Madras High Court
Mohan vs / on 9 February, 2023
Author: V.Sivagnanam
Bench: V.Sivagnanam
Crl.R.C.No.148 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.02.2023
CORAM
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
Crl.R.C.No.148 of 2023
and
Crl.M.P.No.1140 of 2023
Mohan ... Petitioner
/vs/
State rep by
The Sub Inspector of Police,
Keezhkuppam Police Station,
Villupuram District.
(Crime No.126/2013) ... Respondent
PRAYER : Criminal Revision Case has been filed under Section 397 r/w.
401 Cr.P.C. to call for the records and set aside the order dated 30.11.2022
passed in Crl.M.P.No.2162/2017 in Old C.C.No.247 of 2014 on the file of
the Judicial Magistrate, Kallakurichi and renumbered in Crl.M.P.No.1711
of 2022 in New C.C.No.23 of 2017 pending on the file of the Judicial
Magistrate No.II, Kallakurichi, Villupuram District.
For Petitioner ... Mr.R.Rajarathinam, Sr.counsel
For Respondent ... Mr.V.Meganathan
Government Advocate (Crl. Side)
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Crl.R.C.No.148 of 2023
ORDER
This Criminal Revision Case has been filed challenging the impugned order dated 30.11.2022 passed in Crl.M.P.No.2162/2017 in Old C.C.No.247 of 2014 on the file of the Judicial Magistrate, Kallakurichi and renumbered as Crl.M.P.No.1711 of 2022 in New C.C.No.23 of 2017 pending on the file of the Judicial Magistrate No.II, Kallakurichi, Villupuram District.
2. The facts of the case is that in Eriyur village, the Village Administrative Officer, Tmt.Kausalya gave a complaint to the respondent police on 22.06.2013 with regard to blast occurred in a quarry at Ulagiyanallur village in Survey Nos.30/1, 3, 4, 5A1, 8A, 10 and 34/6 in the name of Amman Granite owned by Ramasamy. In the said blast two workers, who were working in the granite quarry have died and one got injured. Based on the complaint, a case has been registered in Crime No.126 of 2013 for the offence under Sections 286, 337, 338, 304(A) IPC r/w.Section 9B(1)(b) Indian Explosive Act against one one Mayilvahanan and Sarfudeen. After investigation, final report has been filed and taken in C.C.No.247 of 2014, on the file the learned Judicial Magistrate, Page 2 of 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.148 of 2023 Kallakurichi. After examination of PW.1, the learned Government Advocate (Crl.Side) filed a petition in C.M.P.No.1711 of 2022 under Section 319 Cr.P.C., to include the petitioner (proposed accused A4) in this case as an accused. The Trial Court vide its order dated 30.11.2022 implicated the petitioner as an accused in this case. It is put in challenge in this revision petition.
3. The learned counsel for the petitioner submitted that on 22.06.2013, at about 4.30 p.m., in the quarry site belonging to the proposed accused No.3 viz. Ramasamy, the labourers were drilling the big stones which were already blasted on 15.06.2013 and at that time, the heat generated from the rocks which already blasted and ignited the remaining explosive powder found in the blasted rock, caused the blast once again, due to which one person injured and two persons have died on their way to hospital. Admittedly, the petitioner herein who is a licensed holder to sell the explosives had supplied the explosives to the said granite company on 15.06.2013 and the rocks were blasted on 15.06.2013 itself. Since the drilling work in the blasted rocks could not be carried out immediately as Page 3 of 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.148 of 2023 there must be cooling time between the date of blasting of the rock and for drilling of the blasted rocks, they had to drench the blasted rocks in water during the cooling period and kept under the supervision of the supervisors viz. A1 (Manager) and A2 (Mine maid). After cooling of the rocks. the drilling work was carried out only on 22.06.2013 viz. after a lapse of one week, and during the drilling, the rocks were suddenly blasted and caused fatal accident.
4. The learned counsel for the petitioner further submitted that the charge sheet was filed against A1 and A2 deleting the name of the petitioner herein in the charge sheet since the petitioner is not responsible for the occurrence took place on 22.06.2013. The incident was taken place due to the negligence of A1 and A2. He further submitted that there is no material evidence to implicate this petitioner as an accused, but the Trial Court has failed to consider the principles laid down by the Hon'ble Supreme Court in a case Hardeep Singh Vs. State of Punjab and Others reported in (2014) 3 SCC 92 had added this petitioner as a proposed accused. There is no material to impose criminal liability under Section Page 4 of 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.148 of 2023 304 A I.P.C., against the petitioner / accused as there is no material to show that any act of the petitioner had directly or indirectly resulted in the accident. To support his arguments he placed the judgment of the Hon'ble Supreme Court of India in a case of Kurban Hussein Mohamedalli Bangawalla Vs. State of Maharashtra reported in AIR 1965 Supreme Court 1616. Thus pleaded to set aside the impugned order and discharge the accused from the criminal proceedings.
5. The learned counsel for the petitioner contended that the proposed accused are originally included as an accused in the case registered by the respondent police in pursuant to the complaint given by the Village Administrative Officer. The nature of the complaint against the accused is that he was only selling the explosives to the Quarry for blasting rocks in the Quarry. To that effect, he made an agreement with the owner of the property/Quarry on 11.06.2011. As per the terms of agreement, the accused undertakes the responsibility of blasting rocks alone. In this case on 15.06.2013, by implanting explosives, rocks are blasted. The alleged occurrence took place after one week i.e., on 22.06.2013 at about 4.30 Page 5 of 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.148 of 2023 p.m., in the Quarry site while the labourers were drilling, ignited by the explosive powder left behind in the stones caused the blast and thereby three persons were injured. Subsequently, two persons out of three have died on their way to the hospital. After blasting the rocks, the accused had no role at all in the said cause of action after blasting the rocks in the Quarry. Therefore, there is no negligence on the part of the accused. Apart from this, there is no material collected by the prosecution to tag the accused for the offences under Sections 286, 337, 338, 304(A) IPC r/w.Section 9B(1)(b) Indian Explosive Act. Therefore, impleading the accused along with the other accused in the criminal proceedings for the offence is against the principle laid by the Hon'ble Supreme Court of India in a case Hardeep Singh Vs. State of Punjab and Others reported in (2014) 3 SCC 92.
6. The learned counsel for the petitioner further contended that as per Section 319 Cr.P.C., the power can be exercised to proceed against the person only where the strong and cogent evidence is available and not in any casual and cavalier manner. In this case, there is no material against Page 6 of 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.148 of 2023 the proposed accused. The Trial Court added the accused as the proposed accused on the ground that the accused is only the supplier of explosives to the Quarry. Further, the Trial Court observed that he is responsible for the residue of the explosives kept in the mother rock for blasting. In view of the said negligence, whether the offence is made out for the said act, can be decided only after trial. This observation is against the principle of Hardeep Singh case. Therefore, the order of the Trial Court is unsustainable and against the settled principle of the Hon'ble Supreme Court of India. Hence, he pleaded to set aside the impugned order and allow the Criminal Revision Case.
7. The learned Government Advocate (Crl.Side) for the respondent objected the arguments placed by the learned counsel for the petitioner. He contended that PW.1/VAO had deposed before the Court clearly about the implication of the proposed accused and involvement of the accused in the said offence. Admittedly, he is the supplier of the explosives to the Quarry and he planted the explosives in the Quarry for the blast that took place on 15.06.2013. This occurrence took place on 22.06.2013 due to the residue Page 7 of 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.148 of 2023 of the explosives kept in the mother rock. It is the duty of the accused, who implanted the explosives to verify that any residue are kept in the mother rock. On his failure, he is also responsible for the occurrence. Hence there is no ground to interfere with the order passed by the Trial Court and he has also to be tried along with the other accused.
8. I have considered the submissions made by the learned counsel and perused the materials on record.
9. On a perusal of the records, it reveals that on 22.06.2013 at about 4.30 p.m., while the labourers were drilling the mother rock in the Quarry site, with sudden ignition of the explosive powder remained in the stones blasted and due to which, three persons were injured. Out of three injured persons, two have died on their way to the hospital. Though the respondent police, in pursuant to the complaint given by the Village Administrative Officer, registered the case against this petitioner also, subsequent to the investigation, they have found that the proposed accused are having only entrusted with the implant of the explosives to blast the rock in the Quarry and thereafter, they have not worked at all in the Quarry, the explosive was Page 8 of 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.148 of 2023 implanted on 15.06.2013 and the rock was also blasted on the same day, but the occurrence took place on 22.06.2013. The petitioner was not arrayed as an accused. The agreement copy between the Quarry owner and the proposed accused dated 11.02.2011 has also been produced. In the agreement clause, it is clearly stated that the blast work alone is entrusted to the petitioner. The terms of agreement reads as follows:
“This agreement entered into at Salem on this day of 11 June 2011 between M/s.Amman Granites, Muthugounder colony, Harur-(TK), Dharmapuri- Dist. FIN:33983340475 hereinafter referred to as part of the First Part and Sri.Krishnaa Explosives, "Sri Vishnu Kiruba, Plot No.7, Indane Nagar Extension, Jagir Reddipatti, Salem-636 302, hereinafter referred to as part of The Second part.
The party of first part is operating Granite Quarry and is mining Black Granite in the area of over an extent of 1.52.0 Hect in survey Nos 32/5A2, 32/5B, 32/5C, 32/5D & 33/7 at Ulagiyanallur village, Kallakurichi Tk, Villupuram-Dist.
Whereas the part of the First Part wants blasting to be dore at Quarry to excavate the Granite Page 9 of 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.148 of 2023 Blocks. The blasting work is so intensive and largu that the part of the first part has decided to entrust the work involved to the party of the Second Part on contract basis is as follows:
The Party of the first part will allot the blasting operations in the above said quarry to the party of the Second Part who is responsible for blasting rocks and also making his own arrangements for the explosives and exploding equipment: required for the work. The entire blasting work in the above quarry and the possessment of the blasting equipments will be handled by the party of the second part having valid explosives Licence No.E/SC/TN/22/515(E47493) and the Explosives Magazine situated at Kadiripuram Village, Harur TK, Dharmapuri-Dt issued by the Joint Chief Controller of Explosives, South Circle, Chennai and he hereby undertake the responsibility for the work entrusted.
Payment will be made periodically by the party of the first part for the quantity used, explosives consumed and hours and time of the exploding equipments put into use.
Calculations will be made and settlement will Page 10 of 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.148 of 2023 be arrived a every month. The rates for the items of work will as mutually agreed as marginal cost which Includes cost of Explosives, Transportation cost and other charges for blasting work. This agreement is made for all blasting done in the said quarry.”
10. Further the fact reveals that the proposed accused is a licenced holder to sell the explosives to the owner of the quarry (proposed 3rd accused) who had obtained valid permit to blast the rocks and doing granite quarry business, mining black granite in the area of over an extent of 1.52 Hectare in Survey Nos. 32/5A2,32/5B, 32/5C,32/5D and 33/7 at Ulagiyanallur village, kallakurichi taluk, Villupuram District. On 15-06-
2013, he has supplied explosives to Amman Granite Quarry for the purpose of blasting rocks and they have furnished necessary receipts with regard to the same. On 15.06.2013, he was not present in the site. Similarly on 22.06.2013 also, he was not present at the quarry site and he was looking after his business in his place of business. He further states that the unfortunate incident happened on 22.06.2013 at about 4.30 p.m in the quarry site. As per the charge sheet that while the labourers were drilling ignited the explosive powder remaining in the stones caused the blast and Page 11 of 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.148 of 2023 injured three persons and subsequently two persons out of three died enroute to hospital and it is the case of the prosecution and all the witnesses stated the same thing. Initially the proposed 4th accused was cited as 3rd accused in the complaint and FIR and after investigation, his name was dropped on 24.06.2013, since he has no role in the accident. The complainant/VAO was examined as PW-1 on 27.03.2015, who has given the complaint on 23.06.2013 at about 10.30 a.m. On the basis of the information furnished by one kolanchi, the assistant to VAO and in chief- examination of PW-1, she told that the proposed 3rd accused is the owner of the quarry and he is the supplier of the explosive to the quarry after that the prosecution filed this petition to implead the 3rd accused Ramasamy only and the Court included him as proposed accused-4.
11. The said quarry owner has engaged the Manager, supervisors and Mine maid to do the blasting operation. Neither the proposed accused was having the explosives in his possession nor did any overact on the fateful day. The investigation officer did not implicate the proposed accused in any of the alleged offences after investigation. He has not violated any of Page 12 of 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.148 of 2023 the licence conditions and there is no such allegation in the charge sheet. As per the agreement, the blasting work, that is, blasting rocks is the responsibility of the sri krishna explosives. The explosives were supplied and blasted on 15-06-2013. As per the acknowledgement given by the 2nd accused, Mr.Sharifuddin, the blaster ,all the quantity of explosives supplied was used and no quantity returned as unused. After the blasting of rocks were completed on 15.06.2013, the cooling period is one week to break the balsted rocks. During the cooling period, already blasted rocks will be drenched in water and the blasted rocks will be washed by water regularly by the person in charge of the quarry mining. In this case, A1 and A2 apart from the supervisors were being employed by the proposed 3rd accused for this purpose. It is not the responsibility or duty of the proposed 4th accused and he could not be found fault for the unfortunate accident took place on 22.06.2013.
12. In view of the terms of agreement, it is clear that the blast work in the Quarry alone is entrusted to the proposed accused. In terms of the agreement, he planted explosives and the mother rock was blasted in the Page 13 of 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.148 of 2023 main Quarry. After one week at about 4.30 p.m., while the labourers were drilling the blasted rock some residue portion of explosives in the mother rock blasted and caused injury to three persons. Consequent to which two persons died. There is no materials on the side of the prosecution to show after the blast work, some work was entrusted by the proposed accused in the Quarry and there is no material to show any act that after the explosives was entrusted to the accused person, he had executed any work in the Quarry after the blast. In the absence of any work entrusted and in the absence of any work done by the petitioner, no negligence on the part of the petitioner for the death and injury sustained by the labourers. Therefore, by applying the principle of the Hon'ble Supreme Court of India in Hardeep Singh case, the power under Section 319 Cr.P.C., being the discretionary one and external power, in the absence of any cogent evidence, prima facie showing the involvement of the accused in this case admittedly the proposed accused/petitioner was not entrusted with any work after the blast, the blasting of rock was done on 15.06.2013. On 22.06.2013, he had not been entrusted with any work and had not carried out any work for the accident, negligence of the this petitioner cannot be Page 14 of 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.148 of 2023 held liable.
13. The principle for missing criminal liability under Section 304 A I.P.C., is stated by the Hon'ble Supreme Court in AIR 1965 Supreme Court 1616. In paragraph 4 of its judgment referred to above the Emperor Vs. Omkar Rampratap, 4 Bom LR 679, where Sir Lawrence Jenkins had to interpret Section 304-A and observed as follows:
“ To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the cause causans; it is not enough that it may have been the causa sine qua non.” “In Union of India V. Prafulla Kumar, after considering the leading cases on the point, the Supreme Court laid down the following principles as to when the charge should be framed:-
(1) That the Judge while considering Page 15 of 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.148 of 2023 the question of framing the charge under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code, the Judge which under the present Code is a senior and experienced Court, cannot act merely as a post-office or a mouthpiece of the prosecution, Page 16 of 18 https://www.mhc.tn.gov.in/judis Crl.R.C.No.148 of 2023 but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial”
14. Coming to the facts of the case, there is no material available to show that the death and injury happened in the quarry was the direct or proximate result of any negligence act on the part of the petitioner.
15. For the above said reasons, the impugned order is unsustainable. Hence the order of the Trial Court is set aside. This Criminal Revision Case is allowed.
Index : Yes/No 09.02.2023
Internet : Yes/No
rpl
V.SIVAGNANAM ,J.
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Crl.R.C.No.148 of 2023
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To
1.The Judicial Magistrate No.II, Kallakurichi, Villupuram District.
2.The Sub Inspector of Police, Keezhkuppam Police Station, Villupuram District.
3.The Public Prosecutor, High Court, Madras.
Crl.R.C.No.148 of 2023
09.02.2023 Page 18 of 18 https://www.mhc.tn.gov.in/judis