 of 2014
                                                           and
                                                     M.P.No.1 of 2014

                     Natarajan,
                     S/o.Ayyavu Naidu                                       ...Petitioner/A3
                                                            Vs.

                     1.The Inspector of Police,
                       K-6, T.P.Chattiram Police Station,
                       Chennai – 600 010.                 ...Respondent/Complainant

                     2.Muniyamma,
                       D/o.Late.Israel                        ...Respondent/Defacto Complainant

                     PRAYER: Criminal Original Petition is filed under Section 482 of
                     Criminal Procedure Code, seeking to call for the records and to quash the
                     charge sheet in C.C.No.5656 of 2012 pending on the file of the V
                     Metropolitan Magistrate Court, Egmore, Chennai.


                                    For Petitioner     : Mr.R.A.Mardeep

                                    For R-1            : Mr.T.Shunmugarajeswaran,
                                                         Government Advocate (Crl.Side)

                                    For R-2            : No appearance

                     1/12
https://www.mhc.tn.gov.in/judis/
                                                                             Crl.O.P.No.25936 of 2014


                                                       ORDER

This Criminal Original Petition has been filed by the

Petitioner/A3 seeking to call for the records pertaining to the charge

sheet in C.C.No.5656 of 2012 pending on the file of the V Metropolitan

Magistrate Court, Egmore, Chennai for the offence under Section 304(A)

IPC r/w Sub-Section (1) of Section 3 of the Employment of Manual

Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993.

2.The brief facts of the case is that on 09.02.2012, when the

Sub Inspector of Police viz. Manimegalai, attached to the respondent

police station was on duty, the 2nd respondent/defacto complainant gave a

complaint stating that her brother Munusamy was working as a Sanitary

worker in Division 69, Zone -5 of Chennai Corporation and that due to

his illness, he was at home on 09.02.2012. While so, at 10.00 a.m.,

Nagaraj, Munusamy, Nataraj had come to her house stating that there

was a block in the drainage and had asked her brother to come and clean

it, and that her brother had informed them that he was not feeling well

and thereby, he was unable to come to work. While so, at 10.30 a.m.,

they have come again and compelled him to come to work and later, on

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their compulsion, her brother had gone to work and on the same day at

4.00 p.m., she was informed by the persons that her brother had fallen

into the drainage and died on the spot. Based on the complaint, a case

was registered in Crime No.108 of 2012 for offence under Sections 304

(A) IPC r/w Sub-Section (1) of Section 3 of the Employment of Manual

Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 (in

short EMSCDL Act).

3.The respondent after completing investigation had filed the

final report and the case was taken up in C.C.No.5656 of 2012. The

respondent had examined / enquired 15 witnesses and cited them as

L.W.1 to L.W.15 in the final report. The present petition has been filed

seeking to quash the proceedings in C.C.No.5656 of 2012.

4.The learned counsel for the petitioner would submit that the

petitioner has been arrayed as A-3 in C.C.No.5656 of 2012. He would

submit that the petitioner is the contractor in the Corporation and even

taking into consideration the entire evidence on record, no allegation has

been made out against the petitioner for making out a case for offence

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under Section 304 (A) of IPC. He would further submit that as far as the

other offence under Section 3(1) of the EMSCDL Act, 1993 is

concerned, the case and the final report are illegal since as per the

Section 17 (3) of the EMSCDL Act, 1993, no Court shall take

cognizance of any offence under this Act except upon a complaint made

by a person generally or specially authorised in this behalf by the

Executive Authority. As per G.O.Ms.No.4, Adi Dravidar and Tribal

Welfare [ADW-6(1)], dated 04.01.2011, The Commissioner, Corporation

of Chennai is the officer authorised to exercise powers as an Executive

Authority under Section 5(1) of the EMSCDL Act, 1993. He would

submit that in this case, no complaint has been given as per Section 17

(3) of the EMSCDL Act, 1993 and thereby, the complaint in respect of

the offences under Section 17 (3) of the EMSCDL Act is also liable to be

quashed.

5.The learned counsel would submit that to implicate the

petitioner, the respondent has examined L.W.1/Muniyamma, the sister of

the deceased and L.W.5 and L.W.6 who are the brothers of the deceased

and they have stated that the petitioner had contacted the deceased over

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phone and asked him to go to the place of work. Even admitting the

statement to be true, the allegation against the petitioner is that he had

asked the deceased to go to the place of work and it is not the case of the

prosecution that the petitioner had asked the deceased to get into the

drainage and remove the blockage and there is absolutely no material to

pinpoint that the petitioner is the person who had asked the deceased to

get into the drainage. In order to attract the ingredients of Section 304

(A) IPC, the act of the person who is alleged of the offence must be the

causa causans to the act, whereas there is absolutely no material to prove

that the petitioner is directly responsible for the death of the victim and

there is also no material to show that the petitioner acted in a rash and

negligent manner so as to be the cause and reason for the death of the

victim.

6.The learned Additional Public Prosecutor appearing for the

1st respondent would submit that the petitioner is the contractor and the

victim who is a sanitary worker was at home on 09.02.2012 and the

petitioner had contacted the victim over phone and had directed him to

attend the work. He would submit that L.W.1/Muniyamma and

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L.W.5/Balu, L.W.6/Samsun and L.W.7/Selladurai who are respectively

the brother and cousin brothers of the deceased have spoken that the

petitioner had compelled the other accused to bring the victim to work.

However, he would fairly submit that the petitioner was not present at the

scene of occurrence and the specific allegation against the petitioner is

that he had compelled the other accused to bring the victim to work.

7.Heard the learned counsel on either side and perused the

materials placed on record.

8.The final report has been filed for offence under Section

304(A) IPC r/w Sub-Section (1) of Section 3 of the Employment of

Manual Scavengers and Construction of Dry Latrines (Prohibition) Act,

1993. It is apposite to refer to Section 17 of the EMSCDL Act is thus:

“17.Provision in relation to jurisdiction.

(1) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.

(2)No prosecution for any offence under this Act shall be instituted except by or with the previous sanction of the Executive Authority.

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(3)No Court shall take cognizance of any offence under this Act except upon a complaint made by a person generally or specially authorised in this behalf by the Executive Authority.”

9.As per Section 17 (3) no court shall take cognizance of any

offence under this Act except upon a complaint made by a person

generally or specially authorised on behalf of the Executive Authority

and as per G.O.Ms. No.4 Adi Dravidar and Tribal Welfare [ADW-6(1)],

dated 04.01.2011, the Commissioner Corporation of Chennai is the

Executive Authority and he is empowered / authorised to make a

complaint. Admittedly, in this case, without any complaint being given

by the Executive Authority, the case has been registered. Further reading

of the entire materials on record shows that there is no direct proximity

of the petitioner for commission of offence under Section 304 (A) IPC.

Even as per the statement of the witnesses, the other accused had

informed them that the petitioner had compelled them to ask the victim to

come to work. Further, the petitioner was also not available at the place

of occurrence. The act of the petitioner is not the causa causans for the

death of the victim.

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10.At this juncture, it is apposite to refer to the Judgment of the

Hon'ble Apex Court in Kurban Hussein Mohammedali Bangwalla vs.

State of Maharashtra reported in 1965 AIR (SC) 1616 is under:

“4.We may in this connection refer to Emperor v. Omkar Rampratap, 4 Bom LR 679, where Sir Lawrence Jenkins had to interpret S. 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 signature. It must be the causa causans; it is not enough that it may have been the causa sine qua non.”

This view has been generally followed by High Courts in Indian 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

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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.”

11.Further, the Hon'ble Apex Court in the case of Ambalal

D.Bhatt vs. The State of Gujarat reported in (1972) 3 SCC 525, while

dealing the applicability of Section 304(A) has held that

“(i) in a prosecution for an offence under Section 304 (A) IPC, the Court has to examine whether the alleged act of the accused is the direct result of a rash and negligent act and that act was the proximate and efficient cause of the death without intervention of others negligence. The mere fact that an accused contravenes certain rules or regulations in doing of an act does establish an offence under

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Section 304 (A) IPC. The act causing death must be the causa causans; it is not enough that it may have been the causa sine qua non. The Court has to determine whether the act of the accused is the causa causans or has there been a cause intervening which has broken the chain of causation so as to make the act of the accused, though a negligent one, not the immediate cause or whether it amounts to an act of gross negligence or recklessly negligent conduct.“

12.From the above, for an offence u/s.304(A) IPC, the

prosecution has to show materials that the alleged act of the accused is

the direct result of a rash and negligent act and that the act was the

proximate and immediate cause of the death without intervention of

others negligence. The mere fact that the accused contravenes certain

rules or regulations in doing of an act does not establish an offence

u/s.30(A) IPC and there must be proximity between the act of the

accused and the death of the victim and the prosecution must prove that

the act of the petitioner is the causa causans for the death of the victim.

13.In this case on hand, even if it is accepted that the entire

case of the complainant is true, there is no material to show that there is a

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direct nexus between the death of the victim and the act of the petitioner

asking the victim to attend duty. When there is absolutely no material to

connect that the act of the petitioner is the direct cause to the death of the

victim, the proceedings have to be necessarily quashed.

14.In view of the above, the proceedings in C.C.No.5656 of

2012 in so far as the petitioner stands quashed. Consequently, the

connected miscellaneous petition is also closed.

25.02.2021 Index:Yes/No Internet:Yes/No ssi

1.The V Metropolitan Magistrate Court, Egmore, Chennai.