Madras High Court
Bathrinathan vs The State Of Tamil Nadu on 26 February, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 23.08.2021
PRONOUNCED ON: 26.08.2021
CORAM
THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN
Crl.O.P.No. 14769 of 2016
And
Crl.M.P.Nos. 7373 & 7374 of 2016
Bathrinathan ... Petitioner/Accused
Vs.
The State of Tamil Nadu
Represented by
Inspector of Police
E-1, Mylapore Police Station (Law & Order),
Chennai – 600 004. ..Respondent/Complainant
PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. to
call for the records in C.C.No. 5196 of 2015 pending on the file of the
XVIII Metropolitan Magistrate, Saidapet, Chennai, quash all further
proceedings as against the petitioner.
***
For Petitioner : Mr. G.R.Hari
For Respondent : Mr. E.Raj Thilak
Government Advocate
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2
ORDER
This Criminal Original Petition has been filed under Section 482 of
the Code of Criminal Procedure to call for the records in C.C.No. 5196 of
2015 pending on the file of the 18th Metropolitan Magistrate Court at
Saidapet at Chennai and to quash all further proceedings as against the
petitioner/A-1 is concerned. The petitioner was the owner of a old house of
about 850 sq.ft., built up area, at No.10/55, Muthu Street, Mylapore,
Chennai – 600 004. He wanted to demolish the house. He engaged a
Contractor / A2, who was in the business of demolishing old buildings. A2
is said to have engaged A3, the owner of a JCB vehicle for demolishing the
house. A4 was the driver of the JCB vehicle. He also engaged A5 lorry
driver of a tipper lorry to clears the debris from the premises. The Maistry,
who was examined as witness No.4, had engaged employees including
Murugan for clearing the debris.
2. On 30.11.2014 late night at around 11.30 p.m., when
admittedly the petitioner was also present at the spot and the JCB was
engaged in demolishing the building and Murugan was engaged in clearing
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the debris, a wall fell down on Murugan, who was hurt and was taken to
Government Royapettah Hospital and was declared as brought dead.
Thereafter, FIR in Crime No. 2940 of 2014 had been registered in E-1,
Mylapore Police station under Section 304-A IPC and after investigation,
final report was filed before the XVIII Metropolitan Magistrate, Saidapet in
Chennai and was taken cognizance as C.C.No. 5196 of 2015. Seeking to
quash the calendar case in so far as he is concerned, A1, the owner of the
building had filed the present Original Petition.
3. Heard arguments advanced by Mr. G.R.Hari, learned counsel
for the petitioner/A1 and Mr. E.Raj Thilak, learned Government Advocate
(Crl.Side) appearing for the respondent.
4. The main contention of Mr. G.R.Hari, learned counsel was that
the petitioner/A1 was only the owner of the building. He had engaged A2 as
Contractor to demolish the building. A2 had, in turn engaged A3 owner of
JCB vehicle for demolishing the building. A-4 was the driver of the JCB
vehicle. He had also engaged A5 lorry driver for the tipper lorry to be used
for clearing debris. The deceased Murugan was one of the employees, who
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was clearing the debries when the wall fell down on him and he died as a
result. The only issue stressed by Mr.G.R. Hari is that the offence under
Section 304-A IPC can not be attracted in so far as the petitioner/A1 is
concerned as the ingredients as stipulated under Section 304-A IPC
particularly causa causans that resulted in the death was not due to any
direct act on the part of the petitioner/A1.
5. In this context, the learned counsel straight away relied on the
Judgments of the Hon'ble Supreme Court and of learned Single Judges of
this Court and therefore urged that this Court should interfere with further
proceedings of C.C.No. 1596 of 2015.
6. The learned counsel first relied on 1965 AIR SC 1616 [Kurban
Hussein Mohammedali Vs. State of Maharashtra]. That was a case where
the appellant was the manager and working partner of a firm which
manufactured paints and varnish. The factory did not have license for
manufacturing wet paints, but still manufactured them. Four burners were
used in the factory. During the process, froth overflowed from a barrel and
because of the heat, varnish and turpentine which had been stored at a short
distance caught fire as a result of which seven workmen died.
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7. The appellant had been prosecuted and convicted under Section
304A and 285 IPC. His appeal before the High Court had been dismissed.
He then preferred a further appeal before the Hon'ble Supreme Court. The
Hon'ble Supreme Court, while acquitting him for offence under Section
304A IPC held as follows:-
“The main contention of the appellant is that
he was not present when the fire broke out resulting
in the death of seven workmen by burning and it
cannot therefore be said that he caused the death of
these seven persons by doing any rash or negligent
act. The view taken by the Magistrate on the other
hand which appears to have been accepted by the
High Court was that as the appellant allowed the
manufacture of wet paints in the same room where
varnish and turpentine were stored and the fire
resulted because of the proximity of the burners to the
stored varnish and turpentine, he must be held
responsible for the death of the seven workmen who
were burnt in the fire. We are -however of opinion
that this view of the Magistrate is not correct. The
mere fact that the appellant allowed the burners to be
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used in the same room in which varnish and
turpentine were stored, even though it might be a
negligent act, would not be enough to make the
appellant responsible for the fire which broke out.
The cause of the fire was not merely the presence of
burners in the room in which varnish and turpentine
were stored, though this circumstance was indirectly
responsible for the fire which broke out. But what s.
304-A requires is causing of death by doing any rash
or negligent act, and this means that death must be
the direct or proximate result of the rash or negligent
act. It appears that the direct or proximate cause of
the fire which resulted in seven deaths was the act of
Hatim. It seems to us clear that Hatim was apparently
in a hurry and therefore he did not perhaps allow the
rosin to cool down sufficiently and poured turpentine
too quickly. The evidence of the expert is that the
process of adding turpentine to melted rosin is a
hazardous process and the proportion of froth would
depend upon the quantity of turpentine added. The
expert also stated that if turpentine is not slowly
added to bitumen and rosin before it is cooled down to
a certain temperature, such fire is likely to break out.
It seems therefore that as turpentine was being added
at about closing time, Hatim was not as careful as he
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should have been and probably did not wait
sufficiently for bitumen or rosin to cool down and
added turpentine too quickly. The expert has stated
that bitumen or rosin melts at 300 degree F and if
turpentine is added at that temperature, it will catch
fire. The flash point of turpentine varies from 76 to
110 degree F. Therefore the cooling must be brought
down, according to the expert, to below 76 degree F
to avoid fire. In any case even if that is not done,
turpentine has to be added slowly so that there may
not be too much frothing. Clearly therefore the fire
broke out because bitumen or rosin was not allowed
to cool down sufficiently and turpentine was added
too quickly in view of the fact that the process was
performed at closing time. It is clearly the negligence
of Hatim which was the direct or proximate cause of
the fire breaking out, though the fact that burners
were kept in the same room in which turpentine, and
vamish were stored was indirectly responsible for the
fire breaking out and spreading so quickly. Even so
in order that a person may be guilty under s. 304-A,
the rash or negligent act should be the direct or
proximate cause of the death. In the present case it
was Hatim's act which was the direct and proximate
cause of the fire breaking out with the consequence
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that seven persons were burnt to death; the act of the
appellant in allowing turpentine and varnish being
stored at a short distance was only an indirect factor
in the breaking out of fire...”
8. An anlaysis of the above Judgment would show that evidence
pointed out that the appellant was not physically present when the accident
or the incident of fire took place. He came there as soon as the information
about it reached him. Further, it had been observed that the cause of the fire
was not the presence of the burners in the room in which the varnish and
turpentine were stored. It was found on evidence that the direct or
proximate cause of the fire which resulted in seven deaths was the act of
another accused Hatim, who did not allow the rosin to cool down
sufficiently and poured turpentine too quickly. During the course of trial as
is seen from the above extract, an expert was also examined, who also gave
an opinion that fire is likely to break out if turpentine is not solely added to
bitumen and rosin before it is cooled down to a certain temperature. It was
held on evidence that the negligence of Hatim was the direct or proximate
cause of the fire breaking out. It was further held that the act of the
appellant in allowing turpentine and varnish being stored at a short distance
was only an indirect factor in the breaking out of a fire.
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9. The facts in the present case are certainly distinguishable.
10. In the first place, the petitioner herein was physically present at
11.30 in the night when the accident occurred. This has been spoken to by a
witness in his statement. This statement has to be tested during cross
examination. That can taken place only when trial is permitted to be
conducted. Further as the owner of the building and as a person present at
the spot, who had engaged, either directly or indirectly all the other accused,
the petitioner herein was the only person with authority to direct the manner
in which the demolition is to be conducted. The wall collapsed as a result
of such demolition. The petitioner will necessarily have to explain the
circumstances leading to the collapse of the wall.
11. The learned counsel for the petitioner then relied on 2012 (2)
MLJ (Crl.) 585, S.Varadhan Vs. State, represented by the Sub-Inspector,
Thiruvallur.
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12. A learned Single Judge of this Court had relied on Kurban
Hussein Mohammedali's case referred supra. The facts in this case were
that A1 was driving a lorry loaded with iron powder from Gummidipoondi
to Chennai. A2 to A4, officials of the Commercial Tax Department
stopped the lorry. In view of the sudden stopping of the lorry, a TATA
Sumo car which was following the lorry collided with the lorry resulting in
the death of four occupants in the car. On a complaint given, a charge sheet
was laid against A1 to A4 for commission of offence under Sections 279,
338 (6 counts) and 304-A IPC (4 counts). A2 to A4/Officials of the
Commercial Tax Department filed a petition under Section 482 Cr.P.C., to
quash the proceedings. The learned Single Judge had held as follows:-
“14. Section 279 IPC speaks about rash
driving or riding on a public highway and, admittedly,
the petitioners herein did not drive any vehicle in a
rash and negligent manner. Section 338 IPC speaks
about causing grievous hurt by act endangering life or
personal safety or others and Section 304-A IPC
speaks about causing death by negligence. To
constitute either the offence under Section 279 or
304-A IPC, proof of rash and negligence is essential
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and the result on account of rash or negligence,
which included the injury or death must be the direct
result of such act of the accused and it must be
proximate and efficient cause without intervention of
other‘s negligence.
15. Admittedly, the petitioners herein, in
pursuant to the direction of their superior official
were discharging their duties and since they were
specifically directed to check the vehicles with regard
to evasion of commercial tax, they halted the lorry
bearing Regn. No. TSI 8600 and it was halted and the
TATA Sumo car, which was closely following the said
lorry, dashed against the said lorry on the rear side
and as a result of which some of the occupants died
and some of them sustained grievous injuries. The
acts of A-2 to A-4, even as per the version of the
prosecution, cannot be said to be rash and negligent
and assuming that it was rash and negligent act,
cannot be said that it was proximate and efficient
cause of the death of the occupants of the TATA
Sumo car.
16. A perusal of the statement of witnesses
would also indicate that 9 persons were traveling in
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the ill-fated TATA Sumo car bearing Regn. No. TN-
04-E-4318 and the lorry bearing Regn. No/TSI 8600
was driven fast and the TATA Sumo car was following
it and suddenly brakes were applied due to which the
TATA Sumo car dashed on the rear side of the lorry.
Even the materials available on record, relied on by
the prosecution in the form of statement of witnesses
and sketch, do not disclose that the petitioners were
aware of the car coming behind the lorry. Therefore,
it cannot be said that their act of halting the vehicle is
the proximate., and efficient cause for the death/injury
to the occupants of the car.”
13. The learned Judge had observed as a fact held that the
petitioners did not drive any vehicle. He also found that the petitioners
were discharging their duties and had been directed to stop vehicles with
regard to evasion of commercial tax. They halted the lorry. The TATA
Sumo car which was nearly following the lorry dashed on the lorry on the
rear side. It was held by the learned Single Judge that the act of A2 to A4
cannot be said to be rash and negligence and cannot be said to be proximate
cause of the death of the occupants, the TATA Sumo car. It was also found
that the materials did not disclose that the petitioners were aware of the car
coming behind the lorry.
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14. Again the facts in the present case are different. The death of
Murugan was the result of a wall collapsing on him. The wall was being
demolished by a JCB hired by the Contractor who in turn was hired by the
petitioner. The petitioner was also present at the spot. Therefore, the
possibility of danger of the wall collapsing on the workmen was direct and
on facts, the said Judgment is distinguishable.
15. The learned counsel for the petitioner then relied on a
Judgment reported in 2010 (1) MLJ (Crl.) 1064 [ Geetha Ramesh and Ors.
Vs. Sub-Inspector of Police]. In that case, the third petitioner was an
Advocate of this Court. The first petitioner was his wife and the second
petitioner was his son. The first and second petitioners had purchased a
property in Nilgiris District. They wanted to construct a house. They
engaged A1/Contractor for the construction work. A1 engaged A2 as
labourer sub Contractor for doing earth work to construct a wall. At that
time, the earth caved in. One of the women worker died and there were
injuries to six other workers. Pursuant to a complaint, Crime No. 109 of
2008 was registered for offences punishable under Sections 337 and 304-A
IPC. The learned Single Judge while examining the application to quash the
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proceedings held, again relying on Kurban Hussein Mohammedali's case
referred supra, that the petitioners cannot be prosecuted for the offences
punishable under Sections 304-A and 337 I.P.C for the death of one of the
workers and injuries caused to six of the workers engaged by the contractor
(A1) and labour sub-contractor (A2) since the excavation work was not
done in the presence of any one of the petitioners or under the supervision
of or in accordance with the specific directions issued by the petitioners
regarding the dimensions and the manner in which excavation work is to be
done. The petitioners had made clear averments that the entire construction
work was entrusted to the contractor (A1) and the excavation work for
construction of retaining wall was undertaken by the contractor himself,
engaging the labour sub-contractor. It was admitted that the petitioners were
residing in Chennai which is more than 500 k.m away from
Udagamandalam. Therefore, it was quite obvious that they could not have
directly supervised the work. Further more, there was no legally admissible
evidence collected by the Investigating officer to show that the work was
done under their supervision and that there was rashness and negligence on
the part of any one of the petitioners which resulted in the accident without
there being intervention of negligence of any other person.
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16. In the instant case as repeatedly pointed out, the petitioner was
actually present at the site when the accident occurred. He was present
when the demolition work was undertaken. The facts again are
distinguishable.
17. The learned counsel for the petitioner then relied on a
Judgment reported in 2015-1-L.W. (Crl.) 70 [ ATB Bose Vs. State by
Inspector of Police and another]. In that case, the petitioner, who had filed
an application under Section 482 Cr.P.C., to quash further proceedings in
C.C.No. 6260 of 2006 on the file of XIII Metropolitan Magistrate, Egmore,
Chennai, was a member of a Trust known as “Avvai Kalai Kazhagam”. The
Trust had a swimming pool where training was offered for children between
the age group of 5 and 15. The defacto complainant's son, aged 6 years had
been admitted to learn swimming. The defacto complainant received a call
that his son had been admitted in hospital in an unconscious state. He found
that his son had died of drowning. The witness during the course of
investigation stated that the deceased, was standing by the side of the
swimming pool and accidentally slipped into the swimming pool. This was
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not noticed by anyone. Somebody then jumped into water and rescued the
boy. He was given first aid but died on the way to the hospital.
18. The learned Single Judge once again examined the facts and
found that the petitioner therein /A2 could not be charged with offence
under Section 304-A IPC. It was held that allowing the deceased to go near
the swimming pool without a life jacket was not the direct or proximate
cause for the death of the deceased. The learned Single Judge concurred
with the statement of the Senior counsel on behalf of the petitioner that the
act of the petitioner cannot be even a remote cause for the death of the
deceased.
19. In such circumstances, the learned Single Judge had allowed
the application and quashed the proceedings.
20. To repeat the facts again are different. The petitioner as
repeatedly pointed out was physically present. He had engaged the
contractor and was present when the accident occurred.
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21. I must express an opinion that the reliance of the learned
counsel for the petitioner on Judgments without adhering to fundamental
principles as laid down in the provision would not advance the case of the
petitioner.
22. In this case, the petitioner was physically present at the time
when the accident took place. In the case cited supra ATB Bose Vs. State
by Inspector of Police and another as a fact, a witness had spoken that the
deceased boy was standing near the swimming pool and had accidentally
slipped into the swimming pool. The act of negligence charged against the
petitioner therein was that he permitted the boy to go near the swimming
pool without a life jacket. That charge was found to be remote by the
learned Single Judge. The facts are certainly distinguishable.
23. The learned counsel for the petitioner then relied on an
unreported Judgment in Crl.O.P.No. 2801 of 2019 of a learned Single Judge
of this Court dated 26.02.2021 [L.Ashok Kumar Vs. State, represented by
Inspector of Police, Pallapatty Police Station, Salem District]. In that
case, again, the petitioner had filed an application to quash the proceedings
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in C.C.No. 317 of 2018 on the file of the learned Judicial Magistrate Court
No.II, Salem. The petitioner was the owner of a Mill, who had engaged
men to remove sand, garbage etc., inside the premises. A JCB machine was
clearing the debris and dumping the garbage outside the compound wall.
This was removed through a tipper lorry, which was driven by the deceased.
The lorry came into live contact with a High tension electric wire, as a result
of which, the driver was electrocuted and died on the spot. An FIR was
registered under Section 304(A) IPC.
24. The learned Judge came to a conclusion that the lorry had come
in contact with the live, High Tension wire and the petitioner cannot be held
to be the causa causans. Therefore, he had thought it fit to quash the
calendar case.
25. It must however be pointed out that the lorry was clearing the
debry outside the compound wall. In the instant case, the accident took
place at the very spot where the petitioner was standing. It took place at
11.30 in the night. Quite apart from the statement of the witness that the
petitioner was present, there is yet another statement that there was poor
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lighting. These two statements will necessarily have to be further tested
during the course of trial. The petitioner will naturally have every
opportunity to test these two statements. But his presence alone is sufficient
to hold that he should face the trial and the proceedings cannot be quashed.
26. The learned counsel for the petitioner then relied on a
Judgement of a learned Single Judge of this Court dated 27.07.2020 in
Crl.O.P.Nos. 121 & 1950 of 2020 [C.Muthuramalingam Vs. Sate
represented by Inspector of Police, B-5, Harbour Police Station, Chennai
and others]. In those petitions which had both been filed to quash charges
under Section 304-A, 279 and 337 IPC read with 34 IPC, the facts were that
the petitioners were employees of Chennai Port Trust. Four persons were
sleeping in the JD Shed III at Chennai Port Trust. The first accused was the
driver of the tipper lorry. When he was reversing the lorry, he ran over the
four persons and three persons died. An FIR was registered. The
petitioners, who sought to quash the proceedings were working as Section
Superintendent, Shed Master, Assistant Traffic Manager and Harbour Safety
Officer. It was found as a fact by the learned Single Judge that they were on
duty at Chennai Port Trust but had nothing to do with the crime committed
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by the first accused, namely, driver of the lorry. In those circumstances, the
learned Single Judge had thought it fit to quash the proceedings.
27. Once again as repeatedly pointed out that the facts are
distinguishable from the facts of this case where the petitioner was
physically present when the accident took place.
28. In the Judgments reported in 2015-1-LW (Crl.) 70 [ATB Bose
Vs. State, represented by Inspector of Polie] or in Crl.O.P.Nos. 121 &
1950 of 2020 [C.Muthuramalingam Vs. Sate represented by Inspector of
Police, B-5, Harbour Police Station, Chennai and others] dated
27.07.2020 or in Crl.O.P.No. 2801 of 2019 , dated 26.02.2021 [L.Ashok
Kumar Vs. State, represented by Inspector of Police, Pallapatty Police
Station, Salem District], the learned Single Judges of this Court were
probably not made aware of the Judgment of the Hon'ble Supreme Court
reported in 2014 6 SCC 173 [Sushil Ansal Vs. State through CBI]. The
Hon'ble Supreme Court had occasion to examine the phrases causa causans
and Causa Sine Qua Non for the death of a victim under Section 304-A
IPC. The Judgment started with the following paragraph:-
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“Enforcement of laws is as important as their
enactment, especially where such laws deal with
safety and security of citizens and create continuing
obligations that call for constant vigil by those
entrusted with their administration. Callous
indifference and apathy, extraneous influence or
considerations and the cynical “Chalta Hai” attitude
more often than not costs the society dearly in man-
made tragedies whether in the form of fire incidents,
collapse of buildings and bridges, poisonous gas leaks
or the like. Short-lived media attention followed by
investigations that at times leave the end result flawed
and a long winding criminal trial in which the
witnesses predecease their depositions or switch sides
under pressure or for gain and where even the victims
or their families lose interest brings the sad saga to an
uncertain end. A somewhat similar story is presented
in these appeals by special leave arising out of a
common judgment and order dated 19th December,
2008 passed by a Single Judge of High Court of Delhi
whereby a batch of criminal appeals filed by those
convicted by the trial Court for commission of
different offences and the sentences awarded to them
were disposed of alongwith criminal revision petition
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no.17 of 2008 filed by the Association of Victims of
Uphaar Tragedy (hereinafter, “AVUT”) that led to the
death of 59 persons besides injuries to nearly 100
others. ”
29. The facts of that case in brief are that a theatre auditorium
Uphaar Cinema was in the first floor of the cinema complex. A balcony was
constructed in the second floor. The ground floor comprised of a parking
lot and a room used for placing two electric transformers maintained by
Delhi Vidyut Board. The bigger of the two transformers caught fire on
13.06.1997 at 6.55 a.m. It was brought under control by the Officials of
Delhi Vidyut Board. Repairs were also carried out. It was recharged for
resumption of electric supply by 11.30 a.m.
30. The prosecution case was that the repair was unsatisfactory and
resulted in loose connections. This created a hole in the radiator. Through
this hole, the transformer oil starting leaking out. Heat was generated and
this ignited the oil at 4.55 p.m. The fire spread to the parking lot where
cars were parked. The result was that the cars went ablaze. The smoke
gushed into the stairwell and into the cinema auditorium through a door and
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through the air conditioning ducts. Further, smoke travelled through
another staircase and into the lower portion of the balcony of the
auditorium. At this time, a large number of persons were in the auditorium
enjoying the matinee show of ‘Border’, a popular Hindi movie. Because of
the smoke and carbon monoxide, people started suffocating. The shift
incharge received a telephonic message from the Deputy General Manager
of Uphaar Cinema. It was only then was the transformer switched off and
the flow of energy to the cinema complex stopped. This was at 5.05 p.m.
However, inside the auditorium the people rushed towards the exit in
darkness as there was no emergency lights or cinema staff to help or guide
them. There was no public announcement. The project operator was not
given instructions to stop the film. The doors of the middle entrance of the
balcony were found to be bolted by the gatekeeper, who left his duty
without handing over charge to his reliever. Since an additional of 52 extra
seats had been placed, another exit was also closed. A1 and A2 were the
owner of the cinema hall. They knew about these deviations. It was found
that these obstructions, deviations, violations and deficiencies resulted in
the victims keeping trapped for 10 to 15 minutes leading to the death of 50
persons.
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31. In that case, the charge of Section 304-A IPC against A1 and
A2 was discussed in detail. It must be kept in mind that A1 and A2 were
the owners and were not present during the time of incident. They only
knew about the deviations that had been made. In the cases cited by the
learned counsel, the charges were quashed because the accused in were not
present but the Hon'ble Supreme Court had taken a totally different view in
a similar circumstance. Therefore, I have no hesitation to hold that the
orders relied on by the learned counsel for the petitioner in so far as
delivered by the learned Single Judges can be stated to apply only to the
facts of those particular cases.
32. The Hon'ble Supreme court while examining Section 304-A
IPC held as follows:-
“(ii) “Rash” or “negligent” — Meaning of
56. Section 304-A IPC makes any act causing
death by a rash or negligent act not amounting to
culpable homicide, punishable with imprisonment of
either description for a term which may extend to two
years or with fine or with both. It reads:
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“304-A. Causing death by negligence.—
Whoever causes the death of any person by doing any
rash or 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.
57. The terms “rash” or “negligent” appearing
in Section 304-A extracted above have not been
defined in the Code. Judicial pronouncements have all
the same given a meaning which has been long
accepted as the true purport of the two expressions
appearing in the provisions. One of the earliest of
these pronouncements was in Empress of India v. Idu
Beg [Empress of India v. Idu Beg, ILR (1881) 3 All
776] , where Straight, J. explained that in the case of
a rash act, the criminality lies in running the risk of
doing an act with recklessness or indifference as to
consequences. A similar meaning was given to the
term “rash” by the High Court of Madras in
Nidamarti Nagabhushanam, In re [Nidamarti
Nagabhushanam, In re, (1871-74) 7 Mad HCR 119] ,
where the Court held that culpable rashness meant
acting with the consciousness that a mischievous and
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illegal consequence may follow, but hoping that it will
not. Culpability in the case of rashness arises out of
the person concerned acting despite the
consciousness. These meanings given to the
expression “rash”, have broadly met the approval of
this Court also as is evident from a conspectus of
decisions delivered from time to time, to which we
shall presently advert. But before we do so, we may
refer to the following passage from A Textbook of
Jurisprudence by George Whitecross Paton reliance
whereupon was placed by Mr Jethmalani in support of
his submission. Rashness according to Paton means:
“where the actor foresees possible consequences, but
foolishly thinks they will not occur as a result of his
act”.
(emphasis supplied)
58. In the case of “negligence” the courts have
favoured a meaning which implies a gross and
culpable neglect or failure to exercise that
reasonable and proper care and precaution to guard
against injury either to the public generally or to an
individual which having regard to all the
circumstances out of which the charge arises, it may
be the imperative duty of the accused to have
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adopted. Negligence has been understood to be an
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 prudent and reasonable
person would not do. Unlike rashness, where the
imputability arises from acting despite the
consciousness, negligence implies acting without such
consciousness, but in circumstances which show that
the actor has not exercised the caution incumbent
upon him. The imputability in the case of negligence
arises from the neglect of the civil duty of
circumspection.
64. The duty to care in cases whether civil or
criminal including injury arising out of use of
buildings is examined by courts, vis-à-vis occupiers of
such buildings. In Palsgraf v. Long Island Railroad
Co. [248 NY 339 : 162 NE 99 (1928)] , Cardozo, J.
explained the orbit of the duty to care of an occupier
as under:
“If no hazard was apparent to the eye of
ordinary vigilance, an act innocent and harmless, at
least to outward seeming with reference to her, did not
take to itself the quality of a tort because it happened
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to be a wrong, though apparently not one involving
the risk of bodily insecurity, with reference to
someone else… Even then, the orbit of the danger as
disclosed to the eye of reasonable vigilance would be
the orbit of the duty.”
65. To the same effect is the decision in
Hartwell v. Grayson, Rollo and Clover Docks Ltd.
[Hartwell v. Grayson, Rollo and Clover Docks Ltd.,
1947 KB 901 (CA)] where the duty of an occupier
who invites people to a premises, to take reasonable
care that the place does not contain any danger or to
inform those coming to the premises of the hidden
dangers, if any, was explained thus: (KB p. 913)
“… In my opinion the true view is that when a
person invites another to a place where they both have
business, the invitation creates a duty on the part of
the inviter to take reasonable care that the place does
not contain or to give warning of hidden dangers, no
matter whether the place belongs to the inviter or is
in his exclusive occupation.”
69. In Dabwali Fire Tragedy Victims Assn. v.
Union of India [ILR (2010) 1 P&H 368] to which
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one of us (Thakur, J.) was a party, the High Court of
Punjab and Haryana held that both the School, as
well as the owners of a premises on which the school
function was held, were liable as occupiers for the
tragic death of 406 persons, most of them children,
caused by a fire which broke out on the premises
during the function. In dealing with the question
whether the owners of the premises, Rajiv Marriage
Palace, being agents of the School could be held
accountable, the High Court held as follows:
“… The School ought to have known that in a
function which is open to general public, a pandal
with a capacity of 500 to 600 persons spread over no
more than an area measuring 100' × 70', a gathering
of 1200 to 1500 persons could result in a stampede
and expose to harm everyone participating in the
function especially the children who were otherwise
incapable of taking care of their safety. The School
ought to have known that the availability of only one
exit gate from the Marriage Palace and one from the
pandal would prove insufficient in the event of any
untoward incident taking place in the course of
function. The School ought to have taken care to
restrict the number of invitees to what could be
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reasonably accommodated instead of allowing all and
sundry to attend and in the process increase the
chances of a stampede. The School ought to have seen
that sufficient circulation space in and around the
seating area was provided so that the people could
quickly move out of the place in case the need so
arose. Suffice it to say that a reasonably prudent
school management organising an annual function
could and indeed was duty-bound to take care and
ensure that no harm came to anyone who attended the
function whether as an invitee or otherwise, by taking
appropriate steps to provide for safety measures like
fire-fighting arrangements, exit points, space for
circulation, crowd control and the like. And that
obligation remained unmitigated regardless whether
the function was held within the school premises or at
another place chosen by the management of the
School, because the children continued to be under
the care of the School and so did the obligation of the
School to prevent any harm coming to them. The
principle of proximity creating an obligation for the
School qua its students and invitees to the function
would make the School liable for any negligence in
either the choice of the venue of the function or the
degree of care that ought to have been taken to
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prevent any harm coming to those who had come to
watch and/or participate in the event. Even the test of
foreseeability of the harm must be held to have been
satisfied from the point of view of an ordinary and
reasonably prudent person. That is because a
reasonably prudent person could foresee danger to
those attending a function in a place big enough to
accommodate only 500 to 600 people but stretched
beyond its capacity to accommodate double that
number. It could also be foreseen that there was
hardly any space for circulation within the pandal. In
the event of any mishap, a stampede was inevitable in
which women and children who were attending in
large numbers would be the worst sufferers as indeed
they turned out to be. Loose electric connections,
crude lighting arrangements and an electric load
heavier than what the entire system was geared to take
was a recipe for a human tragedy to occur. Absence of
any fire-extinguishing arrangements within the pandal
and a single exit from the pandal hardly enough for
the people to run out in the event of fire could have
put any prudent person handling such an event to
serious thought about the safety of those attending the
functioning especially the small children who had
been brought to the venue in large numbers….”
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70. Referring to the English decisions in Wheat
v. E. Lacon & Co. Ltd. [1966 AC 552 : (1966) 2 WLR
581 : (1966) 1 All ER 582 (HL)], Hartwell v.
Grayson, Rollo [Hartwell v. Grayson, Rollo and
Clover Docks Ltd., 1947 KB 901 (CA)], Thomson v.
Cremin [(1956) 1 WLR 103 : (1953) 2 All ER 1185
(HL)] and Emanuel (H. & N.) Ltd. v. Greater
London Council [(1971) 2 All ER 835 (CA)] , the
High Court went on to hold as follows:
“93. In the instant case while the School had
the absolute right to restrict the entry to the venue of
the function being organised by it and everything that
would make the function go as per its requirements,
the owners had not completely given up their control
over the premises, and were indeed present at the
time the incident occurred. The facts and
circumstances brought on record in the course of the
enquiry establish that the School and the Marriage
Palace owners were both occupying the premises and
were, therefore, under an obligation to take care for
the safety of not only the students, but everyone who
entered the premises on their invitation or with their
permission specific or implied. As to the obligation of
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an occupier to take care qua his invitees a long line of
English decisions have settled the legal position….
***
72. To sum up, negligence signifies the breach
of a duty to do something which a reasonably
prudent man would under the circumstances have
done or doing something which when judged from
reasonably prudent standards should not have been
done. The essence of negligence whether arising from
an act of commission or omission lies in neglect of
care towards a person to whom the defendant or the
accused as the case may be owes a duty of care to
prevent damage or injury to the property or the
person of the victim. The existence of a duty to care is
thus the first and most fundamental of ingredients in
any civil or criminal action brought on the basis of
negligence, breach of such duty and consequences
flowing from the same being the other two. It follows
that in any forensic exercise aimed at finding out
whether there was any negligence on the part of the
defendant/accused, the courts will have to address the
above three aspects to find a correct answer to the
charge.
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(iv) Difference between negligence in civil
actions and in criminal cases
73. Conceptually the basis for negligence in
civil law is different from that in criminal law, only in
the degree of negligence required to be proved in a
criminal action than what is required to be proved by
the plaintiff in a civil action for recovery of damages.
For an act of negligence to be culpable in criminal
law, the degree of such negligence must be higher
than what is sufficient to prove a case of negligence in
a civil action. Judicial pronouncements have
repeatedly declared that in order to constitute an
offence, negligence must be gross in nature. That
proposition was argued by Mr Ram Jethmalani at
great length relying upon the English decisions apart
from those from this Court and the High Courts in the
country. In fairness to Mr Salve, counsel appearing
for CBI and Mr Tulsi appearing for the Association of
Victims, we must mention that the legal proposition
propounded by Mr Jethmalani was not disputed and in
our opinion rightly so. That negligence can constitute
an offence punishable under Section 304-A IPC only
if the same is proved to be gross, no matter the word
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“gross” has not been used by Parliament in that
provision is the settled legal position”.
78. 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”.
80. We may now advert to the second and an
equally, if not, more important dimension of the
offence punishable under Section 304-A IPC viz. that
the act of the accused must be the proximate,
immediate or efficient cause of the death of the
victim without the intervention of any other person's
negligence. This aspect of the legal requirement is
also settled by a long line of decisions of the courts in
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this country. We may at the outset refer to a Division
Bench decision of the High Court of Bombay in
Emperorv. Omkar Rampratap [(1902) 4 Bom LR
679] where Sir Lawrence Jenkins speaking for the
Court summed up the legal position in the following
words:
“… to impose criminal liability under Section
304-A of the Penal Code, 1860, it is necessary that
the act should have been the direct result of a rash
and negligent act of the accused and that act must be
proximate and efficient cause without the intervention
of another negligence. It must have been the causa
causans; it is not enough that it may have been the
causa sine qua non.”
82. To sum up: for an offence under Section
304-A to be proved it is not only necessary to
establish that the accused was either rash or grossly
negligent but also that such rashness or gross
negligence was the causa causans that resulted in
the death of the victim.
83. As to what is meant by causa causans we
may gainfully refer to Black's Law Dictionary (5th
Edn.) which defines that expression as under:
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“Causa causans.—The immediate cause; the last link
in the chain of causation.”
The Advance Law Lexicon edited by Justice
Chandrachud, former Chief Justice of India defines
causa causans as follows:
“Causa causans.—The immediate cause as
opposed to a remote cause; the ‘last link in the chain
of causation’; the real effective cause of damage.”
84. The expression “proximate cause” is
defined in the 5th Edn. Of Black's Law Dictionary as
under:
“Proximate cause.—That which, in a natural
and continuous sequence, unbroken by any efficient
intervening cause, produces injury and without which
the result would not have occurred. Wisniewski v.
Great Atlantic & Pacific Tea Co. [226 Pa Super 574 :
323 A2d 744 (1974)] , A2d at p. 748. That which is
nearest in the order of responsible causation. That
which stands next in causation to the effect, not
necessarily in time or space but in causal relation.
The proximate cause of an injury is the primary or
moving cause, or that which, in a natural and
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continuous sequence, unbroken by any efficient
intervening cause, produces the injury and without
which the accident could not have happened, if the
injury be one which might be reasonably anticipated
or foreseen as a natural consequence of the wrongful
act. An injury or damage is proximately caused by
an act, or a failure to act, whenever it appears from
the evidence in the case, that the act or omission
played a substantial part in bringing about or
actually causing the injury or damage; and that the
injury or damage was either a direct result or a
reasonably probable consequence of the act or
omission.”
33. The reasoning in the above case makes it very clear that
culpable negligence or failure to exercise reasonable and proper care to
guard against injury to an individual having regard to all circumstances is
the imperative duty which the accused should have adopted. The Hon'ble
Supreme Court had also held that negligence is the breach of duty to do
something which a reasonably prudent man should, under the circumstances
have done and when judged from reasonably prudent standards should not
have done. The Hon'ble Supreme Court also, as seen from the extract above
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examined, the difference between negligence in civil actions and in criminal
cases. They had very clearly established that the cause of action for 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 manslauter in England, analogus to what is punishable under
Section 304-A IPC in India.
34. With respect to the dimension of an offence punishable under
section 304-A IPC, the act of the accused must be the proximate, immediate
or efficient cause of the death of the victim. The Hon'ble Supreme Court
had observed that the act of the accused must be proved to be the causa
causans and not simply a Causa Sine Qua Non for the death of the victim
in a case under Section 304-A IPC.
35. In the instant case, as is very clearly seen, the petitioner had
engaged a Contractor, A2, to demolish his old building. During the process
of demolishing the petitioner was present physically. He was in charge of
the process. He was the Master of all the other accused. The other accused
were working under him either directly or indirectly. The remuneration
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received by each of them was out of the money paid to A2, the contractor by
the petitioner. The petitioner was therefore responsible for the life of each
one of those who were under his command including A2, A3, A4 and A5 to
demolish his old house. The petitioners should therefore have taken extra
care as was expected. The death was a direct result or a reasonable probable
consequence of his act of omission. These factors can be decided only
during the course of trial. The prosecution must be afforded the opportunity
to establish the circumstances leading to the injury caused to Murugan.
That can be done only during trial. There are therefore no merits in this
petition and it has to suffer an order of dismissal.
36. In M/s. Neeharika, Infrastructure ... vs The State Of
Maharashtra and another [ 2021 SCC Online SC 315], the Hon'ble
Supreme Court had given the guidelines to be considered by the Court while
entertaining an application under Section 482 Cr.P.C. While giving
elaborate guidelines, it had been stressed that the power of quashing should
be exercised sparingly with circumspection. It had also been stated that the
Court cannot embark upon an enquiry as to the reliability or genuineness or
otherwise of the allegations made in the FIR/complaint. It had been further
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stated that quashing of a complaint should be an exception rather than an
ordinary rule.
37. Keeping in mind the above guidelines which are only a few of
the guidelines issued by the Hon'ble Supreme Court in the above Judgment
and examining the facts of the present case, it is clear that trial is required to
either prove or disprove the presence of the petitioner/A1 at the time of the
incident and to prove /disprove the safety measures taken by the
petitioner/A1 to prevent any injury being caused to all the persons
employed by the Contractor which Contractor had been employed by the
petitioner/A1.
38. It is extremely unfortunate that an accident which occurred
more than six years back, has still not seen the process of trial, owing to the
pendency of this petition for quash. I have been informed that at the time of
admission, the petitioners herein were directed to deposit a sum of Rs.1/-
lakh and the learned counsel for the petitioner produced a copy of the fixed
deposit for Rs.1/- lakh dated 29.08.2016. I fear that the said amount would
be poor compensation for the death of a human life.
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39. I would therefore dismiss the present Criminal Original
Petition. Let the said deposit remain and let the trial Court take a decision
on payment of adequate compensation to the family members of the victim.
40. This Criminal Original Petition is dismissed. The XVIII
Metropolitan Magistrate, Saidapet, Chennai, is directed to commence
further proceedings in C.C.No. 5196 of 2015 and the accused are directed
to co-operate in the trial process.
41. Whenever the trial commences after framing of charges, let the
trial be conducted on a day today basis. Even if that is not practically
possible, the learned Magistrate may grant only a maximum of three
working days in between any two adjournments and should not grant more
than two successive adjournments for the same reason. If the trial proceeds
in the above manner, it can be concluded within a reasonable period of
time. At any rate, taking into consideration various other factors like the
natural tendency of any accused to file applications or any other intervening
circumstances, I would still direct the said Magistrate to conclude the trial
on or before 31.12.2021.
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42. With the above said observations, this Criminal Original
Petition is dismissed. Consequently, connected Miscellaneous Petitions are
closed.
26.08.2021
Index:Yes/No
Internet:Yes/No
vsg
To
The Inspector of Police
State of Tamil Nadu
E-1, Mylapore Police Station (Law & Order),
Chennai – 600 004.
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C.V.KARTHIKEYAN, J.
vsg
Pre-delivery order made in
Crl.O.P.No. 14769 of 2016
26.08.2021
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