Karnataka High Court
Sri.Deepak Kumar vs The State on 5 April, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.3721/2021
BETWEEN
1. SRI.DEEPAK KUMAR,
S/O SRI. MAHENDRA KUMAR,
AGED ABOUT 62 YEARS,
MANAGER,
KEHEMS TECHNOLOGIES PVT. LTD.,
R/AT FLAT NO.D-3,
SAMHITHA SPICE WOOD, WEST BLOCK,
G M PALYA, 6TH MAIN,
THIPPASANDRA POST,
BENGALURU - 560 075.
2. SRI. MUKESH RATHORE,
S/O SRI. MADANLAL RATHORE,
AGED ABOUT 48 YEARS,
OCCUPATION:
FACTORY MANAGER,
KEHEMS TECHONOLOGIES PVT. LTD.,
NO.47, CHANDRABHAGANAGAR,
JUNI INDORE, INDORE,
MADHYA PRADESH - 452 007.
... PETITIONERS
[BY SRI.MURTHY D NAIK, SENIOR COUNSEL FOR
SRI.MAHENDRA G., ADVOCATE]
2
AND
1. THE STATE,
BY THE SUB-INSPECTOR OF POLICE,
KORAMANGALA POLICE STATION,
MADIWALA SUB-DIVISION,
BENGALURU CITY.
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
ATTACHED TO HIGH COURT.
2. SRI. SHARATH S.,
S/O SHASHI P. S.,
AGED ABOUT 28 YEARS,
ADDRESS AS MENTIONED IN THE
CHARGE-SHEET:
NO.24/1, GANGAMMA TEMPLE STREET,
B. NARAYANAPURA,
M V G LAYOUT,
BENGALURU - 562 135.
NOW RESIDINT AT
SANGUPURATHIL,
KARUNAPURAM
IDUKKI - 685 602,
KERALA.
... RESPONDENTS
[BY SRI.SHANKAR H.S., HCGP FOR R1;
R2 IS SERVED AND UNREPRESENTED]
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO (1) QUASH THE CRIMINAL PROCEEDINGS
PENDING IN C.C.NO.6755/2020 ON THE FILE OF XLI ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE, BENGALURU CITY, AGAINST
THE PETITIONERS - ACCUSED NUMBERS 4 AND 5, FOR THE
OFFENCES UNDER SECTIONS - 304A AND 338 OF THE INDIAN
PENAL CODE, AS PER ANNEXURE - A AND ETC.
3
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court calling in question proceedings in C.C.No.6755/2020 pending on the file of XLI Additional Chief Metropolitan Magistrate, Bengaluru.
2. Heard the learned Senior counsel, Sri. Murthy D. Naik and Sri. Shankar H.S., learned HCGP appearing for respondent No.1.
3. The petitioners, who are the employees of M/s. KEHEMS Technologies Pvt. Ltd., enter into a annual maintenance contract for heat pumps with the Grand Mercure Hotel, Bengaluru on 31.03.2019. It transpires that on 15.02.2020, Grand Mercure Hotel raises a complaint with regard to certain defects in heat pumps at their hotel. Accordingly, a Branch Co-ordinator was deputed to attend to the complaint. On 15.02.2020, an accidental blast takes place while servicing the heat pump, in which, the respondent No.2 - Service Engineer 4 and another by name Jeswin M.V., both employees of M/s. KEHEMS Technologies Pvt. Ltd. were injured.
Subsequently, on 21.02.2020, Sri. Jeswin M.V., succumbed to the injuries. Based upon the said accident, proceedings were instituted against the petitioners for offences punishable under Sections 304A and 338 of the IPC. The petitioners are accused Nos.4 and 5 in the said proceeding. While filing the charge sheet, the employees of Grand Mercure Hotel have been left and the petitioners, who are the employees of M/s. KEHEMS Technologies Pvt. Ltd., who had annual service contract agreement with Grand Mercure Hotel are hauled into these proceedings. It is at that juncture, the petitioners have knocked the doors of this Court.
4. Learned Senior counsel, Sri. Murthy D. Naik, would submit that it was an accident that took place in Grand Mercure Hotel while servicing the heat pumps by a Service Engineer, a report was also sought from the hands of one SSS Consultants with regard to accident. The report opined that it was an 5 accident that has happened due to human error and therefore, the petitioners cannot be hauled into these proceedings particularly for offence punishable under 304A of the IPC.
5. The learned Senior counsel would also place reliance upon the following judgments rendered by the Apex Court and that of this Court to buttress his submission:
i. KURBAN HUSSEIN MOHAMEDALLI RANGAWALLA V. STATE OF MAHARASHTRA1.
ii. AMBALAL D. BHATT V. THE STATE OF GUJARAT2 iii. M. SRINIVAS V. THE STATE BY YELAHANKA TRAFFIC POLICE in Crl.P.No.9124/2016.
iv. P.B.DESAI V. STATE OF MAHARASHTRA AND ANOTHER3.
6. Respondent No.2 though served remains unrepresented.
7. Learned HCGP would however contend that it is a matter of trial for the petitioners to come out clean as the 1 AIR 1965 SC 1616 2 (1972) 3 SCC 525 3 (2013) 15 SCC 481 6 negligent act of the petitioners have lead to the death of their Service Engineer at Grand Mercure Hotel and would seek dismissal of the petition.
8. I have given my anxious consideration to the respective submissions made by the learned counsel and perused the material on record.
9. The afore-narrated facts are not in dispute. The agreement between M/s. KEHEMS Technologies Pvt. Ltd. And Grand Mercure Hotel was with regard to the contract of maintenance of heat pumps. A complaint by Grand Mercure Hotel results in the death of the deceased, who was working as a Service Engineer going to hotel to attend to the complaint, at that point in time, the blast happens due to human error. The report with regard to the accident also indicates that it was due to a human error. Paragraph 5 of the report, which is germane, reads as follows:
"PARAGRAPH No.5: My observation is that the top-up of the system (gas charging) has been 7 done using the above referred cylinder by human error. The refrigerant gas inside the heat pump unit is R-410a. When these two gases mix, the pressure level will go up instantaneously and the compressor is likely to burst mechanically."
10. Petitioner No.1 is a Manager of M/s. KEHEMS Technologies Pvt. Ltd and petitioner No.2 is the Factory Manager managing the unit at Indore, Madhya pradesh. They are hauled into these proceedings for offences punishable under Section 304A of the IPC. Section 304A of the IPC, reads as follows:
"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."
Section 304A of the IPC has, within its sweep, two components, for an offence to be alleged against, one, it should be a rash act or negligent act, which causes death of any person.
811. The allegation in the complaint and the opinion is that it has occurred due to a human error, as a result of mixture of two gases and the pressure level going up immediately, for the act at Grand Mercure Hotel, the petitioners, who are employees of M/s. KEHEMS Technologies Pvt. Ltd, who had entered into such agreement cannot be held responsible either for rash or negligent act, which are the necessary ingredients for an offence to become punishable under Section 304A of the IPC. The law in this regard is settled by line of judgments rendered by the Apex Court and that of this Court. The Apex Court in the case of KURBAN HUSSEIN MOHAMEDALLI RANGAWALLA V. STATE OF MAHARASHTRA4 , has held as follows:
"2. We shall first take up Section 304-A which runs thus:
"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."4
AIR 1965 SC 1616 9 The main contention of the appellant is that he was not present when the fire broke out resulting in the death of seven workmen by burning and it cannot therefore be said that he caused the death of these seven persons by doing any rash or negligent act. The view taken by the Magistrate on the other hand which appears to have been accepted by the High Court was that as the appellant allowed the manufacture of wet paints in the same room where varnish and turpentine were stored and the fire resulted because of the proximity of the burners to the stored varnish and turpentine, he must be held responsible for the death of the seven workmen who were burnt in the fire. We are however of opinion that this view of the Magistrate is not correct. The mere fact that the appellant allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it might be a negligent act, would not be enough to make the appellant responsible for the fire which broke out. The cause of the fire was not merely the presence of burners in the room in which varnish and turpentine were stored, though 10 this circumstance was indirectly responsible for the fire which broke out. But what Section 304-A requires is causing of death by doing any rash or negligent act, and this means that death must be the direct or proximate result of the rash or negligent act. It appears that the direct or proximate cause of the fire which resulted in seven deaths was the act of Hatim. It seems to us clear that Hatim was apparently in a hurry and therefore he did not perhaps allow the rosin to cool down sufficiently and poured turpentine too quickly. The evidence of the expert is that the process of adding turpentine to melted rosin is a hazardous process and the proportion of froth would depend upon the quantity of turpentine added. The expert also stated that if turpentine not slowly added to bitumen and rosin before it is cooled down to a certain temperature, such fire is likely to break out. It seems therefore that as turpentine was being added at about closing time, Hatim was not as careful as he should have been and probably did not wait sufficiently for bitumen or rosin to cool down and added turpentine too quickly. The expert has stated that bitumen or rosin melts at 300 degree F and if turpentine is added at 11 that temperature, it will catch fire. The flash point of turpentine varies from 76 to 110 degree F. Therefore the cooling must be brought down, according to the expert, to below 76 degree F to avoid fire. In any case even if that is not done, turpentine has to be added slowly so that there may not be too much frothing. Clearly therefore the fire broke out because bitumen or rosin was not allowed to cool down sufficiently and turpentine was added too quickly in view of the fact that the process was performed at closing time. It is clearly the negligence of Hatim which was the direct or proximate cause of the fire breaking out though the fact that burners were kept in the same room in which turpentine, and varnish were stored was indirectly responsible for the fire breaking out and spreading so quickly. Even so in order that a person may be guilty under Section 304-A, the rash or negligent act should be the direct or proximate cause of the death. In the present case it was Hatim's act which was the direct and proximate cause of the fire breaking out with the consequence that seven persons were burnt to death; the act of the appellant in allowing turpentine and varnish 12 being stored at a short distance was only an indirect factor in the breaking out of fire.
3. We may in this connection refer to Emperor v. Omkar Rampratap [(1902) IV 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 cause 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 Section 304-A. 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 13 stored, would not be enough to make him liable under Section 304-A, 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 proxinate and efficient cause without the intervention of another's negligence. The appellant must therefore be acquitted of the offence under Section 304-A."
(emphasis supplied) A Three Judge Bench of the Apex Court following the aforesaid judgment in the case of KURBAN HUSSEIN MOHAMEDALLI RANGAWALLA supra in the case of AMBALAL D. BHATT V. THE STATE OF GUJARAT5, has held as follows:
"10. It appears to us that in a prosecution for an offence under Section 304-A, 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 5 (1972) 3 SCC 525 14 result of a rash 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 been an answer and we would 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 November 12, 1962, in preparing Batch No. 211105, was the cause of deaths and whether those deaths were a direct consequence of the appellants' act, that is, whether the appellants' 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 causa causans; it is not enough that it may have been the cause sine qua non". This view has been adopted by this Court in several decisions. In Kurban Hussein Mohammedali Rangwala v. State of Maharashtra [(1965) 2 SCR 622] the accused 15 who had manufactured wet paints without a licence was acquitted of the charge under Section 304-A 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 Rehiman Mulani v. State of Maharashtra [(1968) 2 SCR 515] 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 that by itself was not sufficient to warrant a conviction under Section 304-A. It would be different if it can be established as in the case of Bhalchandra alias Bapu v. State of Maharashtra [(1968) 3 SCR 766] that deaths and injuries caused by the contravention of a 16 prohibition in respect of the substances 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."
(emphasis supplied) Following both the aforesaid judgments, a Co-ordinate Bench of this Court in Crl.P.No.9124/2016 in the case of M. SRINIVAS V. THE STATE BY YELAHANKA TRAFFIC POLICE, has held as follows:
"10. Section 304A Indian Penal Code deals with death by negligence. The section reads:
"Whoever causes the death of any person by doing any rash and 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."17
11. It is now well settled that in order to constitute an offence under section 304A of Indian Penal Code, the negligence imputed to the accused must be gross in nature. Though the term "gross" has not been used in section 304A of Indian Penal Code, in JACOB MATHEW vs. STATE OF PUNJAB & Others in (2005) 6 SCC 1, the Hon'ble Supreme Court while examining a case of criminal medical negligence by a Doctor under section 304A of Indian Penal Code, has reviewed the case law on the subject and in para 48 thereof, has held as under:
"(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e., gross or of a very high degree.
Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
18(6) The word 'gross' has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304-A IPC has to be read as qualified by the word 'grossly'."
12. In SUSHIL ANSAL vs. STATE through Central Bureau of Investigation (2014) 6 SCC 173, the Hon'ble Supreme Court in para 78 has held as under:
"There is no gainsaying that negligence in order to provide a cause of action to the affected party to sue for damages is different from negligence which the prosecution would be required to prove in order to establish a charge of 'involuntary manslaughter' in England, analogous to what is punishable under Section 304-A IPC in India. In the latter case it is imperative for the prosecution to establish that the negligence with which the accused is charged is 'gross' in nature no matter that Section 304-A IPC does not use that expression. What is 'gross' would depend upon the fact situation in each case and cannot, therefore, be 19 defined with certitude. Decided cases alone can illustrate what has been considered to be gross negligence in a given situation."
13. It is now well settled that, in order to fasten criminal liability for the offence under section 304A of Indian Penal Code, the prosecution is required to establish that the act of the accused No.1 was the proximate and immediate cause of death and that the death was caused without the intervention of another person's negligence. As held in SUSHIL ANSAL's case, supra, it must have been the causa causans; and not mere causa sine qua non.
14. In the instant case, petitioner herein is implicated in the alleged offence on the allegation that he was responsible for causing the accident by leaving heap of mud on the accident site. In Kurban Hussein Mohamedalli Rangawalla, supra, the Hon'ble Supreme Court dealt with an identical situation. In the said case, the allegation against the appellant therein was that he allowed the burners to be used in the same room in which varnish and turpentine were stored, which were alleged to be negligent act and fire resulted 20 because of the proximity of the burners. But the said contention was negatived by the Hon'ble Supreme Court by endorsing the view taken in EMPEROR vs. OMKAR RAMPRATAP in (1902) 4 Bombay LR 679, the Hon'ble Supreme Court has observed that, "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.304- A. 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.304-A, 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 another's 21 negligence. The appellant must, therefore, be acquitted of the offence under S.304-A."
(emphasis supplied)
12. In the light of the judgments rendered by the Apex Court and this Court as afore-quoted, the death of Sri. Jesvin M.V., an employee of M/s. KEHEMS Technologies Pvt. Ltd., in the accident cannot be laid against the petitioners, as the petitioners cannot be alleged of any rash or negligent act as is necessary under Section 304A of the IPC and its interpretation by the Apex Court and this Court in the aforesaid cases.
13. Insofar as offence punishable under Section 338 of the IPC, which is alleged against the other employee, who is injured also cannot be laid against the petitioners for the very same reason that is rendered hereinabove. The Apex Court while considering the purport of Section 338 of the IPC in the case of P.B.DESAI V. STATE OF MAHARASHTRA AND ANOTHER6, has held has follows:
6(2013) 15 SCC 481 22 "21. We have given our deep thoughts to the aforesaid submissions made by the learned Senior Counsel appearing for different parties. The provisions of Section 338 IPC have already been reproduced in the earlier part of this judgment. A perusal thereof would clearly demonstrate that before a person is held guilty of the offence, the following ingredients need to be established:
(a) Causing grievous hurt to a person;
(b) Grievous hurt should be the result of an act;
(c) Such act ought to have been rash and negligent;
(d) The intensity of commission of such an act ought to endanger human life or the personal safety of others.
48. Section 338 IPC explicitly lays down that only that "act" which is "so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished...". Thus the section itself carves out the standard of criminal negligence intended to distinguish between those whose failure is culpable and those whose conduct, although 23 not up to the standard, is not deserving of punishment."
(emphasis supplied)
14. In the light of the facts obtaining in the case at hand and the statute and the judgments rendered by the Courts interpreting both Section 304A and 338 of the IPC, further proceedings permitted to be continued against the petitioners would become an abuse of the process of the law and would result in miscarriage of justice.
15. For the aforesaid reasons, the following:
ORDER i. Criminal Petition is allowed.
ii. Proceedings pending in C.C.No.6755/2020 on the file of the XLI Additional Chief Metropolitan Magistrate, Bengaluru stands quashed qua the petitioners.
Sd/-
JUDGE SJK