Madhya Pradesh High Court
Vijay Kumar Kushwaha vs The State Of Madhya Pradesh on 5 January, 2022
Author: Atul Sreedharan
Bench: Atul Sreedharan
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HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
M.Cr.C.No.63690/2021
Vijay Kumar Kushwaha
Vs.
The State of Madhya Pradesh
Counsel for the petitioner : Mr. Dinesh Kumar Upadhyay, Ld. Adv.
Counsel for the Respondent/State : Mr. Piyush Bhatnagar, Ld.
Panel Lawyer
JUDGMENT
(05.01.2022) The present petition invokes the Court's inherent jurisdiction under Section 482 Cr.P.C seeking the quash of the FIR registered against the Petitioner being Crime No.234/2021 at Police Station-GRP, Jabalpur. The petitioner has also prayed for the quash of the charge-sheet and the attendant proceedings in Criminal Case No.RCT 7803/2021 (State Vs. Tanha Khan and others), pending against him in the Court of the Ld. Railway Magistrate, Jabalpur.
2. The brief facts of this case are as follows. The petitioner Vijay Kumar Kushwaha was the Assistant Station Master at Bheraghat railway station on the date of the incident and remains so as on date. The incident has taken place on 19.07.2021 when a labourer was electrocuted while dismantling a condemned bogie which was auctioned by the 2 railways and purchased by the contractor/co-accused Tanha khan.
3. As per the prosecution's case, on the date of the incident, the labourer who died, came to the office of the petitioner and informed him that he was going to commence cutting the bogie and requested that the power supply to the overhead electric line be switched off. Thereafter, the case of the prosecution is that the petitioner asked the co- accused, Points Man Naveen Garg, to go and check whether the isolator is in the open position. Thereafter, the accident took place and the deceased Munnalal Ahirwar died of electrocution upon coming into contact with the live overhead wire.
4. The post-mortem report of the deceased reveals that there were multiple burns present on the clothes, face, chest and hands. Burns were also seen in the scalp and hair. There was a contusion that was present in the scalp on the left side. The internal examination revealed that the left parietal bone was fractured and there was massive extradural and subdural haemorrhage with clotted blood present all over the brain. The cause of death is given as ante-mortem electric burn and ante-mortem head injury and its consequences.
5. Ld. Counsel for the petitioner has argued that the petitioner has been wrongly implicated and that he is by no way responsible for the alleged offence under section 304 -A IPC 3 registered against the petitioner and other co-accused persons. The FIR has been registered on 25.08.2021 at 9:34 am (after the inquest proceeding) and the offence is under section 304-A IPC simpliciter.
6. Ld. Counsel for the petitioner has submitted that on the date of the incident, the contractor failed to adhere to the procedure laid down by the railways. He has drawn the attention of this Court to page-72, where the statement to the police (u/s. 161 Cr.P.C) of Dharam Prakash is available. Dharam Prakash is an SSE (Senior Section Engineer) with the Carriage and Wagon Department. He gives the background as to how the condemned bogie bearing number 80876 WCR RHV was auctioned on 14.07.2021 to the highest bidder, Apoorva Enterprises. He says he was involved in handing over the condemned bogie in a joint handover procedure. He further states that whenever a bogie is auctioned, there is a joint letter issued, the purpose of which is to endorse that the railways has handed over the possession of the condemned bogie to the contractor.
7. However, before commencing the cutting/dismantling process, the contractor shall give a written memo , intimating the railways that they have to carry out the w ork on top of the bogie and so, the high tension line having close proximity to the top half of the bogie be disconnected from the grid. The memo is supposed to be given to the Station Master (the Petitioner herein) who shall inform the Electricity Department TRD, Kachhpura, and the TRD 4 disconnects the supply of electricity to the overhead line gives an 'OK' report in writing to the Station Master. The Station Master would then give a written intimation to the carriage wagon department and that department green flags the contractor to commence work. Witness Dharam Prakash says that this legal procedure was not followed by the Station Master (the petitioner herein). He further states that on a prior date i.e., 26.06.2021, the contractor had in compliance of the established procedure given a memo for commencement of work, which procedure was not followed by the contractor on the date of the incident. The witness further states that if the contractor had intimated the department as per the established procedure, then as per the procedure prescribed, the department would have acted and this accident would not have occurred. He further states that if the Station Master had received an oral intimation against the procedure so established, then the Station Master was not required to take any action and there was no necessity for the petitioner to ask the Points Man to operate the isolator. He further states that the petitioner did not give any kind of information to the department concerned and neither did the contractor, while on the earlier occasion when the established procedure was followed, the department concerned had always acted and cut off power supply to the overhead line.
8. In order to have a better understanding of the case, learned counsel for the petitioner has also drawn the attention of this Court to page-52 of the petition where the photographs 5 of the isolator are given. There is a handlebar switch at the base of the pole which when pull down, the isolator rod goes into an open position thereby disconnecting the flow of electricity to the overhead lines. When the isolator handlebar is pushed upward, the isolator rod comes down and completes the circuit resulting in the flow of electricity to the overhead lines and making them live. Twenty five thousand volts of electricity flow in the overhead line which power the electric locomotives. It is relevant to mention here that the petitioner has filed the entire charge-sheet and the learned counsel's arguments are entirely based upon the documents and material given in the charge-sheet. No extraneous document, not being the part of the charge- sheet, has been relied upon by the petitioner in this case. Under the circumstances, learned counsel for the petitioner submits that the police statement u/s. 161 Cr.P.C of the witness Dharam Prakash absolves the petitioner of any liability whatsoever, far less a criminal liability.
9. Learned counsel for the petitioner has also drawn the attention of this Court to page 170 of the charge-sheet which is the joint note signed by the railways department and also the contractor, Apoorva Enterprises. As per the joint note, in clause No.4, it is given that in the course of the cutting procedure, the security and wellbeing of the labourer shall be the responsibility of the buyer, who in this case is the contractor. Clause No.6 provides for all liabilities arising from an accident in the cutting procedure to be borne by the buyer or the contractor. On the basis of this 6 note, learned counsel for the petitioner has submitted that the liabilities of the petitioner and the railway s was absolved as the contractor has signed and accepted c lause No.6 to take full responsibility for all liabilities arising from an accident during the process of cutting the coach. He has thereafter drawn our attention to page 224 to 230 of the petition which is the report of the departmental enquiry conducted by the railways absolving the petitioner of any kind of negligence in the performance of his duty.
10. Learned counsel for the State on the other hand has opposed this petition and has stated that the present petition is a quash petition seeking to bring to an end the entire proceedings against the petitioner which is at an incipient stage before the learned trial Court. He further state that the petitioner was vicariously liabile as he was the Assistant Station Master and it was his duty to ensure that on the date of the incident, the power supply to the overhead lines above the bogie was switched off. As regards the joint note with reference to the clause no.6, Ld. Counsel for the State submits that the same does not absolve the petitioner of his liability under the criminal law and it only absolves the railways department from incurring any loss by way of compensation under civil and tort law. As regards the departmental enquiry absolving the petitioner of negligence in the performance of his duty, Ld. Counsel for the State has submitted that the standard of evidence required for assessing negligence in a departmental enquiry 7 is different from that of assessing negligence for an offence under section 304-A IPC.
11. Heard the learned counsels for the parties and perused the charge-sheet filed along with the petition. It goes without saying that the scope of interference under section 482 Cr.P.C. is extremely limited. It is an extra ordinary power which is given to the High Court to ensure that complete and wholesome justice is done in a case and to prevent the abuse of process of law. However, merely because the charge-sheet has been filed and the proceeding have commenced before the learned trial Court is no reason for not exercising authority under section 482 Cr.P.C if the material on record go to show that the proceedings , if allowed to continue, would perpetuate injustice and unwarranted hardship to the accused.
12. The FIR only gives the description of the incident on 19.07.2021. Criminal liability is sought to be affixed on the petitioner on the ground of negligence that he omitted to perform his duty as required under the law. Learned counsel for the State, in the course of his arguments has also drawn the attention of this Court to the statement of Santosh Kumar Mishra who is a Points Man, but not the Points Man associated with the operation of electrical infrastructure of the railways. He says that on the date of the incident at around 8:30 am, a private labour er came to the panel room and told the petitioner that he is going to commence the work and that the electricity be disconnected 8 to the overhead lines. After saying that, the labourer left the panel room. The witness says that he was present when the labourer came there. Thereafter, he says that the petitioner asked the co-accused Naveen Garg to take the keys and go and inspect whether the isolator was in open position . He further says that the co-accused Naveen Garg took the key from the panel room and went outside. As this witness was also standing there, the petitioner told him to accompany the co-accused Naveen Garg. He says that after reaching the pole, the co-accused Naveen Garg moved the handle switch up and down and a sparking sound was heard. He says that he was standing away from the pole as he has no knowledge about electrical works and he was never trained in that while the co-accused Naveen Garg, according to this witness, was trained in the operation of the electrical infrastructure of the railways. From the statement of this witness, the end liability is sought to be shown as that of the co-accused Naveen Garg who operated the lever. However, if the statement is examined of this witness in its entirety, he only says that the petitioner asked Naveen Garg to find out whether the isolator was in open position.
13. The procedure which is to be followed has been given in great detail by witness Dharam Prakash. That procedure has already been discussed in paragraph 7 supra. As per that procedure, a written memo was required to be given by the operator/contractor to the petitioner who would convey the same to the TRD Department, which would ensure disconnection of the electricity supply to the overhead line. 9 In this regard, learned counsel for the petitioner has al so drawn the attention of this Court to two such written intimations given by the contractor on 28.06.2021 and 10.08.2021, which is the part of the charge-sheet and at page 99 and 100 of the court file. The written intimations clearly reveal that the contractor had informed the department that they would be carrying out the cutting work on 29.06.2021 and 30.06.2021 between 8:30 am to 6:00 pm. It is relevant to state here that the joint note dated 14.07.2021 reveals in clause no.3 that the cutting work was to be done between 8:00 am to 5:00 pm. Likewise on 10.08.2021 also a similar written request was given to the department stating that they would be carrying out the cutting work from 10.08.2021 to 16.08.2021 between 8:30 am to 6:00 pm. These are the requests forms which are referred to by the witness Dharam Prakash, on the basis of which the department disconnects the power supply to the overhead power line.
14. In the charge-sheet, no such written note is available for 19.07.2021 i.e., the date of the incident. This fact is also stated by witness Dharam Prakash, who states that on the date of the incident no such written note of the contractor was received by the department, the same witness also states that when the oral request was made by the labourer, no action was required to be taken by the petitioner herein as the procedure mandatorily required a written note to the department by the contractor. In other words, on the date of the incident, there was no intimation as per the 10 established procedure given to the petitioner herein with regard to the disconnection of power supply. From the material on record, it also appears that the said labourer never came back to confirm whether after his oral request, the needful has been done or not.
15. Under the circumstances, on the factual aspect it clearly appears that the procedure that was expected to be followed was not followed by the contractor on 19.07.2021. The said observation is not to say that the contractor is prima-facie guilty of negligence as he is not a party in the present petition. The statement of Dharam Prakash completely goes to absolve the petitioner and the department and by necessarily implications lays the blame in the doorstep of the contractor. However, once again this Court refrains from passing any observation on the liability of the contractor as he is not before this Court. On the factual aspects of this case, a roving inquiry was never required and the material on record in the charge-sheet itself go to reveal that the procedure established was not followed.
16. Coming to the legal argument put-forth by the learned counsel for the State that the petitioner is vicariously liable for the offence, as he was the Assistant Station Master and was responsible for everything that happened in the station including the responsibility of cutting off power supply to the overhead line, deserves to be rejected. Vicarious liability is a concept alien to criminal law. In criminal law a man can only be punished for his action coupled with mens rea, with 11 the exception of offences involving 'strict liability' like road traffic offences where the actus reus itself is the offence, with 'due diligence' perhaps being the only defence available to the offender and offences of 'absolute liability' where too, the actus reus itself is the offence with no available defence to the offender. Offences of strict and absolute liability are creatures of statue law and make acts with preponderant tortious liability as offences for the larger public good. An act also includes an omission which can make a man liable to be prosecuted for an offence only when the omission is related to the performance of a duty enjoined by law.
17. Vicarious liability is also 'no fault liability' where a pers on is made liable for the actions of another without his own involvement in the offending act. It entails a master/servant or principal/agent relationship where the principal is liable to suffer the consequences of his agent's action even though the act of the agent may not have been approved of by the principal and where there was no involvement of the principal and the same gives rise to tortious/civil liability , generally. Acts giving rise to vicarious liability can be made offences by special statute. Thus, making the director of a company liable to suffer punishment for an offence committed by the company in certain special statutes (the Negotiable Instruments Act being one such) is an example of criminalising vicarious liability through legal fiction. However, vicarious liability cannot be assumed under the general law of crimes in the absence of a specific provision 12 in the statute providing punishment for the principal for a criminal act by the agent.
18. Constructive liability on the other hand has direct relevance to criminal law. Vicarious liability is often confused for constructive liability, but both are distinguishable. Where vicarious liability in tort may occur even in the absence of participation by the principal, constructive liability occurs only in cases where the accused is made liable on account of him being a participant in the 'chain of causation'. In other words, actus reus is essential in the chain of causation to make a person constructively liable for the acts of a co-accused. This may make the accused liable for acts done in furtherance of the common intention of all or for the achievement of the common object of an unlawful assembly. ".....on a constructive liability approach, one may be found liable for outcomes one brought about by engaging in certain acts, even if one did not know at the time that one's act might have these outcomes" 1.
19. While assessing negligence under section 304-A IPC, the court must take into the account the most proximate cause which led to the accidental death to the victim as enshrined in the maxim "causa proxima non remota jura spectatur" or, that the law shall take cognizance of the proximate ca use and not the remote cause. In this particular incident, the proximate cause was the failure to disconnect the electricity supply to the overhead line. According to the prosecution, 1 Ashworth's Principles of Criminal Law - Ninth Edition by Jeremy Horder 13 it was the co-accused Naveen Garg who was supposed to disconnect the electricity to the overhead power line by opening the isolator. But whether Naveen Garg was also liable is an aspect which this Court is not going into as he is not a party before this Court and his actions would ultimately have to be taken into notice in the backdrop of the procedure which was laid down for cutting off the power supply to the overhead line.
20. In criminal law the basic dicta is actus reus non facit reum nisi mens sit rea or the act and the intent must happen together for an offence to be committed. However, 304 -A IPC is an exception to this general rule. It requires only negligence or recklessness without a malicious mind. Negligence is a state of existence, act or omission to take due care expected from a reasonable man, as required by law.
21. The alleged non-adherence to the procedure by the contractor which required him to give a written intimation to the petitioner reduces the liability and involvement of the petitioner and places him remotely in the chain of causation. Under the circumstances, this Court is of the opinion that even if the sum totality of the prosecution's case is taken into consideration, the act or omission on the part of the petitioner as required by law, is not made out and he cannot even be held remotely liable for the accident that happened on 19.07.2021 resulting in the death of Munnalal Ahirwar.
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22. In view of what has been discussed hereinabove and the material on record, this Court is satisfied that no prima- facie case is made out against the petitioner for taking cognizance against him and therefore, all proceedings pending against him are quashed along with the FIR in question.
(Atul Sreedharan) Judge Digitally signed by RAVIKANTrk KEWAT Date: 2022.01.18 17:25:27 +05'30'