Gujarat High Court
Jogaram Mangilal Sen vs State Of Gujarat on 24 December, 2020
Equivalent citations: AIRONLINE 2020 GUJ 2040
Author: A. S. Supehia
Bench: A.S. Supehia
R/CR.MA/18797/2020 JUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 18797 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the YES
judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as to NO
the interpretation of the Constitution of India or any order made
thereunder ?
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JOGARAM MANGILAL SEN
Versus
STATE OF GUJARAT
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Appearance:
MR HARDIK A DAVE(3764) for the Applicant(s) No. 1
MR MOHAMMED K VOHRA(10709) for the Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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Date : 24/12/2020
ORAL JUDGMENT
1. Rule. Learned advocates appearing for the respective respondents waive service of notice of rule.
2. By way of the present application under Section 482 of the Code of Criminal Procedure, 1973 (for short, the 'Code'), the petitioner pray for quashing and setting aside the F.I.R. being C.R.No.11210005201350 of 2020 registered with Athwaline Police Station, Surat City, for the offence punishable under Sections 3(1)
(j) and 3(2)(5) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and Section 9 of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, Page 1 of 12 Downloaded on : Tue Aug 24 10:15:48 IST 2021 R/CR.MA/18797/2020 JUDGMENT 2013(for short "the Manual Scavengers Act").
3. At the outset, learned advocate Mr. Hardik Dave appearing for the petitioner has submitted that the dispute is now settled and the first informant has no objection if the FIR and the charge-sheet being ATRO Special Case No.32 of 2020 pending before the 10th Additional Sessions Judge, Surat along with all prior and subsequent proceedings thereto may be quashed. He has placed reliance on the affidavits filed by the first informant-respondent no.2 and other family members of the deceased and has submitted that the dispute is amicably settled between the parties. It is submitted that the Coordinate bench of this Court in similar offences registered under section 304 of Indian Penal Code, 1860 (the IPC), section 3(2)(va) Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) and sections 5(1)(A)(B), 6(2), 7,8 and 9 of Manual Scavengers Act has quashed and set aside the FIR on the ground of settlement, hence the present FIR may also be quashed.
4. In response to the aforesaid submission, learned APP Ms.Shruti Pathak has submitted that apart from the offence registered under the IPC, the petitioner is also charged under section 9 of The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013, (herein after referred as Manual Scavenger Act) and hence the offence cannot be quashed even if the parties have settled the dispute. She has submitted that the petitioner had engaged the deceased for repairing the sewerage pipeline and they were asked to enter the chamber without any safety gear, which resulted in to death of the workers due to inhaling of deadly gases. It is submitted that as per the provision of the Manual Scavenger Act, the petitioner was required to provide all the safety gear to the workers before they are asked to enter any Page 2 of 12 Downloaded on : Tue Aug 24 10:15:48 IST 2021 R/CR.MA/18797/2020 JUDGMENT sewerage tank or septic tank. Learned APP has submitted that even if it is assumed that the provisions of the Act would not apply, the facts reveal that the offence under Section 304 of the IPC is established and hence, the present application may not be allowed. Thus, it is submitted that the impugned FIR may not be quashed on the ground of settlement.
5. In rejoinder, learned advocate Mr.Hardik Dave appearing for the petitioner has submitted that looking to the panchnama of the place of incident, it can be asserted that the chamber in which the deceased persons had entered was not a gutter but was actually a valve chamber with stairs therein and the same has a pipe passing through it with valve to change the flow of the rain water and therefore, there was no presence of sewerage water or other toxic material in it and therefore, it cannot be said that the petitioner as well as deceased had knowledge of any gas in the valve chamber and hence neither the offence as alleged under Section 304 of the IPC nor under the Manual Scavenger Act are established against the petitioner. He has also submitted that the safety gear was also found in the valve chamber as per the panchnama and therefore, the petitioner is sought to be wrongly implicated in the alleged offence. It is submitted that the provisions of Manual Scavenger Act can only apply for employment of persons for undertaking the hazardous cleaning of septic or sewerage tanks and the same would not apply to dry chambers which are not constructed for the purpose of collection of sewerage water. Thus, it is urged that the impugned FIR may be quashed. As regards the offence registered under section 304 of the IPC, is concerned, it is submitted that the same can be set aside on the premise of settlement. In support of his submission, reliance is placed by him on the judgments of the Co-ordinate benches, being orders dated 30.07.2018 passed in Cri.
Page 3 of 12 Downloaded on : Tue Aug 24 10:15:48 IST 2021R/CR.MA/18797/2020 JUDGMENT Misc. Application No.9168 of 2018, 28.06.2017 passed in Cri. Misc. Application No. 11096 of 2017, order dated 18.09 2020 passed in Cr. Misc. Application No. 12574 of 2020.
6. The petitioner is charged with the offence punishable under the aforementioned offences under the IPC, the Atrocities Act and the Manual Scavengers Act. It is alleged in the impugned FIR that the deceased along with his family members were engaged by the petitioner for repairing a collapsed wall of gutter. In order to stop the flow of sewage, the petitioner had asked the deceased to close the valve of the pipeline by entering into chamber so that the flow of the sewage can be stopped. The chamber in which the valve was located was about 50 meters away from the collapsed gutter. The deceased had entered with chamber to open the valve, but unfortunately they succumbed to the deadly gas present in the chamber. As per the postmortem report, the cause of death is shown as "asphyxiation on account of suffocation due to unknown and undetectable gaseous poisoning."
7. As far as the offence under section 304 of the IPC is concerned, I may with profit refer to the judgment of the Co-ordinate Bench in the case of Jayrambhai Panchiyabhai Gamit vs State of Gujarat judgment dated 07.03.2017 passed in Miscellaneous Criminal Application No. 21097 of 2015. The Co-ordinate Bench has observed thus:
" 9. I am of the view that, in the first instance, no first information report can be registered for the offence under section 304 of the Indian Penal Code. I am also of the view that the police, at the end of the investigation, cannot file a charge-sheet for the offence under section 304 of the Indian Penal Code. Section 304 of the Indian Pe- nal Code would apply provided the case falls within one of the exceptions to section 300 of the I.P.C. If a charge-sheet is filed for the offence of murder, and if it is the case of the accused that the offence is one of culpable homicide not amounting to murder, then he has to bring the case within one of the exceptions to section 300.Page 4 of 12 Downloaded on : Tue Aug 24 10:15:48 IST 2021
R/CR.MA/18797/2020 JUDGMENT 10 In the aforesaid context, I may refer to and rely upon the decision of the
Supreme Court in the case of Harendra Nath Mandal vs. State of Bihar, 1993 (2) 435, in which the Supreme Court observed as under;
"Section 304 does not create an offence but provides the punishment for culpable homicide not amounting to murder. In view of section 299 of the Penal Code, who - ever causes death by doing an act with the intention of causing death, or with the in- tention of causing such bodily injury as is likely to cause death, or with the knowl- edge that he is likely by such act to cause death, commits the offence of culpable homicide. In view of section 300 of the Penal Code, except in cases covered by the five exceptions mentioned therein, culpable homicide is murder. It is well- known that if a death is caused and the case is covered by any one of the five exceptions of sec - tion 300 then such culpable homicide shall not amount to murder. Section 304 pro- vides punishment for culpable homicide not amounting to murder and draws a dis- tinction in the penalty to be inflicted in cases covered by one of the five exceptions, where an intention to kill is present and where there is only knowledge that death will be a likely result, but intention to cause death or such bodily injury which is likely to cause death is absent. To put it otherwise if the act of the accused falls within any of the clauses 1, 2 and 3 of section 300 but is covered by any of the five exceptions it will be punishable under the first part of section 304. If, however, the act comes un- der clause 4 of section 300 i.e. the person committing the act knows that it is so immi- nently dangerous that it must, in all probability cause death but without any intention to cause death and is covered by any of the exceptions, it will be punishable under the second part. The first part of section 304 applies where there is guilty intention whereas the second part applies where there is guilty knowledge. But before an ac- cused is held guilty and punished under first part or second part of section 304 , a death must have been caused by him under any of the circumstances mentioned in the five exceptions to section 300 , which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation."
11 Thus, section 304 of the Indian Penal Code does not create an offence of cul- pable homicide, not amounting to murder. That section provides for punishment in case of culpable homicide, not amounting to murder. The first part of it provides for punishment of such offence, when 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. The second part of it provides for punishment in a case when 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. The offence that is made punishable under that Section is the same offence namely; an offence of culpa- ble homicide not amounting to murder. It only provides different punishments, taking into consideration, whether the act was done with a particular intention or the act was done with the knowledge that is likely to cause death without any intention to cause death, or to cause such bodily injury as is likely to cause death. It will be sig- nificant to note that this Section 304 covers cases also where the offence is prima fa- cie an offence of murder, punishable under Section 302, but in view of the applica- tion of any one of the exceptions given in Section 300 of the Indian Penal Code, the offence of murder is reduced to an offence of culpable homicide, not amounting to murder.
Xxxxxx xxxxxx Page 5 of 12 Downloaded on : Tue Aug 24 10:15:48 IST 2021 R/CR.MA/18797/2020 JUDGMENT
Let me, for the time being, proceed on the footing that the case is not one of culpable homicide not amounting to murder, but is of murder. In such circumstances, the only clause that can be invoked, if at all applicable, would be Clause Fourthly to section
300. Section 300 reads as under;
"300. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
2ndly xxx xxx xxx xxx 3rdly xxx xxx xxx xxx 4thly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
16 Clause fourthly covers those class of cases which are very dangerous in them- selves and the act is done with the knowledge that it must, in all probability, cause death or such bodily injury as is likely to cause death and despite such knowledge, the act is done without any excuse. In other words, the provisions of clause fourthly are required to be attracted only when the offender knows that his act is so immi - nently dangerous that it would, in all probability, cause death or, at least, such bod- ily injury, which is likely to cause death. Such knowledge on the part of the accused must be of highest degree of probability. It is also a well known fact that clause fourthly is designed to provide for that class of cases where the acts resulting in death are calculated to put lives of many persons in jeopardy without being aimed at any one in particular and perpetrated with full consciousness of the probable conse- quence, as can be seen from the illustration (d) of Section 300 of the IPC.
17 The word "imminently" implies a risk which is both threatening and near. The question whether an act is imminently dangerous depends upon the nature of the act and its evident risk to human life. It must be an act in which death of human is cer - tain or almost so, and it would cause surprise if the result was otherwise.
8. Thus, it is held that in the first instance, no first information report can be registered for the offence under section 304 of the Indian Penal Code. Section 304 does not create an offence but provides the punishment for culpable homicide not amounting to murder. The Coordinate Bench has further held that if the act of the accused falls within any of the clauses 1, 2 and 3 of section 300, but is covered by any of the five exceptions it will be punishable under the first part of section 304. If, however, the act comes under clause 4 of section 300 i.e. the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death but without any intention to cause death and is covered Page 6 of 12 Downloaded on : Tue Aug 24 10:15:48 IST 2021 R/CR.MA/18797/2020 JUDGMENT by any of the exceptions, it will be punishable under the second part. Thus, the knowledge on the part of the accused must be of highest degree of probability. In the present case, neither there was any intention on the part of the petitioner nor any knowledge that the act of entry of the deceased in the dry chamber will be so imminently dangerous which could result into their death. The petitioner was not having any knowledge that a valve chamber will be having hazardous gases. Thus, the offence under section 304 of the IPC is required to be quashed. Furthermore vide various orders passed by the Coordinate Benches of this Court, the FIR's have been quashed and set aside for the offence punishable under section 304 of the IPC on the ground of settlement.
9. With regard to the offence registered under the provision of Manual Scavenging Act, it is the case of the State that the petitioner was responsible for the death of the workers, since he had instructed them to enter the chamber without any safety gear. As noted herein above, in the panchnama, it is revealed that the deceased had entered a dry chamber to operate the valve and they were also wearing safety helmets. During the pendency of the hearing of the present petition, this Court had called for the papers of the investigation along with the Report. After a perusal of the papers and the panchnama, this Court had directed the investigating officer to obtain specific report from the Surat Municipal Corporation with regard to the construction and usage of the chamber in which the deceased were asked to enter. The panchnama reveals that the Chamber was dry and did not contain any water and the deceased were also wearing safety helmets. The Investigating officer has obtained the report dated 23.12.2020 from the Corporation. The same reveals that the Chamber in which the deceased had entered was dry. It is also specified that the "It was a Page 7 of 12 Downloaded on : Tue Aug 24 10:15:48 IST 2021 R/CR.MA/18797/2020 JUDGMENT valve chamber. Does not carry Sewage in open Channel. It was a valve chamber and not a septic tank". Thus, the panchnama and the Report of the Corporation indubitably concludes that the chamber in which the deceased had entered did not contain any sewage water and was a dry chamber and only constructed for the operation of the valve of the sewage pipe line. The deceased were also provided with safety helmets.
10. Thus, the established facts are that the deceased had died due to suffocation of unknown gases and the chamber in which they were asked to enter was a valve chamber only and the same was dry and was not constructed for the storage of sewage water. In light of these facts, I may at this stage examine the provisions of the Manual Scavenger Act.
Section 2(p) and (q) of the Prohibition of Employment as Manual Scav- engers and their Rehabilitation Act, 2013 stipulates definitions of 'septic tank' and 'sewer'.
(p) "Septic tank" means a water-tight settling tank or chamber, normally lo- cated underground, which is used to receive and hold human excreta, allow- ing it to decompose through bacterial activity;
(q) "Sewer" means an underground conduit or pipe for carrying off human excreta, besides other waste matter and drainage wastes;
11. In the present case, the dry valve chamber constructed by the Corporation will not fall within the definition of "septic tank" and "sewer".
SECTION 7: Prohibition of persons from engagement or employment for hazardous cleaning of sewers and septic tanks No person, local authority or any agency shall, from such date as the State Government may notify, which shall not be later than one year from the date of commencement of this Act, engage or employ, either directly or indirectly, any person for hazardous cleaning of a sewer or a septic tank.
Page 8 of 12 Downloaded on : Tue Aug 24 10:15:48 IST 2021R/CR.MA/18797/2020 JUDGMENT Thus, Section 7 of the Act prohibits engagement of any person for hazardous cleaning of a sewer or a septic tank.
12. I may with profit refer to the Rules framed under the Manual Scavengers Act, 2013. The relevant Rules of The Prohibition of Employment as Manual Scavengers and their Rehabilitation Rules, 2013 (the Rules) are as under:
Rule 2(g) "Protective gear" means personal safety gear and safety devices that are to be provided, worn or used by safai karamcharis or sanitary workers in respect of cleaning of sewers and septic tanks that may be necessary for the specific nature of work to be carried out, as including and not limited to the materials referred to in Rule 4 to (i) avoid any exposure of human skin to substances which can lead to dis- eases, along with all breathing equipment which prevents inhalation of gases which can lead to diseases, and, also includes any sensory equipment for detection of gases present inside the sewers or septic tanks; (ii) avoid any injuries while carrying out cleaning work.
RULE 3:
(1) No person shall be allowed to clean a sewer manually, with the protective gear and safety devices under these rules except
(a) for the removal of concrete or FRP (Fibre Reinforced Plastic) or damaged manhole door where mechanical equipments cannot be put into operation.
(b) for inter-linking the newly laid sewer main with the existing sewer main, in case of sewer of size of more than 300 mm diameter.
(c) for removal of submersible pump sets fixed at the bottom of the suction wells.
(d) for the reconstruction of the manhole or rectification of the sewer main.
(e) Any circumstance, when it is absolutely necessary to have manual sewage cleaning, after the CEO of the local authority has permitted to do so after recording in writing the specific valid reasons for allowing such cleaning. (2) For the purposes of clauses (c) and (d) of sub-rule (1), before allowing entry of a person in the sewer, sewage shall be totally emptied.
RULE 6:
(1) All protective gear and safety devices under these rules shall be checked every six months and necessary repair or replacements shall be made by the employer who en -
gages a person for cleaning a sewer or a septic tank.
(2) Comfortable bodysuits shall be made available to the worker who has to enter sewers or septic tanks for their cleaning. The employer shall provide full body suits to Page 9 of 12 Downloaded on : Tue Aug 24 10:15:48 IST 2021 R/CR.MA/18797/2020 JUDGMENT workers entering manholes of depth more than five feet and alternatively, partial fish- ing wader body suits to those entering manholes of depth less than five feet.
(3) The employer shall also ensure the following safety precautions before a person is engaged in the cleaning of a sewer or a septic tank, namely
(a) There shall be a minimum of three employees present all the time, one of whom shall be a supervisor;
(b) The atmosphere within the confined space shall be tested for oxygen defi- ciency and toxic and combustible gases including but not limited to poi- sonous gases like Hydrogen Sulphide, Carbon Monoxide, Methane, and gaso- line vapours, through detection tests including the following
(i) Lowering a detector lamp into the manhole,
(ii) Inserting wet lead acetate paper which changes colour in the pres- ence of hazardous gases,
(iii) Detection of gases through gas detector masks.
13. A close reading of the provisions of the Act and Rules signify that they are framed for the protection of the worker who are engaged in cleaning of sewage or septic tank which contain sewage water. Rule 3(2) of the Rules stipulates before allowing entry of a person in the sewer, sewage shall be totally emptied. Rule 6 (1) and (2) of the Rules prescribes of providing protective gear, safety devices body suits and partial fishing wader body suits to the persons who are engaged in cleaning the sewer of a septic tank or man holes. Sub-Rule 3 of Rule 6 mandates that the employer shall ensure the safety precautions before a person is engaged in "cleaning of a sewer or a septic tank". Clause (b) requires that atmosphere within the confined space shall be tested for oxygen deficiency and toxic and combustible gases including but not limited to poisonous gases like Hydrogen Sulphide, Carbon Monoxide, Methane, and gasoline vapours, through detection tests. Clause (b) of sub-rule 3 of Rule 6 of the Rules prescribes mandatory testing and detection of hazardous gases of sewer or a septic tank. The tenor of the Act and Rules imply that the same are promulgated for the protection, safety and wellbeing of a person who enters a "sewer or a septic Page 10 of 12 Downloaded on : Tue Aug 24 10:15:48 IST 2021 R/CR.MA/18797/2020 JUDGMENT tank or manhole" filled with sewage for the purpose of cleaning, repairing or emptying. The provisions also imply that such septic tanks/sewer or manholes are meant for storage and flow of the sewage water. In the present case, the deceased had indubitably succumbed to the hazardous gases, although it was neither a 'sewer or septic tank or a manhole'. There was no sewage water present in the chamber and it was a dry valve chamber. The Corporation has also admitted that it was neither a septic tank nor a sewerage tank. Thus, the valve chamber will not fall within the definition of "septic tank" or "sewer" as defined under section 2(p) and (q) of the Manual Scavenger Act. Hence, there was no reason to verify that the same could have contained hazardous gases as per Rule 6(3)(b) of the Rules. In wake of such incontrovertible fact, the provisions of the Manual Scavenger Act will not get attracted. Unfortunately, neither the Act nor the Rules address the exigencies which are highlighted in the present case. The Act and Rules are blissfully silent in redressing the plight of such workers who are made to enter empty chambers or cavity presuming that the same are safe devoid of any hazardous material or gases. In absence of any such provisions prescribing safe guards in case of the dry underground chambers, the employers like the petitioner will escape from the rigors of the Act and the Rules. The only counter would be an appropriate amendment in the provisions of the Act and the Rules which can address the plight of the workers who risk their lives for the advantage and betterment of the society at large.
14. Thus, the offence under the provisions of the Manual Scavenging Act will not get attracted in the present case. Furthermore, the family members of the deceased including the complainant have amicably settled the dispute. The affidavits of settlement are produced on record. For the foregoing reasons, the present petition Page 11 of 12 Downloaded on : Tue Aug 24 10:15:48 IST 2021 R/CR.MA/18797/2020 JUDGMENT succeeds. The impugned FIR and all the subsequent proceedings are quashed and set aside. Rule made absolute.
Sd/-
(A. S. SUPEHIA, J) NEHA GUPTA //// Abhishek Page 12 of 12 Downloaded on : Tue Aug 24 10:15:48 IST 2021