Application Under Section 482 Of ... vs For
2023 Latest Caselaw 3616 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK
                      CRLMC No.464 of 2023

        Application under Section 482 of Criminal Procedure Code,
        1973.
                           ---------------
        Preetam Kumar Mohapatra       ......                 Petitioner

                                    -Versus-

        State of Odisha and another       .......            Opp.Parties

        Advocate(s) appeared in this case:-
        _________________________________________________________
              For Petitioner      : Mr. A. Tripathy &
                                    A.K. Behera
                                         Advocates.

              For Opp. Parties    : Mr. N. Pratap,
                                    [Additional Standing Counsel]
        _________________________________________________________
        CORAM:
             JUSTICE SASHIKANTA MISHRA

                                JUDGMENT

18th April, 2023

SASHIKANTA MISHRA, J. The petitioner, in the present

application filed under Section 482 of Cr.P.C. seeks to

challenge the entire criminal proceeding initiated against

him in G.R. Case No. 1029 of 2019 in the Court of learned

J.M.F.C., Kanas district Puri.

2. The prosecution case is as follows:-

The cyclone "Fani" ravaged parts of State of Orissa in

May-June, 2019 causing wide spread damage to property

including the electricity installations and severance of

electricity wires from the poles. Such damage also occurred

in the village of Krushna Nagar under Kanas police station

whereby the wires were severed from their poles and

consequentially there was disruption of electricity supply.

Such supply was restored by affixing new wires to the poles

and the same was the responsibility of Preetam Kumar

Mohapatra, the Junior Engineer of Electricity Department

(accused petitioner) and his staff. Two to three days

thereafter, when the mother of the informant, namely,

Nishamani Sethi had gone to backyard to pluck flowers,

she came in contact with live electric wire that had been

severed from its pole and was electrocuted. When the

informant's father wanted to save her, he was also

electrocuted. It is alleged that because of sheer negligence

and carelessness of the petitioner and his staff, the old wire

was connected to electricity and had not been removed

even though the new wires had been attached to the poles.

3. On a written report being submitted by the informant

before Kanas police station, it led to registration of P.S.

Case No. 53 of 2019 under Sections 304-A/34 of IPC

followed by investigation. Upon completion of investigation,

charge sheet was submitted only against the accused-

petitioner under Section 304-A/34 of I.P.C.

4. Heard Mr. Amitav Tripathy, learned counsel for the

petitioner and Mr. Nikhil Pratap, learned Additional

Standing Counsel for the State.

5. Mr. Tripathy argues that a criminal proceeding cannot

be initiated on vague and non-specific allegations.

Referring to the FIR, Mr. Tripathy would contend that there

is nothing therein to show that the petitioner had

committed the so called act of negligence rather he has

been roped in only because he was the Junior Engineer at

the relevant time. Moreover, the FIR also mentions the staff

of the Electricity Department, but none of them was charge

sheeted. Unless the prosecution comes up with a definite

case that the petitioner was solely responsible for allowing

a live electricity electric wire to lie on the ground, the

proceeding against him would not be justified.

6. Per contra, Mr. Pratap submits that undisputedly the

petitioner being the Junior Engineer was responsible for

repair of the electricity poles and wires damaged due to the

cyclone. It is evident that while restoring electricity supply

care was not taken to remove the old wire which being

connected to power supply led to the accident. Therefore,

according to Mr. Pratap, the petitioner is criminally liable

for negligence.

7. Before proceeding to determine the merits of the rival

contentions noted above, this Court would like to keep in

perspective certain principles of law. Firstly, it is well

settled that a criminal proceeding is a serious matter and

cannot be initiated without adequate reason. Reference

may be had in this regard to the ratio decided in the case of

Pepsi Foods Ltd. & another vs. Special Judicial

Magistrate & others, reported in 1998 5 SCC 749

Secondly, a criminal liability can be fastened on specific

allegations, but not on vague or non-specific allegations.

Moreover, the concept of vicarious liability is ordinarily

unknown in criminal jurisprudence. Keeping the above

principles in background, the facts of the case may now be

examined.

Reading of FIR reveals that the LT line running in the

backyard of the informant's house was connected to power

supply two to three days before the incident. Such work

was supposedly done by the Electricity Department under

the supervision of the Junior Engineer, Preetam Kumar

Mohapatra (petitioner). It is alleged that because of

carelessness and negligence, despite affixing of new wire to

the poles, the old wire was not disconnected rather it

remained connected with electricity. Here, the first

question that arises is, was it the sole responsibility of the

petitioner to affix and remove the wires. Obviously, he

being the Junior Engineer, it would be reasonable to

suppose that he was in overall charge of the work but then

it would be too much to expect that he had himself

performed the work of connection of new wires and removal

of the old ones. Moreover, as per the FIR story, the work

was done two to three days before the incident and yet no

one noticed the live old wire connected to the pole lying on

the ground. The prosecution is silent as to if the deceased

persons had visited their backward to pluck flowers in the

morning in the interregnum or that they had done so for

the first time on the date of occurrence

8. This Court has perused the statements of the

witnesses recorded under Section 161 of Cr.P.C. including

that of the informant-Nibas Kumar Sethi. None of them has

stated anything, apart from repeating parrot-like the FIR

version, that would even remotely show that the petitioner

was personally responsible for the alleged mishap.

Moreover, it is not known as to how the old wire was

charged as has been argued by Mr. Tripathy. It is also

possible that the old wire became charged because of some

error in connection or its contact with the new wire. In any

case, the petitioner cannot be blamed for the same. Going

along with the prosecution story as laid it is necessary to

find out whether the petitioner can be booked for

negligence for supposedly not taking care to remove the old

live wire from the pole. It would be necessary to examine

the provision under Section 304-A of IPC, which is quoted

hereinbelow.

"304A. 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."

9. Bare reading of the provision shows that the following

ingredients would be necessary to constitute the offence,

namely, (i) There must be death of a person; (ii) The

accused must have caused such death; and (iii) Such act of

the accused was rash or negligent and that it did not

amount to culpable homicide.

10. It is the well settled principle of law that in order to

attract the section death must be a direct result of rash or

negligent act of the accused and the act must be the

sufficient cause without the intervention of any other act of

negligence. It must be causa causans, it is not enough that

it may have been the causa sine qua non. Reference in this

regard may be had to the decision of the Apex Court in the

case of Kurban Hussein Mohammedali Rangwalla vs.

State of Maharashtra, reported in AIR 1965 SC 1616. In

the case of Anandasingh Neggi vs. State , reported in AIR

1969 Ori 49, this Court held that there must be a direct

nexus between the death of the person and the rash and

negligent act. Remote nexus is not enough.

11. Viewed in light of the principles of law referred

hereinbefore, this Court finds absolutely no evidence to

show that the act of leaving a live wire connected to the

pole had been committed by the accused. In the absence of

such fundamental fact, there would not be any proximal

nexus between the so called negligence of the petitioner

and the death of the deceased.

12. As it appears, the petitioner has been roped in only

because he was the Junior Engineer and in charge of the

repair work. Obviously, the Junior Engineer cannot be

expected to have done all the manual works by himself.

Thus, it is more on suspicion than any positive evidence

that the prosecution appears to have based its case.

Obviously, mere suspicion without any material, prima

facie showing the complicity of the petitioner is not

sufficient to sustain the criminal proceeding against him.

13. Thus, on the conspectus of the analysis of law and

facts and the rival contentions raised, this Court has no

hesitation in holding that the prosecution case lacks the

necessary ingredients to proceed against the petitioner. As

such, continuance of the proceeding would amount to an

abuse of the process of the Court.

14. For the foregoing reason therefore, the CRLMC is

allowed. The criminal proceeding in G.R. Case No. 1029 of

2019 pending before learned J.M.F.C., Kanas

corresponding to Kanas P.S. Case No. 53 of 2019 is hereby

quashed.

..................................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 18th April, 2023/ B.C. Tudu, Sr. Steno