Madras High Court
Sumathi vs The State Rep. By on 8 February, 2023
Crl.O.P.(MD)No.14476 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 03.02.2023
Pronounced on : 08.02.2023
CORAM
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
Crl.O.P.(MD).No.14476 of 2020
and
Crl.M.P.(MD).Nos.6796 & 6797 of 2020
Sumathi
... Petitioner/sole accused
Vs.
1.The State Rep. by
The Inspector of Police,
Chekkanoorani Police Station,
Madurai District.
(Crime No.375 of 2013)
... 1st Respondent/Complainant
2.Sakthivel ...2nd Respondent/De-facto Complainant
Prayer: Criminal Original Petition is filed under Section 482 Cr.P.C., to call for
the records pertaining to the charge sheet in S.C.No.313 of 2015 on the file of
the 4th Additional District Court, Madurai.
For Petitioner : Mr.R.Gandhi
Senior Counsel for
Mr.Henri Tiphague
1/16
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.14476 of 2020
For R-1 : Mr.R.Meenakshi Sundaram,
Additional Public Prosecutor.
For R-2 : No appearance
ORDER
The petitioner is an accused in S.C.No.313 of 2015 on the file of the 4 th Additional District Judge, Madurai, filed for the offences under Sections 286, 337, 338 and 304-A IPC r/w Section 9B(1)(a) of the Explosive Act, 1884.
2.The allegation in the charge sheet is that the petitioner is engaged in the business of manufacturing of fire crackers as proprietor of Anantham Fire Works. The said concern has a licence to manufacture the fire works. The said licence is renewed from time to time. The allegations in the charge sheet are that one Prabhu was the Foreman in the said concern. On 24.09.2013, at about 05.00 p.m, when the employees in the said concern were involved in the process of manufacturing of fire crackers, the occurrence took place, as a result of which, one employee, by name, Pothumani died on the spot and two other employees, by name, Vijaya and Chinnaponnu died at the hospital and 18 other employees suffered either grievous or simple injuries. The Foreman, by name, Prabhu, who was originally shown as an accused, also suffered burn injuries 2/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14476 of 2020 and succumbed to those injuries later. The allegation in the charge is that the concern did not adequately follow the safety regulations and also violated the licence conditions.
3.The allegations are that the concern did not appoint a qualified Supervisor to supervise the manufacture of crackers and impart the training as regards the safety measures to be adopted by the employees. It is further alleged that the fire crackers were prepared in an open space and not in the designated rooms. The concern had also not covered the floor with a rubber mat, which is mandatory. Because of the explosion, the roof in the cutting machine had fallen over one employee and caused injuries to 17 employees. It is also stated that the petitioner was also prosecuted under the Factories Act in STC Nos.81, 83, 84, 85, 88, 90, 92 and 95 of 2004 on the file of the Additional Chief Judicial Magistrate, Madurai. It is also an admitted fact that in all the cases, the petitioner was convicted on her plea of guilt and sentenced to pay a fine of Rs. 50,000/- each.
4(i).Mr.R.Gandhi, learned Senior Counsel appearing for the petitioner submitted that this is the second quash petition. The earlier quash petition filed in Crl.O.P(MD)No.9191 of 2016 was dismissed by this Court on 26.02.2020. 3/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14476 of 2020 The learned Senior Counsel further submitted that in the earlier quash petition, the petitioner did not raise any ground on merits. They had only canvassed that the violations alleged against the petitioner were subject matter of prosecution under the Factories Act and the prosecution for Section 304-A IPC on the basis of very same allegations would amount to double jeopardy. This Court found that the ingredients of the offence under the Factories Act and the offence under Section 304-A IPC are different and hence, the prosecution cannot be said to be barred for the reason that it would amount to double jeopardy. The learned Senior Counsel further submitted that this Court had not gone into the merits of the matter and left open the contentions and defences of the petitioner on merits. The learned Senior Counsel, therefore, submitted that the instant quash petition has been filed on the ground that on merits the allegations against the petitioner do not constitute the offences alleged against the petitioner and hence, maintainable.
(ii).The learned Senior Counsel further submitted that the petitioner being a lady was managing the affairs through her employees, mainly, the Foreman. The Foreman, who was a qualified person was in-charge directly in following the safety regulations. Unfortunately, he also died in the accident that took place on the fateful day. The allegations in the charge sheet would show that it is a case of an accident. In any case, even if the allegations 4/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14476 of 2020 constitute negligence, they would not constitute gross negligence as against the petitioner. The prosecution in order to show that the petitioner was involved in the offence under Section 304-A IPC would have to show that the death happened due to the direct result of the rashness or negligence on the part of the petitioner, it must be proximate without the intervention of another's negligence. The learned Senior Counsel further submitted that in the absence of any evidence to show that as the occurrence took place as a direct result of negligence on the part of the petitioner, the petitioner cannot be prosecuted on the ground that she is vicariously liable. The learned Senior Counsel further submitted that the petitioner had also paid sufficient compensation to all the victims and the legal heirs of the deceased victims and produced proof in support of the same. The learned Senior Counsel relied upon the following Judgments of this Court in support of his submission.
1.Crl.O.P(MD)No.20177 of 2021 dated 21.04.2022 (M.Muruganantham vs. State)
2.Crl.O.P(MD)No.2225 of 2022 dated 20.04.2022 (Nagasankar vs. the Inspector of Police)
3.Crl.O.P(MD)No.5720 of 2021 dated 12.04.2022 (A.P.Selvaraj vs. State) 4 CDJ 2022 MHC 2795 (S.Aswin Chandran vs. State)
5.Crl.O.P(MD)No.10930 of 2019 dated 30.09.2022 (Rajesh vs. State) 5/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14476 of 2020
6.Crl.O.P.Nos.5457 and 5438 of 2016 dated 02.12.2022 (M/s Malur Tubes Private Limited vs. State) 7.2016(3) MWN (Cr.) 207 (S.Sugumar vs. State)
8.Crl.O.P.Nos.11243 and 11244 of 2018 dated 11.01.2022 (Sivagnanamoorthy vs. Deputy Director)
9.Crl.O.P(MD)No.1041 and 1568 of 2022 dated 03.02.2022 (Selvakumar vs. State) 10.1965 AIR 1616 (Kurban Hussein Mohammedali Rangwala vs. State of Maharastra)
11.(2008)14 SCC 479 (Mahadev Prasad Kousik vs. State of U.P) 12.2013(1) LW (Cri) 45 (Dr.Jeppair vs. State of Tamil Nadu)
13.Crl.A.No.(S).1157 of 2019 (Anilkhadkiwala vs. State Govt. of NCT of Delhi) and
14.Crl.O.P(MD)No.9191 of 2019 dated 26.02.2020 (Sumathi vs. State)
5.The learned Additional Public Prosecutor submitted that this is the case where the petitioner is guilty of gross negligence as the concern run by her had violated the conditions of licence which has caused the death of nearly 4 employees and grievous injuries to 17 others. The second quash petition is not maintainable since the learned Judge who dismissed the quash petition, had specifically observed that the case cannot be quashed as there is a frequent 6/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14476 of 2020 recurrence of such accidents in factories, manufacturing crackers and fire works; and the prosecution should continue to its logical end. The learned Additional Public Prosecutor further submitted that the petitioner who is the proprietor of the concern, had clearly violated the conditions of licence which has caused the unfortunate occurrence. Mere payment of compensation would not absolve the petitioner from the offence.
6.Heard the learned counsel appearing on either side and perused the materials available on records.
7.This Court finds that the earlier quash petition was filed on the ground that the prosecution under Section 304-A IPC is barred because the petitioner was prosecuted under the Factories Act for the very same violations and found guilty by the Judicial Magistrate. This Court found that the prosecution under the Factories Act would not bar prosecution under Section 304-A IPC since the ingredients of the two offences are different. Hence, the prosecution under Section 304-A IPC would not be hit by Section 300 Cr.P.C or by Article 20(2) of the Constitution of India. This Court had specifically held that it had not gone into the merits of the matter. The instant quash petition has not been filed on a different ground, namely, that the offence under Section 304-A IPC and 7/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14476 of 2020 other offences are not made out on the allegation spelt out by the prosecution. The learned Senior Counsel relied upon the Judgment of this Court in Crl.O.P(MD)No.3146 of 2016, wherein, this Court had entertained the second quash petition filed on the grounds, which were not raised in the first quash petition. The relevant observation is extracted hereunder:-
“8. In this case, as stated above, these petitioners were excluded in the final report filed by the Police on the specific finding of the Investigating Officer that the allegation of bigamy is false. When Saralarani (A8) was selected by Tamil Nadu Public Service Commission, from out of the blue, the Police filed a supplementary charge sheet, including Saralarani and her family members as accused, which smacks of arbitrariness. These points were not raised before this Court in the earlier petition. Hence, this Court is not inclined to dismiss this quash petition on the said ground.”
8.The learned Senior Counsel also relied upon the Judgment of the Division Bench of the Hon'ble Andhra Pradesh High Court reported in 2001 CRI.L.J.1891 (Kondalagutta Chinni Krishnaiah vs. State of A.P), wherein, the Hon'ble Andhra Pradesh High Court had entertained the second quash petition based on the Judgment of the Hon'ble Apex Court reported in AIR 1975 SC 1002 (Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Mohan Singh). The Hon'ble Andhra Pradesh High Court held that 8/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14476 of 2020 when a second quash petition was filed on a different ground, there is no bar to entertain the same. In the instant case, this Court finds that in the earlier petition, the only ground raised by the petitioner was that the prosecution was hit by Article 20(2) of the Constitution of India and Section 300 of Cr.P.C. The points raised in the instant quash petition were not raised in the earlier quash petition. Therefore, this Court holds that the second quash petition filed on a different ground is maintainable.
9.As regards the ground raised by the petitioner that the allegations do not constitute Section 304-A IPC, it is well settled law that any prosecution for the offence under Section 304-A IPC, the Court has to examine whether the alleged act of the accused is the direct result of the rash or negligent act and the said act was the proximate cause. The act of the accused must be causa causans i.e., the immediate cause and not merely causa sine quo non.
10.In 2014(6) SCC 173 (Sushil Ansal vs. State through Central Bureau of Investigation), the Hon'ble Apex Court had elaborately considered this aspect and held as follows:-
“81. Suffice it to say that this Court has in Kurban Husseins case accepted in unequivocal terms the correctness of 9/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14476 of 2020 the proposition that criminal liability under Section 304-A of the IPC shall arise only if the prosecution proves that the death of the victim was the result of a rash or negligent act of the accused and that such act was the proximate and efficient cause without the intervention of another persons negligence. A subsequent decision of this Court in Suleman Rahiman Mulani v. State of Maharashtra AIR 1968 SC 829 has once again approved the view taken in Omkar Rampratap case that the act of the accused must be proved to be the causa causans and not simply a causa sine qua non for the death of the victim in a case under Section 304-A of the IPC. To the same effect are the decisions of this Court in Rustom Sherior Irani v. State of Maharashtra 1969 ACJ 70; Balchandra v. State of Maharashtra AIR 1968 SC 1319;Kishan Chand v. State of Haryana(1970) 3 SCC 904; S.N Hussain v. State of A.P. (1972) 3 SCC 18; Ambalal D. Bhatt v. State of Gujarat (1972) 3 SCC 525 and Jacob Mathew's case.
82 To sum up: for an offence under Section 304-A to be proved it is not only necessary to establish that the accused was either rash or grossly negligent but also that such rashness or gross negligence was the causa causans that resulted in the death of the victim.
83 As to what is meant by causa causans we may gainfully refer to Black#s Law Dictionary (Fifth Edition) which defines that expression as under:
“Causa causans-The immediate cause; the last link in the chain of causation.10/16
https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14476 of 2020 The Advance Law Lexicon edited by Justice Chandrachud, former Chief Justice of India defines Causa Causans as follows:
“Causa causans-The immediate cause as opposed to a remote cause; the last link in the chain of causation#; the real effective cause of damage.
84. The expression #proximate cause# is defined in the 5th edition of Blacks Law Dictionary as under:
“Proximate cause-That which in a natural and continuous sequence unbroken by any efficient intervening cause, produces injury and without which the result would not have occurred. Wisniewski vs. Great Atlantic & Pac. Tea Company., A2d at p.
748. That which is nearest in the order of responsible causation.
That which stands next in causation to the effect, not necessarily in time or space but in causal relation. The proximate cause of an injury is the primary or moving cause, or that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the accident could not have happened, if the injury be one which might be reasonably anticipated or foreseen as a natural consequence of the wrongful act. An injury or damage is proximately caused by an act, or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.” 11/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14476 of 2020
11.The above Judgment was referred by this Court in the Judgment reported in 2016(3) MWN (Cr.) 207 (S.Sugumar vs. State). The allegations in the instant case are that the employees were made to manufacture of fire crackers in an open space and not in the designated room; that proper supervisor was not appointed; and that the rubber mat was not provided as mandated under the licence conditions. The allegations, at best, constitute a clear violation of the conditions of the licence. There is no doubt about that. In fact, the petitioner has been prosecuted in her capacity as the proprietor of the concern for the said violations and she was convicted on her plea admitting her guilt.
12.The prosecution has not stated anywhere as to how this violation of these conditions were the immediate cause for the accident. There is nothing in the entire records to show that the accident occurred only to due to the violations alleged by the prosecution. The violations of the conditions/licence in the instant case, does not ipso facto lead to the conclusion that they were the proximate cause for the occurrence. The prosecution does not allege one single cause for the accident. Several factors a combination of which, according to the prosecution, has caused the occurrence. In the criminal law, the act of the accused must be the causa causans, the proximate cause for the occurrence. It is 12/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14476 of 2020 not the case of the prosecution that these violations happened only on the fateful day. According to the prosecution, the violations were there even prior to the accident. Therefore, these violations cannot be said to be the immediate cause for the accident. It is alleged by the prosecution that the training supervisor was not employed to supervise and impart training to the employees as to handle fire crackers. The Foreman, who was directly in-charge of these acts, is unfortunately no more. In the absence of any material in the final report to suggest that the act of the petitioner was the immediate cause/causa causans for the occurrence, the charge under Section 304-A, would not lie.
13.Further, the prosecution has to not only establish causa causans, but also gross negligence to prove the charge under Section 304-A IPC. The allegations of violations which have been spelt out by the prosecution are not of such a nature as to call it gross negligence. However, the petitioner may be liable for tort of negligence and not for the crime of negligence. Admittedly, the petitioner has paid compensation to the victims for the said tort. Therefore, this Court is of the view that the offence under Section 304-A IPC and other offences based on negligence namely, Sections 338, 337 and 286 IPC are not made out in the facts of the instant case.
13/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14476 of 2020
14.That apart, there is no question of vicarious liability in criminal law unless the statute specifically provides for that. For the offence under Section 304-A IPC, a person cannot be charged on the basis of vicarious liability.
15.As regards the offence under Section 9B(1)(a) of the Explosive Act, 1884, the provision reads as follows:-
9B. Punishment for certain offences.—(1) Whoever, in contravention of rules made under section 5 or of the conditions of a licence granted under the said rules—
(a) manufactures, imports or exports any explosive shall he punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both;
16.There is absolutely no allegation in the impugned charge sheet as to how the petitioner had manufactured the explosive substance in violation of any rule. Even according to the prosecution, manufacturing of explosive substance has not been stated to be in violation of conditions of licence. Though the prosecution case is that the petitioner has violated the conditions of licence and the rules framed under the Explosives Act, they have not spelt out 14/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14476 of 2020 as to what are the conditions and rules that have been violated. Therefore, this Court is of the view that the offence under Section 9B(1)(a) of the Explosive Act, 1884 is also not made out.
17.For the above said reasons, the impugned charge sheet is liable to be quashed. Accordingly, this Criminal Original Petition is allowed. The Charge Sheet in S.C.No.313 of 2015 on the file of the 4th Additional District Court, Madurai is quashed. Consequently, connected miscellaneous petitions are closed.
.02.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
skn
To
1.The IV Additional District Court, Madurai.
2.The Inspector of Police,
Chekkanoorani Police Station,
Madurai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
15/16
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.14476 of 2020
SUNDER MOHAN, J.
skn
Order made in
Crl.O.P.(MD).No.14476 of 2020
and
Crl.M.P.(MD).Nos.6796 & 6797 of 2020
08.02.2023
16/16
https://www.mhc.tn.gov.in/judis