Gujarat High Court
Kaushik Ambalal Oza & 2 vs State Of Gujarat & on 22 January, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/1117/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1117 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the
Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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KAUSHIK AMBALAL OZA & 2....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR DIPAK R DAVE, ADVOCATE for the Applicant(s) No. 1 - 3
MR JK PARMAR, ADVOCATE for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date :22/01/2015
CAV JUDGMENT
1. By this writ application under Article-226 of the Constitution of India, the petitioners original accused and serving with the Pashchim Gujarat Vij Company Ltd., Adipur, Kutch as Engineers pray for quashing of the Criminal Complaint No.545 of 2013 filed by the respondent no.2 herein -original Page 1 of 11 R/SCR.A/1117/2014 CAV JUDGMENT complainant in the Court of the learned JMFC, Anjar - Kutchh of the offence punishable under Sec. 304-A, 337, 338 r/w sec. 114 of IPC.
2. It appears from the materials on record that the learned Magistrate vide order dated 6 th October, 2012 took cognizance upon the complaint and ordered police inquiry under sec. 202 of the Code of Criminal Procedure, 1973 (for short "the Code"). On receipt of the report of the Police Officer and considering the other materials on record, the learned Magistrate thought fit to issue process against the applicants herein under sec. 204 of the Code for the offence under Sections 337, 338 and 304-A IPC vide order dated 26/8/2013.
3. The case of the complainant may be summarized as under:-
3.1 The complainant is a resident of Anjar-kutchh. He has a house at Plot No.11, Yamuna Park Society-II, outside Ganga naka, Anjar. He is a retired Police Officer. It is his case that just adjacent to his house a 11 KV high tension line is passing through. Between the compound wall of the house of the complainant and the high tension line, there are five huge trees. The youngest son of the complainant, namely, Bhavin aged 14, went on the staircase of his house on 26 th November, 2011 at around 5 O'clock in the evening for flying kite. It is his case that the cables of the high tension line were cutting through the trees. On the date of the incident few branches of the tree had got entangled with the high tension line and the branches were touching with the iron grill of the house of the complainant. Since the trees were watered, the leaves were Page 2 of 11 R/SCR.A/1117/2014 CAV JUDGMENT quite wet. The son of the complainant was flying kite and all of a sudden the string of the kite got entangled in one of the trees and while attempting to retrieve the string from the trees the son of the complainant sustained electric shock and got electrocuted. The son of the complainant was immediately shifted to the Anjar Civil Hospital where he was declared dead.
3.2 It is the case of the complainant that on account of sheer negligence on the part of the applicants herein who are employees of the electricity company his son lost his life. It is alleged in the complaint that first it is not permissible for the electricity company to lay any high tension line passing through a residential area. Secondly, it is his case that the applicants were negligent in not cutting the branches of the trees through which the electric line was passing through.
Thirdly, it is his case that there was no proper earthing provided. In such circumstances referred to above, it is the case of the complainant that the applicants have committed an offence which could be termed as a rash and negligent act punishable under sec. 304-A of IPC.
4. Mr. Deepak R. Dave, the learned advocate appearing on behalf of the applicants, vehemently submitted that the learned Magistrate committed a serious error in taking cognizance of the complaint lodged by the complainant and ordering issue of process for the offence noted above. According to Mr. Dave no penal liability could be fastened on the applicants herein who are serving as Engineers with the company. Mr. Dave submits that the 11 KV high-tension line was laid much before the three applicants were posted at Anjar-kutchh. According to Mr. Dave, if 11 KV high-tension line Page 3 of 11 R/SCR.A/1117/2014 CAV JUDGMENT was laid years back, then the complainant cannot allege that such line could not have been laid in a residential area and at least the applicants herein should not be held responsible for the same.
4.1 According to Mr.Dave none of the ingredients to constitute the offence under Sec. 304-A IPC are spelt-out in the facts of the present case. The continuation of criminal proceedings against the applicants herein would be nothing but an abuse of the process of law.
In such circumstances referred to above Mr. Dave prays that the complaint and the order of process issued by the learned Magistrate deserve to be quashed.
5. On the other hand this application has been vehemently opposed by Mr. J.K. Parmar, the learned advocate appearing on behalf of the respondent no.2 - original complainant. Mr.Parmar submits that the complaint lodged by his client discloses commission of a cognizable offence, punishable under Sec. 304-A, 337 and 338 of the IPC. According to Mr.Parmar, only a prima facie case is to be seen at the time of taking cognizance upon the complaint. The Magistrate need not enter into a meticulous examination of the materials at the time when he decides to take cognizance and issue process. Mr. Parmar submits that more than a prima facie case is made- out against the applicants herein as they had not taken adequate precautions to ensure that the branches of the trees are cut in such a manner that the electric cable does not get in touch with the trees.
Page 4 of 11 R/SCR.A/1117/2014 CAV JUDGMENTIn such circumstances referred to above Mr.Parmar prays that there being no merit in this application the same deserves to be rejected.
6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration in this application is whether the complaint deserves to be quashed.
7. It is not in dispute that the applicants herein are serving as Engineers with the Pashchim Gujarat Vij Company Ltd. The applicant no.1 was serving as the Deputy Engineer, whereas the applicant nos.2 and 3 were serving as Junior Engineers at the relevant point of time. It is also not in dispute that the 11 KV high-tension line was laid years back. It is not even the case of the complainant that the three applicants were responsible in any manner for laying the 11 KV high tension electricity line through the residential area of the town. It is also not in dispute that the son of the complainant lost his life on account of a freak accident. Therefore, the only question which I need to consider is as regards the extent to which the applicants herein could be held responsible. It appears that the high tension line was cutting through the trees. The son of the complainant was flying kite. Unfortunately, the kite and the string got entangled in the trees and while trying to retrieve the kite from the trees, the son of the complainant sustained an electric shock and got electrocuted.
8. The requirements of Sec. 304-A IPC are that there must be a direct nexus between the death of a person and a rash Page 5 of 11 R/SCR.A/1117/2014 CAV JUDGMENT and negligent act of the accused. A remote nexus is not enough. For the purpose of criminal law there are degrees of negligence and a very high degree of negligence is required to be proved before a charge can be sustained under this section and also Sections 337 and 338 of the IPC. A reasonable foresight is the criterion of negligence. In the case of negligence, the person accused does not do an act which he is bound to do. Mere negligence is not enough to bring a case within the ambit and scope of these sections. Negligence or rashness must be such as should carry with it a criminal liability. Criminal rashness is hazarding a dangerous act with the knowledge that it is so and that it may cause an injury. There is a breach of a positive duty.
9. Section 304A of Indian Penal Code reads as under:-
Sec.304-A - 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.
10. To constitute an offence under Sec. 304A, it is necessary for the prosecution to establish that the act of the accused is rash or negligent and by such act the death has occurred and that act does not amount to culpable homicide. The question therefore is whether in the facts and circumstances as on record, act of respondent can be said to be rash or negligent.
11. A rash act is primarily an overhasly act, and is thus opposed to a deliberate act, but it also includes an act which, Page 6 of 11 R/SCR.A/1117/2014 CAV JUDGMENT though it may be said to be deliberate, is yet done without due care and caution. Illegal omission is act under this Section and may constitute an offence if it is negligent. 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. 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 prudent and reasonable man would not do. Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the consciousness. It is clear, however, that if the words not amounting to culpable homicide are a part of the definition, the offence defined by this section consists of the rash or negligent act not falling under that category, as much as of its fulfilling the positive requirement of being the Page 7 of 11 R/SCR.A/1117/2014 CAV JUDGMENT cause of death. 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 (see State of Gujarat Vs. Maltiben Valjibhai Shah, 1993 (2) GLR 1600).
12. The substance of Section 304-A was explained by their Lordships of the Supreme Court in Suleman Rahiman's case, reported in AIR 1968 SC 829 (ibid) in the following words:-
"The requirements of this section are that the death of any person must have been caused by the accused doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash or negligent act of the accused. As mentioned earlier there is no evidence to show that it was rash or negligent act of the accused that caused the death of the accused."
13. The requirements of this section are not at all satisfied in this case. There is no evidence on the record to show that it was rash or negligent act of the applicants-accused that caused death of the deceased. It would be a pity if the Court were to give countenance to the argument that the charge is established because of the nature of the accident. Simple lack of care such as will constitute a civil liability is not enough to bring home guilt to an accused person under this section or Section 337. I am not considering a question of mere compensation in this case. That is a civil liability.
Page 8 of 11 R/SCR.A/1117/2014 CAV JUDGMENT14. In Re Natrajan' AIR 1966 Mad 357. It is stated therein :
". . . .whether a man is guilty of rash and negligent driving or not, is a question of fact, depending on the totality of the circumstances in the individual case. There could be no general presumption that the fact that a car leaves a road, is evidence of rash and negligent driving. A motor vehicle may leave the road, and proceed on the margin, or collide against some fixed structure of the margin under a variety of circumstances. Some of those circumstances certainly, may probabilise rash and negligent driving, but many other circumstances may not. There can be no burden on an accused to prove that he was not driving the vehicle in a rash and negligent manner, merely because the prosecution proves the fact that the car left the road. For instance, as is the case with regard to all mechanisms, there may be innumerable circumstances of defect not even within the knowledge of the driver of the vehicle. The road may be wet, slippery, or in some manner unsafe. The connection between the steering mechanism and the propelling mechanism in the car, might have been broken, or put out of gear, owing to a large variety of causes. In such a situation, the driver himself may not know why the car suddenly behaved in that manner fraught with such danger to the driver himself and to the other occupants of the car. It is difficult to appreciate how the driver could establish or prove a fact, such as the disconnection of a particular mechanism, of which he himself might have been genuinely unaware."
15. The interpretation of rashness and negligence fell for consideration before the Apex Court in the case of Ambalal Bhat v. State of Gujarat reported in AIR 1972 SC 1150. The Apex Court, while dealing with the applicability of Section 304- A has held that the act causing the death "must be the causa causans".
16. In a prosecution for an offence under Section 304-A, the Page 9 of 11 R/SCR.A/1117/2014 CAV JUDGMENT mere fact that an accused contravenes certain rules and regulations in the doing of an act which causes death of another, does not establish that the death was the result of rash and negligent act or that any such act was the proximate and efficient cause of the death.
17. It could thus be said that the rash and negligent act referred to in Section 304-A means an act which is an immediate cause of death and not an act which can, at best be said to be a remote cause of death. No doubt the act of negligence would be to the rash and negligent manner as to endanger to human life or likely to cause harm or injury to a person where no harm was actually been caused. The requirement is that the death of any person must have been caused by the accused by any rash or negligent act. In other words, there must be cogent material to show that the rash or negligent act of the accused was the proximate cause of death. There must be a direct nexus between the death of the person and the rash and negligent act of the accused.
18. In the case on hand, even if I accept the entire case of the complainant as true, the same has failed to garner any material to show that there is a direct nexus between the death of the son and the alleged act of negligence of the applicants. Ultimately, the Court should consider whether the accused were really responsible for the death of the son of the complainant. It is unfortunate that a young boy lost his life and it is because of the deceased coming in contact with the high tension wire while retrieving his kite which had got entangled in the branches of the trees. But in the absence of anything more, no negligence can be attributed. I am of the Page 10 of 11 R/SCR.A/1117/2014 CAV JUDGMENT view that the proceedings are required to be terminated. The material on record does not disclose that it is the inaction on the part of the applicants which resulted in the death of the son of the complainant. The inaction on the part of the applicants herein to ensure that the branches of the trees are cut in a manner thereby the high tension line may not come in contact with the trees, is not an act which would attract the rigors of culpable negligence punishable under sec.304-A of the Indian Penal Code.
19. Consequently, the petition stands allowed. The proceedings of the Criminal Complaint No.545 of 2013 pending in the Court of the learned JMFC, Anjar - Kutchh, are ordered to be quashed and stands terminated.
(J.B.PARDIWALA, J.) Mohandas Page 11 of 11