Madras High Court
Atb Bose vs State By Inspector Of Police on 10 October, 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 10.10.2014 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Crl.OP No.4518 of 2007 ATB Bose .. Petitioner Vs 1.State by Inspector of Police, D6 Anna Square Police Station, Triplicane, Chennai. 2.S.N.Srinivasan .. Respondents Prayer:- Criminal Original Petition filed under Section 482 Cr.P.C., to call for the records in C.C.No.6260 of 2006 on the file of the learned XIII Metropolitan Magistrate, Egmore, Chennai and quash the proceedings pending against the petitoiner herein. For Petitioner :Mr.V.Gopinath, Senior Counsel for Mr.L.Murali Krishnan For R.1 :Mr.M.Maharaja, Additional Public Prosecutor For R.2 :Mr.R.Karthikeyan ORDER
Seeking to quash the case in C.C.No.6260 of 2007 pending on the file of the learned XIII Metropolitan Magistrate, Egmore, Chennai, the petitioner who is the second accused in the case has come up with this petition.
2.This petition originally came up for final hearing before the Hon'ble Mr. Justice C.T.Selvam on 01.12.2009. On hearing both sides, the learned Judge was pleased to quash the said proceedings in so far as the petitioner/second accused is concerned. The first accused has not moved any such petition to quash the case. Challenging the order passed by this Court dated 01.12.2009, the second respondent, who is the defacto complainant in this case had filed Criminal Appeal No.1005 of 2004 before the Hon'ble Supreme Court. The Hon'ble Supreme Court by order dated 13.07.2012, set aside the order of this Court, allowed the appeal and remanded the matter to this Court for fresh hearing in accordance with law. The operative portion of the order of the Hon'ble Supreme Court reads as follows:-
"For the reason that it is a case under Section 304A IPC and allegations of contributory negligence has been made against the respondent, it was expected of the High Court to record proper reasons discussing the allegations made in the FIR and the proceedings taken out before the court of Metropolitan Magistrate. For lack of proper reasoning, we set aside the impugned order, allow the appeal and remand the matter to the High Court for fresh hearing in accordance with law."
3.This matter has been now listed before me as a specially ordered case on the orders of the Hon'ble Chief Justice. I have heard Mr.V.Gopinath, learned Senior Counsel appearing for the petitioner and Mr.M.Maharaja, learned Additional Public Prosecutor appearing for the first respondent and Mr.R.Karthikeyan, learned counsel for the second respondent and I have also perused the records carefully.
4.Before adverting into the issues involved in this petition, let us have a quick look into the facts of the present case. The petitioner is a member of the Trust known as "Avvai Kalai Kazhagam". The said Trust had a swimming pool, where it offered training for swimming for the children between the age group of 5 and 15. An advertisement was made in this regard offering such training at the cost of Rs.1,200/-. The first accused in this case is one Mr.Rama Krishnan. He was appointed by the Trust as a Trainer.
5.The defacto complainant's son, one S.Balasunder aged 6 years. Attracted by the above advertisement, the second respondent/defacto complainant admitted his son to learn swimming under the said Trust by paying Rs.1,200/-. On 15.04.2006, the defacto complainant had dropped his son in the custody of the first accused/Mr.Rama Krishnan for the purpose of training at 2.30 p.m. At about 4.00 p.m., he received a call through his cell phone that his son Mr.Balasunder had been admitted in a hospital in unconscious state. He rushed to the hospital and found that his son died of drowning. He made a complaint in this regard to the first respondent, on which, a case in Crime No.700 of 2006 under Section 304(A) I.P.C., was registered against Mr.Rama Krishnan.
6.During the course of investigation, the body of the deceased was sent for post mortem. The Doctor who conducted post mortem gave opinion that the deceased died of asphyxia due to drowning. Many witnesses including one Baskar, Kalimuthu, Manokaran, Murthy, Kaleeswaran, Sundara Mahalingam and Srinivasan were examined. All these witnesses have stated that the deceased who was standing by the side of the swimming pool, accidentally, slipped into the swimming pool, which was not noticed by anybody. Immediately, somebody jumped into the water and rescued the boy. He was given first aid and on the way to hospital, he died. Based on these materials, the first respondent laid a final report against the first accused Mr.Rama Krishnan as well as the petitioner/second accused herein.
7.According to the final report, the first accused was negligent, which resulted in the death of the deceased. Therefore, according to the final report, the first accused had committed offence under Section 304(A) I.P.C.
8.So far as the petitioner is concerned, since, according to the final report, he has not engaged a well trained person as Trainer and has not provided life jacket, he has also committed offence punishable under Section 304(A) I.P.C. On this final report, the learned Magistrate has taken cognizance. The petitioner wants to quash the same.
9.As I have already pointed out, on an earlier occasion, the learned Judge of this Court quashed the case in so far as, it relates to the petitioner. However, the Hon'ble Supreme Court set aside the said order on the ground that this Court had not recorded proper reasons discussing the allegations made in the F.I.R., and the procedure taken out before the Court of Metropolitan Magistrate. The Hon'ble Supreme Court had also found fault that there were lack of proper reasonings in the order passed by this Court. It was for these reasons, the Hon'ble Supreme Court has remanded the matter back to this Court.
10.The learned Senior Counsel appearing for the petitioner would submit that the allegations made against the petitioner would not make out an offence under Section 304(A) I.P.C., at all. He would further submit that assuming that the first accused was not a well trained trainer and assuming that the life jacket was not provided, that will not satisfy the legal requirements in terms of Section 304(A) I.P.C. The learned Senior Counsel, in order to substantiate his contention, placed reliance on a judgement of the Hon'ble Supreme Court in Suleman Rahiman Mulani and another v. State of Maharashtra (1968 LW (Crl.) 113) .
11.The learned counsel for the second respondent would however vehemently oppose this petition. Taking me through Section 304(A) I.P.C., the learned counsel for the second respondent would submit that so far as the petitioner is concerned, the allegations made against him would make out a clear offence satisfying the requirements of Section 304(A) I.P.C. According to him, knowing fully well that the first accused was not a trained Trainer and knowing fully well that allowing the children to swim without life jacket may result in the death of the child due to drowning, the petitioner had allowed the son of the defacto complainant to swim. Thus, according to him, the petitioner is liable to face the prosecution for the offence under Section 304(A) I.P.C.
12.I have considered the above submissions.
13.Before looking into the factual aspects of the matter, let us have a quick look into Section 304(A) I.P.C., which reads as follows:-
"[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.]"
14.The said provision has been interpreted by the Hon'ble Supreme Court on several occasions leaving no doubt. As has been held by the Hon'ble Supreme Court, in S.N.Hussain v. State of A.P., (AIR 1972 SC 685), an offence under Section 304(A) IPC, is committed either by doing a rash act or a negligent act. Therefore, in order to allow the prosecution to go further, it should be shown that there are materials to infer either rash act or negligent act on the part of the petitioner herein. Section 304(A) I.P.C., totally excludes the ingredients of Section 299 I.P.C., or Section 300 I.P.C. The first limb of Section 299 I.P.C., and Section 300 I.P.C., deal with the intention to cause death. Similarly, the second limb of Section 299 and the second and third limbs of Section 300 I.P.C., deal with the intention to cause bodily injury. The third limb of Section 299 I.P.C., and fourth limb of Section 300 I.P.C., speak of knowledge. For both these provisions, causing of death by an act is the fundamental requirement to be satisfied. If death of a human being is caused by another human being, it is homicide and the said homicide will be culpable homicide, if there is culpability in terms of Section 299 IP.C. Such culpable homicide is murder, if it satisfies any one of the limbs of Section 300 I.P.C. Again if the act of the accused falls in one of the excepting to Section 300 I.P.C., even then, the act will not amount to murder as the same will remain only to be a culpable homicide not amounting to murder. Why I am referring to Sections 299 and 300 I.P.C., in such a fashion is only to show that these ingredients are substantially differentiate from the ingredients of Section 304 (A) I.P.C. If there is either any intention (either to cause the death or to cause bodily injury) or knowledge in terms of Sections 299 & 300 I.P.C., certainly, the act of the accused would not fall under Section 304(A) I.P.C. It is because of this reason, I have already said that Section 304(A) I.P.C., totally excludes the ingredients of Sections 299 and 300 I.P.C. For an offence under Section 304 (A) I.P.C., also one of the essential requirements is causing of death by a person by doing any rash act or negligent act not amounting to culpable homicide. If the act of the accused amounts to culpable homicide, then there is no scope to prosecute him under Section 304(A) I.P.C.
15.Here, in this case, the second respondent would submit that the act of the petitioner in allowing the deceased to go near the swimming pool without life jacket attributes knowledge on the part of the petitioner that death is likely. If that is so, question of prosecuting the petitioner under Section 304(A) I.P.C., does not arise at all. But, the learned Counsel for the petitioner would submit that what is lacking in this case, so far as the petitioner is concerned, is the fundamental requirement of causing death by the act of the accused. The so called allowing the deceased to go near the swimming pool without life jacket, according to the learned Senior Counsel is not the direct or proximate cause for the death of the deceased. He would further add that if the act of the accused cannot be even the remote cause for the death of the deceased. Thus, according to him, the fundamental requirement of "causing death" by an act on the part of the petitioner is completely lacking.
16.I fully concur with the said submission of the learned Counsel for the petitioner. In this regard, we may refer to the judgment of the Hon'ble Supreme Court in Suleman Rahiman Mulani and another v. State of Maharashtra (cited supra) upon which, the learned Senior Counsel has placed reliance. The petitioner therein was the owner of the Jeep which met with an accident killing a person. The Driver was prosecuted for offence under Section 304(A) I.P.C. The Driver had no valid driving licence to drive the vehicle. Therefore, the owner of the vehicle was also prosecuted for offence under Section 304(A) I.P.C. While dealing with the said case, the Hon'ble Supreme Court has held as follows:-
".......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. On the basis of the facts of that case, this Court held that the direct and proximate cause of the fire which resulted in seven deaths was the act of one of the workmen in pouring the turpentine too early and not the appellant's act in allowing the burners to burn in the particular room. In the present case, we do not know what was the proximate cause of the accident. We cannot rule out the possibility of the accident having been caused due to the fault of the deceased. The question whether appellant No.1 was proficient in driving a jeep or does conclude the issue. His proficiency in driving might furnish a defence, which a learner could not have, but the absence of proficiency did not make him guilty. The only question was whether, in point of fact he was not competent to drive and his incompetence was the cause of death of the person concerned."
17.A reading of the above judgment would make it clear that unless, it is shown that there is proximity between the death of the deceased and the alleged rash or negligent act, or atleast there is some proximity between these two it is not possible even to hold prima facie that the individual has committed an offence under Section 304(A) I.P.C.
18.It is the contention of the learned counsel for the second respondent that the act of the petitioner has got some proximity with the cause of the death of the deceased and therefore, the petitioner is liable to face the prosecution under Section 304(A) I.P.C. If this argument is accepted, the result would be disastrous. Let me illustrate the same in the following manner.
19.Let us assume that a Car is manufactured by "A" and sold to "B". "B" as the owner of the Car engaged "C" as the Driver of the Car who has got no valid driving licence. "C" drove the vehicle which met with an accident. It was found that there was some manufacturing defect. In this illustration, can it be stated that the manufacturer is also liable to face the prosecution under Section 304(A) I.P.C ? In my considered opinion, certainly not, because, absolutely, there is no proximity between the manufacturing of the Car and the cause of the death of the deceased. Similarly, in the case on hand, absolutely, I find no material to draw proximity between the alleged act of the petitioner and the cause of the death of the deceased and therefore, the prosecution of the petitioner for offence under Section 304(A) I.P.C., in the given set of facts, is a clear abuse of process of Court and the same is therefore, liable to be quashed.
20.In the result, the Criminal Original Petition is allowed and the case in C.C.No.6260 of 2006 on the file of the learned XIII Metropolitan Magistrate, Egmore, Chennai is quashed so far as it relates to the petitioner alone. The trial Court may proceed with the trial as against A.1.
10.10.2014 jbm Index: Yes Internet:Yes To
1.Inspector of Police, D6 Anna Square Police Station, Triplicane, Chennai.
2.The Public Prosecutor, High Court, Madras.
S.NAGAMUTHU,J jbm Crl.OP No.4518 of 2007 10.10.2014