Gujarat High Court
Rameshkumar Shankarlal Shah vs State Of Gujarat & on 29 January, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/304/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 304 of 2015
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RAMESHKUMAR SHANKARLAL SHAH....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR IH SYED, ADVOCATE WITH MR ANKIT B PANDYA, ADVOCATE for the
Applicant(s) No. 1
MR SP HASURKAR, ADVOCATE for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 29/01/2016
ORAL ORDER
1 By this writ application under Article 226 of the Constitution of India, the petitioner - original accused No.2 has prayed for the following reliefs:
"9 (a) To allow this petition,
(b) Your Lordship be pleased to issue a writ of mandamus or any other writ, order or direction, quashing and setting aside the FIR at Annexure A being ICR No.54 of 2014 registered with Lunawada Police Station, Mehisagar, qua the petitioner;
(c) Pending admission, final hearing and disposal of this petition, to stay the further proceedings of the FIR being ICR No.54 of 2014 registered with Lunawada Police Station, Mahisagar, qua the petitioner,
(d) To pass any other and further orders as may be deemed fit and proper."
2 It appears that on 13th May, 2014, the petitioner herein and two other co accused (accused No.1 and accused No.3) purchased the land bearing survey Page 1 of 27 HC-NIC Page 1 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER No.498, part - 21 admeasuring 4047 sq. mtrs. by way of a registered Sale Deed.
3 On 23th May 2014, the accused No.1 executed a Memorandum of Understanding for the development of the land with the accused No.4 and accused No.5. The accused No.1, thereafter, preferred an application with the Central Gujarat Electricity Company.
4 On 26th May, 2014, the accused No.1 preferred an application with the Central Electricity Company for shifting of the High Tension Electric Line passing over the property. On 9th June, 2014, the Electricity Company gave an estimate for shifting of the High Tension electric line to the accused No.1.
5 On 1st July, 2014, the accused No.1 made payment for shifting of the High Tension electric line to the Electricity Company.
6 The incident in question occurred on 19th July, 2014. It is the case of the prosecution that in the land in question, some excavation work was undertaken and the soil which was excavated was dumped in one part of the land. Since the soil was dumped, it became somewhat like a big heap. The deceased was passing through the land with his cattle. He entered the land with his cattle and is set to have climbed over the heap of soil which was dumped and got electrocuted by coming in contact with the High Tension electric line. On such accusation, the applicant herein is sought to be prosecuted for the offence of culpable homicide not amounting to murder punishable under Section 304 of the Indian Penal Code.
7 I have heard Mr. I.H. Syed, the learned counsel appearing for applicant, Mr. S.P. Hasurkar, the learned counsel appearing for the complainant and Mr. H.K. Patel, the learned Additional Public Prosecutor appearing for the respondent - State of Gujarat.
8 In my view, even if the entire case of the prosecution is accepted as true,
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none of the ingredients to constitute the offence of culpable homicide not amounting to murder under Section 304 of the Indian Penal Code is satisfied. I have considered this issue at length in the case of Girish Maganlal Pandya vs. State of Gujarat [Criminal Miscellaneous Application No.2942 of 2014 decided on 23rd March, 2015]. In the said decision, I have considered the fine distinction between Section 304A i.e. rash or negligent act and Section 304 i.e. culpable homicide not amounting to murder. I quote the relevant observations as under:
"15. The relevant portion of Section 304 of the IPC reads as under: Whoever commits culpable homicide not amounting to murder shall be punished with ... and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with ...... if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death."
16. A plain reading of the above Section makes it clear that it is in two parts. The first part of the Section is generally referred to as "Section 304 PartI", whereas the second part as "Section 304, PartII". It would thus, appear that if such bodily injury as is likely to cause death is intentionally caused and results in the death of the victim, the case would fall under PartI and not under PartII. Stated differently, PartII comes into play when death is caused by doing an act with the knowledge that it is likely to cause death and when such act is the infliction of a bodily injury, the infliction must not be intentional. A person who intentionally causes the bodily injury with knowledge that such act is likely to cause death must necessarily be a person who does an act with the intent to cause bodily injury likely to result in death.
17. The Makers of the Code observed:
"The most important consideration upon a trial for this offence is the intention or knowledge with which the act which caused death, was done. The intention to cause death or the knowledge that death will probably be caused, is essential and is that to which the law principally looks. And it is of the utmost importance that those who may be entrusted with judicial powers should clearly understand that no conviction ought to take place, unless such intention or knowledge can from the evidence be concluded to have really existed".
18. The Makers further stated:
Page 3 of 27HC-NIC Page 3 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER "It may be asked how can the existence of the requisite intention or knowledge be proved, seeing that these are internal and invisible acts of the mind? They can be ascertained only from external and visible acts. Observation and experience enable us to judge of the connection between men's conduct and their intentions. We know that a sane man does not usually commit certain acts heedlessly or unintentionally and generally we have no difficulty in inferring from his conduct what was his real intention upon any given occasion".
19. Let me now look into Section 304A of the IPC and compare it with Section 304 IPC.
20. Section 304A was inserted by the Indian Penal Code (Amendment) Act, 1870 (Act XXVII of 1870) and reads thus:
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.
21. The section deals with homicidal death by rash or negligent act. It does not create a new offence. It is directed against the offences outside the range of Sections 299 and 300, IPC and covers those cases where death has been caused without 'intention' or 'knowledge'. The words "not amounting to culpable homicide" in the provision are significant and clearly convey that the section seeks to embrace those cases where there is neither intention to cause death, nor knowledge that the act done will in all probability result into death. It applies to acts which are rash or negligent and are directly the cause of death of another person.
22. Thus, there is a fine distinction between Section 304 and Section 304A. Section 304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300, IPC. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section
300. Where intention or knowledge is the 'motivating force' of the act complained of, Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death.
23. In Empress v. Idu Beg, (1881) ILR 3 All 776, Straight, J. made the Page 4 of 27 HC-NIC Page 4 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER following pertinent observations which have been quoted with approval by various Courts including the Supreme Court:
"Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the 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 in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted".
24. Though the term 'negligence' has not been defined in the Code, it may be stated that negligence is the 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 reasonable and prudent man would not do. [See Mahadev Prasad Kaushik Vs. State of U.P AIR 2009 SC 125].
25. In the aforesaid context, I may quote with profit a decision of the Supreme Court in the case of Naresh Giri Vs. State of M.P., reported in (2008) 1 SCC (Cri.) 324. In the said case, a bus was going from Ahrauli towards Kailaras. While it was near a Railway crossing, an accident took place. A train hit the bus at the railway crossing. In the accident, the bus which was being driven by the appellant was badly damaged and as a result of the accident, several passengers got injured and two persons died. After completion of the investigation, chargesheet was filed. The charges were framed in relation to the offence punishable under Section 302 IPC and alternatively, under Sections 304, 325 and 323 of the Penal Code. Questioning the correctness of the charges framed, the revision petition was filed. The case of the appellant was that Section 302 IPC had no application to the facts of the case. The High Court rejected the plea of the appellant. The High Court was of the view that on the basis of the material available, the charges were rightly framed and the intention of the appellant could be gathered at the time when the evidence would be adduced. It was his case that at the best Section 304A IPC would be attracted.
26. In the aforesaid background, the Supreme Court made the following observations, which are worth taking note of.
7. Section 304A IPC applies to cases where there is no intention to cause death and no knowledge that the act done, in all Page 5 of 27 HC-NIC Page 5 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER probabilities, will cause death. This provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304A.
8. Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence, a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other. The death so caused is not the determining factor.
9. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edition) Volume 34 paragraph 1 (para 3) as follows :
"Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of Page 6 of 27 HC-NIC Page 6 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger, the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two".
10. In this context the following passage from Kenny's Outlines of Criminal Law, 19th Edition (1966) at page 38 may be usefully noted :
"Yet a man may bring about an event without having adverted to it at all, he may not have foreseen that his actions would have this consequence and it will come to him as a surprise. The event may be harmless or harmful, if harmful, the question rises whether there is legal liability for it. In tort, (at common law) this is decided by considering whether or not a reasonable man in the same circumstances would have realised the prospect of harm and would have stopped or changed his course so as to avoid it. If a reasonable man would not, then there is no liability and the harm must lie where it falls. But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence. The word 'negligence' denotes, and should be used only to denote, such blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in tort for damages. But it should now be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence. The common habit of lawyers to qualify the word "negligence" with some moral epithet such as 'wicked' 'gross' or 'culpable' has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is Page 7 of 27 HC-NIC Page 7 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER merely to use an expression in order to explain itself."
11. "Negligence", says the Restatement of the law of Torts published by the American Law Institute (1934) Vol. I. Section 28 "is conduct which falls below the standard established for the protection of others against unreasonable risk of harm". It is stated in Law of Torts by Fleming at page 124 (Australian Publication 1957) that this standard of conduct is ordinarily measured by what the reasonable man of ordinary prudence would do under the circumstances. In Director of Public Prosecutions v. Camplin (1978) 2 All ER 168 it was observed by Lord Diplock that "the reasonable man" was comparatively late arrival in the laws of provocation. As the law of negligence emerged in the first half of the 19th century it became the anthropomorphic embodiment of the standard of care required by law. In order to objectify the law's abstractions like "care" "reasonableness" or "foreseeability" the man of ordinary prudence was invented as a model of the standard of conduct to which all men are required to conform.
12. In Syed Akbar v. State of Karnataka, (1980) 1 SCC 30, it was held that "where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions ((1937) (2) All ER 552) simple lack of care such as will constitute civil liability, is not enough; for liability under the criminal law a very high degree of negligence is required to be proved. Probably, of all the epithets that can be applied 'reckless' most nearly covers the case."
13. According to the dictionary meaning 'reckless' means 'careless', 'regardless' or heedless of the possible harmful consequences of one's acts'. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognizing the existence of the risk and nevertheless deciding to ignore it. In R. v. Briggs (1977) 1 All ER 475 it was observed that a man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from the act but nevertheless continues in the performance of that act.
14. In R. v. Caldwell (1981) 1 All ER 961, it was observed that : Page 8 of 27 HC-NIC Page 8 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER "Nevertheless, to decide whether someone has been 'reckless', whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. If there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful consequence, the accused would not be described as 'reckless' in the natural meaning of that word for failing to address his mind to the possibility; nor, if the risk of the harmful consequences was so slight that the ordinary prudent individual on due consideration of the risk would not be deterred from treating it as negligible, could the accused be described as reckless in its ordinary sense, if, having considered the risk, he decided to ignore it. (In this connection the gravity of the possible harmful consequences would be an important factor. To endanger life must be one of the most grave). So, to this extent, even if one ascribes to 'reckless' only the restricted meaning adopted by the Court of Appeal in Stephenson and Briggs, of foreseeing that a particular kind of harm might happen and yet going on to take the risk of it, it involves a test that would be described in part as 'objective' in current legal jargon. Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective."
15. The decision of R. v Caldwell (supra) has been cited with approval in R v. Lawrence (1981) 1 All ER 974 and it was observed that :
"........Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it".
14A. Normally, as rightly observed by the High Court charges can be altered at any stage subsequent to the framing of charges. But the case at hand is one where prima facie Section 302 IPC has no Page 9 of 27 HC-NIC Page 9 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER application."
27. In the overall facts of the case, I have reached to the conclusion that the case on hand is not one of voluntary commission of offence against a person. The harmfulness inflicted intentionally or knowingly or caused directly and wilfully would attract Section 304 IPC. I am of the view that the mere act of driving a vehicle mindful of the fact that the same needed some immediate repairs would not be a criminal act. Primafacie it appears that the driver as well as the cleaner were in knowledge of the fact that there was a cavity beneath the seat on which unfortunately the deceased was sitting, and despite such knowledge the driver and the cleaner kept on plying the vehicle. However, that by itself would not suggest that they had knowledge that by plying a defective vehicle they were in all probability likely to cause death of any student travelling in the bus. Yes, they could definitely be held liable for a rash or a negligent act, punishable under Section 304A of the IPC, if ultimately necessary evidence in that regard comes on record at the time of the trial.
28. In the aforesaid context, the observations made by the Supreme Court in the case of Keshub Mahindra Vs. State of Madhya Pradesh (supra) are very relevant. I have quoted the observations made in paragraphs 19 and 20 in the earlier part of my judgment and therefore, I need not reiterate the same.
29. The above takes me to the question whether the applicant herein should face the charge under Section 304A of the IPC or not.
30.In a prosecution for an offence under Section 304A of the 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 the intervention of others' negligence. To put it in other words, whether the mere fact that the applicant herein as the Chief Administrator of the school failed to take appropriate care to ensure the safety of the students by permitting the defective bus to be plied by itself is sufficient to establish an offence under Section 304A IPC. The answer to this question will determine whether the applicant's act as alleged by the prosecution is the causa causans or has there been a causa interveniens, which has broken the chain of causation so as to make his act, though a negligent one, not the immediate cause or whether it amounts to an act of gross negligence or recklessly negligent conduct. In this context, it may be observed that in a case of this nature, the death of a small child aged four however, shocking and regrettable it may be, ought not to allow the mind to boggle while considering the aforesaid question.
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As to what is meant by causa causans, has been explained by the Supreme Court in the case of Sushil Ansal v. State through Central Bureau of Investigation, (2014)6 SCC 173, as under :
As to what is meant by causa causans we may gainfully refer to Blacks Law Dictionary (Fifth Edition) which defines that expression as under:
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 The expression proximate cause is defined in the 5th Edition of Blacks 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 vs. Great Atlantic & Pacific Tea Company, 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 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.
I may also refer to the earlier decision of the Supreme Court in Kurban Hussein Mohamedalli Rangawalla Vs. State of Maharashtra, AIR 1965 S.C. 1616. On the interpretation of Section 304A, holding:
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4. We may in this connection refer to Experor V. Omkar Rampratap, 4 Bom LR 679, where Sir Lawrence Jenkins had to interpret S. 304A and observed as follows:
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 anothers negligence. 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 India and is in our opinion the right view to take of the meaning of S.304A. 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 S.304A, 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 anothers negligence. The appellant must, therefore, be acquitted of the offence under S.304A. In my view, having regard to the materials on record, the incident in this case cannot be treated as a direct and proximate cause of the negligence, even if I assume one on the part of the applicant herein in not getting the defective bus repaired. Many other factors might have resulted in the unfortunate incident. It was the Driver and the Cleaner who were actually handling the bus. If little care would have been taken by the Cleaner to ensure that no student occupied the seat beneath which there was a cavity, then probably this incident would not have occurred. Therefore, the alleged negligence from the part of the applicant herein cannot be regarded as the causa causans. Although it may be a causa sine qua non.
31. It must be pointed out that rashness and negligence are not the same things. Mere negligence cannot be construed to mean rashness. There are degrees of negligence and rashness and in order to amount to criminal rashness or criminal negligence one must find that the rashness has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences. Criminal negligence is Page 12 of 27 HC-NIC Page 12 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER gross and culpable neglect, that is to say, a failure to exercise that care and failure to take that precaution which, having regard to the circumstances, it was the imperative duty of the individual to take. Culpable rashness is acting with consciousness that mischievous consequences are likely to follow although the individual hopes, even though he hopes sincerely, that such consequences may not follow. The criminality lies in not taking the precautions to prevent the happening of the consequences in the hope that they may not happen. The law, in my view, does not permit a man to be uncautious on a hope however earnest or honest that hope may be.
32. In the case of 'A. W. Lazarus v. The State', AIR 1953 All 72 (A), a Bench of the Allahabad High Court held, following the decisions in 'Empress of India v. Idu Beg', 3 All 776 (B) and 'H.W. Smith v. Emperor', AIR 1926 Cal 300 (C), that criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. It was pointed out that the criminality in such a case lay in running the risk of doing such an act with recklessness or indifference as to the consequences. The Bench further held that the criminal negligence under Section 304A, I.P.C. was gross and culpable neglect of failure to exercise that reasonable and proper care and to take precautions to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances attending the charge, it was the imperative duty of the accused person to have adopted. Another important element which goes to make the offence is that the act of the accused must be found to be the immediate cause of the death, that is to say, the act and the death must be 'causa causans'.
33. I may here refer to a very instructive judgment of the House of Lords in 'Andrews v. Director of Public Prosecutions', 19372 All ER 552 (D). In this case Lord Atkin reviewed several of the earlier cases and delivered the leading opinion of the House. Lord Atkin pointed cut that the connotations of 'mens rea' are not helpful in distinguishing between degrees of negligence, nor do the ideas of crimes and punishments in themselves carry a jury much further in deciding whether, in a particular case, the degree of negligence shown is a crime and deserves punishment. According to Lord Atkin, "the principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established."
34. Lord Atkin observed that the most appropriate epithet which can be applied to such cases is "reckless". He further pointed out that "it is difficult Page 13 of 27 HC-NIC Page 13 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER to visualise a case of death caused by "reckless" driving, in the connotation of that term in ordinary speech, which would not justify a conviction for manslaughter, but it is probably not allembracing, for "reckless" suggests an indifference to risk, whereas the accused may have appreciated the risk, and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction."
35. In an earlier case Lord Ellenborough had pointed out that to substantiate the charge of manslaughter the prisoner must be found to have been guilty of criminal misconduct arising either from the grossest ignorance or the most criminal inattention. Lord Atkin explained this observation of Lord Ellenborough in these words :
"The word "criminal" in any attempt to define a crime is perhaps not the most helpful, but it is plain that Lord Ellenborough meant to indicate to the jury a high degree of negligence."
36. Attention was also drawn by Lord Atkin to a passage in a considered judgment of Lord Hewart, Lord Chief Justice the passage to which attention was drawn was this:
"In a criminal Court, on the contrary, the amount and degree of negligence are the determining questions. There must be 'mens rea'."
But, as was pointed out by Lord Atkin, the connotation of mens rea do not always prove helpful in determining the guilt of an accused in a particular case.
37. The essence of criminal liability under Section 304A IPC is culpable rashness or negligence and not any rashness or negligence. The difference between the two is what marks off a civil from a criminal liability. The distinction is often an intricate matter and depends on the particular time, place and circumstances. In civil law negligence means inadvertence, which, if it resulted in injurious consequences to person or property, may involve liability to compensate for the damage. In Halsbury's Laws of England, 3rd Edn. Vol. 28, paragraph 1, it is stated :
''Negligence is a specific tort and in any given circumstances is the failure to exercise that care with which the circumstances demand. What amounts to negligence depends on the facts of each particular case and the categories of negligence are never closed. It may consist in omitting to do something which ought to be done or in doing something which ought to be done, either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be Page 14 of 27 HC-NIC Page 14 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the accompanying circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury."
38. The consequence flows from a state of mind which is blank or devoid of any advertence, and the liability for such consequence is to be judged from the standpoint of reasonable foreseeability and the failure to exercise the care which such foreseeability necessarily implies. That I conceive to be the principle of tortious liability for negligence. Kenny in his "Outlines of Criminal Law'' at page 29 observes, "But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence. The word 'negligence', therefore, in our jurisprudence is used to denote blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury, who may sue him in tort for damages. But it should now be recognised that at common law there is no criminal liability for harm thus caused by inadvertence.................The truth may be that he did not foresee the consequences as a reasonable man would have done, and that he was negligent in the true sense of the word, and therefore civilly, although not criminally, liable."
39. Kenny further points out that for criminal liability for negligence, there must be something more than such blameworthy inadvertence. This aspect is also adverted to in paragraph 1374 of Halsbury's Laws of England, 3rd Edn. Volume 10, "A higher degree of negligence is necessary to render a person guilty of manslaughter than to establish civil liability against him. Mere carelessness is not enough. Negligence in order to render a person guilty of manslaughter must be more than a matter of compensation between subjects; it must show such disregard for the life and safety of others as to amount to a crime against the State. Whether negligence is to be regarded as of such a nature is a question for the jury, after they have been properly directed by the Judge as to the standard to be applied, and depends on the facts of the particular case. The number of persons affected by a single act of negligence does not affect the decree of negligence."
40. While on this aspect, it is also instructive to refer to two English cases. Rex v. Williamson, 18073 C and P 635, was a case where a man who Page 15 of 27 HC-NIC Page 15 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER practised as an accoucheur, owing to a mistake in his observation of the actual symptoms, inflicted on a patient terrible injuries from which she died. After pointing out that in a civil case once negligence was proved, the degree of negligence was irrelevant, Lord Ellenborough, the Lord Chief Justice, said.
"In a criminal court, on the contrary, the amount and degree of negligence are the determining questions. There must be mens rea........ In explaining to juries the test which they should apply to determine whether the negligence in a particular case, amounted or did not amount to a crime, Judges have used epithets such as 'culpable', 'criminal', 'gross', 'wicked', 'clear', 'complete'. But whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others, as to amount to a crime against the State and conduct deserving punishment."
41. Mere negligence or rashness is, therefore, not enough to bring a case within the ambit of Section 304A I. P. C. Negligence or rashness proved by evidence must be such as should necessarily carry with it a criminal liability. Whether such liability is present may depend on the degree of culpability having regard in each case to the particular time, place and circumstances. If it is merely a case of compensation or reparation for injury or damage caused to a person or property, it is clearly not punishable under either of the sections. The culpability to be criminal should be such as concerns not merely the person injured or property damaged but the safety of the public on the road. But the nature and extent of the injury or damage will be irrelevant in fixing criminal liability for negligence under the sections.
42. I may quote with profit the case of Ambalal D. Bhatt Vs. State of Gujarat, reported in (1972) 3 SCC 525, wherein the following observations made by the Supreme Court are worth taking note of.
8. The learned Advocate contends that even if one batch number was given to several lots prepared on 121162 as was done in respect of batch no 211105, the evidence discloses that this was not an isolated case but such practice was uniformly followed in S. C. L. Ltd. for which the appellant could not alone be held liable. In the circumstances the noncompliance with the rules for giving a batch number to every lot does not make the act of the appellant the causa causans of the death of the persons who were injected with glucose saline prepared by him because it was not only the duty of the Analyst Prabhakaran to test the material before they are issued Page 16 of 27 HC-NIC Page 16 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER to the injection department but also to test the solution in such a way as would trace lead nitrate in the sodium chloride content of the solution. As Prabhakaran had not applied the proper test and that too knowing fully well that several lots were given one batch number, he cannot be absolved of his responsibility to take representative samples for testing them instead of testing only one bottle out of 450 bottles comprising batch no. 211105. On this premise it is contended that though section 304A covers various fields of activity, an offence is committed only if a person charged is shown to have neglected to take such action as he is reasonably expected to take to avoid injury to others and that such reasonable steps that are expected to be taken by him should show that there was a failure to take such elementary steps it was necessary for him to take. Inasmuch as in all cases under section 304A there is a casual chain which consists of many links, it is only that which contributes to the cause of all causes, namely, the causa causans and not causa sine qua non which fixes the capability. In other words, it is submitted that it is not enough for the prosecution to show that the appellant's action was one of the causes of death. It must show that it is the direct consequence, which in this case has not been established. On the other hand, according to the learned Advocate the appellant is separated by two important steps which intervene before the glucose saline is sold for being administered to the needy. These are : (1) that not only should the materials be tested but the solution should be tested properly to detect the dangerous components of the preparation which was the duty of the Chief Analyst; and (2) that the production report and the analysis report have to be seen by the Production Superintendent who is to satisfy himself that proper tests have been carried out before certifying them for sale. The persons who are directly responsible for the saline solution to be certified for sale are the Chief Analyst as well as the Production Superintendent and not the appellant.
9. It is, however, the case of respondent State that had the appellant not given a single batch number to all the four lots when he prepared the offending glucose saline, the analysis by the Chief Analyst would analysis by the Chief Analyst would have certainly discovered the heavy deposits of lead nitrate in the sodium chloride and the lot which contained this would have been rejected. As the appellant has been negligent in conforming to the rules, the deaths were the direct consequence of that negligence.
10. 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 Page 17 of 27 HC-NIC Page 17 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER 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 appellant for contravention of the provisions of the Act and the Rules would itself 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 121162 in preparing batch no. 211105 was the cause of deaths and whether those deaths were a direct consequence of the appellant's 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 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 Mohemmedali Rangwala v. State of Maharashtra, 19652 SCR 622 = (AIR 1965 SC 1616), 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 froth out of the barrels. In Suleman Rahiman Mulani v. State of Maharashtra (1968) 2 SCR 515 = (AIR 1968 SC 829) 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 by itself was no sufficient to warrant a conviction under section 304A. It would be different if it can be established as in the case of Balachandra v. State of Maharashtra, (1968) 3 SCR 766 = (AIR 1968 SC 1319) that deaths and injuries caused by the contravention of a prohibition in respect of the substance 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 causa causans.
11. Bearing these principles in view, what we have to see is :
(1) whether there was contravention of the rule? If so, to what extent that contravention by the appellant contributed to the non discovery of lead nitrate in sodium chloride content of the glucose Page 18 of 27 HC-NIC Page 18 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER saline in Batch No. 211105? (2) Whether sodium chloride for which the said solution was prepared was obtained by the appellant from sources other than the Stores of S. C. I. Ltd.? and (3) Whether the method adopted in testing the said batch by Prabhakaran would have, but for the contravention of the rules requiring the giving of one batch number to each lot, detected the presence of lead nitrate when he analysed samples of the offending batch of glucose saline prepared by the accused. The answers to these questions will determine whether the appellant's act is the causa causans or has there been a cause interveniens which has broken the chain of causation so as to make his act, though a negligent one, not the immediate cause or whether it amounts to an act of gross negligence or recklessly negligent conduct. In this context it may be observed that in a case of this nature where as many as 12 persons lost their lives as a result of the parenteral administration of the drug comprised in Batch No. 211105 prepared by the appellant, those deaths however shocking and regrettable they may be, ought not to allow the mind to boggle while appreciating the evidence which must necessarily be free from any such consideration."
43. I may also quote with profit a decision of the Supreme Court in the case of Balwant Singh Vs. State of Punjab, reported in 1994 Supp (2) SCC
67. The following observations of the Supreme Court are worth taking note of.
"8. Then the question would be whether an offence under Sec. 304 A, I.P.C, is made out? The provisions of this Section apply to cases where there is no intention to cause death and no knowledge that the act done in all probabilities will cause death. Therefore this provision is directed at offences outside the range of Ss. 299 and 300, I.P.C. and obviously contemplates those cases into which neither intention nor knowledge enters. The words "not amounting to culpable homicide" in the Section are very significant and it must therefore be understood that intentionally or knowingly inflicted violence directly and wilfully caused is excluded. The Section applies only to such acts which are rash or negligent and are directly the cause of death of another person. In other words, a rash act is primarily an over hasty act as opposed to a deliberate act but done without due care and caution. Then the question whether the conduct of the accused amounted to culpable rashness or negligence depends on the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient and this depends on the circumstances in each case."Page 19 of 27
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44. In a very recent pronouncement of the Supreme Court in the case of Dr. P.B Desai Vs. State of Maharashtra and anr., reported in AIR 2014 SC 795, the Supreme Court has explained in details as to when criminal liability would be attracted in cases of medical negligence. It is no doubt true that the Supreme Court was dealing with an issue whether the role of the appellant as a doctor in that case amounted to a rash or a negligent act as to endanger the life of the patient. The Supreme Court made the following observations: "(4) Breach of Duty to Take Care: Consequences
42. If the patient has suffered because of negligent act/ omission of the doctor, it undoubtedly gives right to the patient to sue the doctor for damages. This would be a civil liability of the doctor under the law tort and/or contract. This concept of negligence as a tort is explained in Jacob Mathews v. State of Punjab and Another 2005(6) SCC1, in the following manner:
10. The jurisprudential concept of negligence defines any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well stated in the Law of Torts, Ratanlal & Dhirajlal (24th Edn., 2002, edited by Justice G.P. Singh).
Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property&. The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the formers conduct within the scope of the duty; (2) breach of the said; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort.
43. Such a negligent act, normally a tort, may also give rise to criminal liability as well, though it was made clear by this Court in Jacobs Case (supra) that jurisprudentially the distinction has to be drawn between negligence under Civil Law and negligence under Criminal Law. This distinction is lucidly explained in Jacobs Case, as can be seen from the following paragraphs:
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12. The term negligence is used for the purpose of fastening the defendant with liability under the civil law and, at times, under the criminal law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence up to the modern times. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence.
In R. v. Lawrence Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell3 and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being subjective or objective, and said: (All ER p. 982ef) Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting recklessly if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it.
13. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimising violations, may be motivated by thrillseeking. These are clearly reckless.
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14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions stated: (All ER p. 556 C) Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established.
Thus, a clear distinction exists between simple lack of care incurring civil liability and very high degree of negligence which is required in criminal cases. In Riddell v. Reid4a (AC at p. 31) Lord Porter said in his speech A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability.
15. The forequoted statement of law in Andrews has been noted with approval by this Court in Syad Akbar v. State of Karnataka. The Supreme Court has dealt with and pointed out with reasons the distinction between negligence in civil law and in criminal law. Their Lordships have opined that there is a marked difference as to the effect of evidence viz. the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
44. Thus, in the civil context while we consider the moral implications of negligent conduct, a clear view of the state of mind of the negligent doctor might not require strictly. This is for the reason the law of tort is ultimately not concerned with the moral culpability of the defendant, even if the language of fault is used in determining the standard of care. From the point of view of civil law it may be appropriate to impose liability irrespective of moral blameworthiness. This is because in civil law two questions are at issue: Was the defendant negligent? If so, should the defendant Page 22 of 27 HC-NIC Page 22 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER bear the loss in this particular set of circumstances? In most cases where negligence has been established, the answer to the second question will be in the affirmative, unless the doctrine of remoteness or lack of foresee ability militates against a finding of liability, or where there is some policy reason precluding compensation. The question in the civil context is, therefore, not about moral blame, even though there will be many cases where the civilly liable defendant is also morally culpable.
(5) Criminal Liability : When attracted
45. It follows from the above that as far as the sphere of criminal liability is concerned, as mens rea is not abandoned, the subjective state of mind of the accused lingers a critical consideration. In the context of criminal law, the basic question is quite different. Here the question is: Does the accused deserve to be punished for the outcome caused by his negligence? This is a very different question from the civil context and must be answered in terms of mens rea. Only if a person has acted in a morally culpable fashion can this question be answered positively, at least as far as non strict liability offenses are concerned.
46. The only state of mind which is deserving of punishment is that which demonstrates an intention to cause harm to others, or where there is a deliberate willingness to subject others to the risk of harm. Negligent conduct does not entail an intention to cause harm, but only involves a deliberate act subjecting another to the risk of harm where the actor is aware of the existence of the risk and, nonetheless, proceeds in the face of the risk. This, however, is the classic definition of recklessness, which is conceptually different from negligence and which is widely accepted as being a basis for criminal liability.
45. For the foregoing reasons, I am of the view that so far as the applicant herein is concerned, he stands on a different footing as compared to the other accused. The only material against him in the entire chargesheet is a statement to the effect that in the periodical meetings between the parents and the management of the school, the issue as regards the poor condition of the buses being plied to pick up and drop the students was discussed, but the same was not paid heed to. On such allegations, the applicant herein is sought to be put to trial for the offence of culpable homicide not amounting to murder and in the alternative for the offence under Section 304A IPC. In my view, the applicant should not be asked to face the trial either for the offence of a rash or a negligent act punishable under Section 304A of the IPC or Section 304 IPC. The persons who could be said to be directly responsible for the unfortunate death of the student are the driver of the vehicle, including the cleaner. This observation, of Page 23 of 27 HC-NIC Page 23 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER course, is primafacie and subject to the evidence that may be led at the time of the trial. However, the applicant's act of not paying heed to the requests made by the parents regarding the necessary repairs to be carried out in the buses cannot be said to be the causa causans, but there was a cause interveniens, which broke the chain of causation so as to make the act of the applicant though a negligent one, not the immediate cause.
46. At this stage, I may deal with the decision relied upon by Mr. Dabhi, the learned APP. The Supreme Court in the case of State of Maharashtra vs. Salman Salimkhan & Anr. (supra), had the occasion to consider an identical issue. In the said case, the respondent was originally charged of an offence punishable under section 304A, 279, 337, 338, 427, IPC and section 134(a)(b) read with sections 181 and 185 of the Motor Vehicles Act, 1998 as also under section 66(1)(b) of the Bombay Prohibition Act. All these offences are triable by a court of Magistrate of competent jurisdiction. The chargesheet, at a later stage, came to be modified based on the additional statement of th complainant, and instead of section 304A, IPC, section 304, Part II, IPC was substituted which is an offence exclusively triable by a Court of Session. The learned Magistrate, who had taken cognizance of the offence, committed the said case to the Court of Session for trial. On the framing of the charge under section 304, Part II, IPC, the accused filed Criminal Application No.463 of 2003 in the Court of Session alleging that the facts as narrated in the complaint did not constitute an offence punishable under section 304, Part II, IPC and if at all, only a charge for an offence punishable under section 304A could be framed against him, apart from other offences triable by the Court of Magistrate. The said application came to be rejected by the Sessions Court and the Sessions Judge, thereafter, proceeded to frame charges, one of which, was for an offence punishable under section 304, Part II, IPC.
47. Being aggrieved by the dismissal of his application and the consequential framing of charge under section 304, Part II, IPC, the accused preferred a criminal application under section 482 of the Code before the Criminal Appellate Bench of the High Court of Judicature at Bombay. The High Court allowed the said application and quashed the order passed by the learned Sessions Judge framing charge under section 304, Part II, IPC against the accused while it maintained the other charges and directed the Magistrate to frame de novo charges under various sections including one under section 304A, IPC. 36. The State of Maharashtra, feeling dissatisfied, filed special leave petition before the Supreme Court and challenged the order passed by the High Court. The Supreme Court made the following observations:
Mr. Harish N Salve, learned senior counsel representing the respondentaccused, per contra, contended that from a plain reading of the complaint which is the only material available at Page 24 of 27 HC-NIC Page 24 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER this stage for the purpose of framing charges, no reasonable person could ever have come to the conclusion that the respondent ever had any knowledge that by his act of driving the motor vehicle, he would cause such an act which would lead to the death of any person. He further submitted that from the material on record itself it is clear that if at all any act of the respondent is responsible for the death of the victim same cannot be termed anything other than a rash and negligent act punishable under section 304A. Learned senior counsel further submitted that since the learned Sessions Judge while rejecting the application of the petitioner filed before it in altering the charge from section 304 Part II to 304A, IPC, had itself passed a lengthy order which indicated that the said court had formed a conclusive opinion as to the nature of offence which definitely would have prejudiced the case of the respondent in the trial, the High Court was left with no choice but to decide this question as to the nature of offence if at all committed by the respondent.
But for the fact that two courts below i.e. the Sessions Court and the High Court having gone into this issue at length and having expressed almost a conclusive opinion as to the nature of offence, we would not have interfered with the impugned order of the High Court because, as stated above, neither of the sides would have been in any manner prejudiced in the trial by framing of a charge either under section 304A or section 304 Part II, IPC except for the fact that the forum trying the charge might have been different, which by itself, in our opinion, would not cause any prejudice. This is because at any stage of the trial it would have been open to the concerned court to have altered the charge appropriately depending on the material that is brought before it in the form of evidence. But now by virtue of the impugned judgment of the High Court even if in the course of the trial the Magistrate were to come to the conclusion that there is sufficient material to charge the respondent for a more serious offence than the one punishable under section 304A, it will not be possible for it to pass appropriate order. To that extent the prosecution case gets preempted.
We are of the opinion that though it is open to a High Court entertaining a petition under section 482 of the Code to quash charges framed by the trial court, same cannot be done by weighing the correctness or sufficiency of evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial. By relying upon the decisions of the apex Court most Page 25 of 27 HC-NIC Page 25 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER of which were with reference to appeals arising out of convictions, we think the High Court was not justified in this case in giving a finding as to the nonexistence of material to frame a charge for an offence punishable under section 304 Part II, IPC, therefore, so far as the finding given by the High Court is concerned, we are satisfied that it is too premature a finding and ought not to have been given at this stage. At the same time we are also in agreement with the arguments of learned counsel for the respondents that even the Sessions Court ought not to have expressed its views in such certain terms which indicates that the Sessions Court had taken a final decision in regard to the material to establish a charge punishable under section 304 Part II, IPC.
Therefore, we think it appropriate that the findings in regard to the sufficiency or otherwise of the material to frame a charge punishable under section 304, Part II, IPC of both the courts below should be set aside and it should be left to be decided by the court trying the offence to alter or modify any such charge at an appropriate stage based on material produced by way of evidence.
The next question which then requires our consideration is whether in view of our above finding, the charge framed by the Sessions Judge for an offence punishable under section 304 Part II, IPC be sustained or one under section 304A as has been done by the High Court, should be retained ?
We have been informed that pursuant to the judgment of the High Court, the Metropolitan Magistrate, 12th Court, Bandra, Mumbai, has already framed fresh charges under section 304A and other provisions mentioned hereinabove and the trial has commenced. Since any interference at this stage would not further the cause of justice and would lead only to delay the course of justice, we think it appropriate that the proceedings before the said Magistrates Court should continue and the trial should proceed on the basis of the charges framed by it but we make it very clear that at any appropriate stage if the Magistrate comes to the conclusion that there is sufficient material to charge the respondent for a more serious offence than the one punishable under section 304A, he shall proceed to do so without in any manner being hindered or influenced by the observations or findings of the High Court in the impugned order or by the order of the Sessions Court which framed the charge punishable under section 304 Part II, IPC. Such decision of the Magistrate shall be purely based on the material brought in evidence at the trial."
9 In the result, this application is allowed. The First Information Report Page 26 of 27 HC-NIC Page 26 of 27 Created On Tue Feb 02 02:04:00 IST 2016 R/SCR.A/304/2015 ORDER being C.R. No.I54 of 2014 registered with the Lunawada Police Station, District:
Mahisagar for the offence punishable under Sections 304, 120B read with 114 of the Indian Penal Code is hereby ordered to be quashed so far as the applicant herein is concerned. Rule is made absolute qua the applicant herein. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 27 of 27 HC-NIC Page 27 of 27 Created On Tue Feb 02 02:04:00 IST 2016