Himachal Pradesh High Court
Amit Singla vs State Of H.P.& Another on 6 October, 2023
Author: Virender Singh
Bench: Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MMO No.280 of 2022 Reserved on : 24.8.2023 Decided on : 06.10.2023 .
Amit Singla ...Petitioner
Versus
State of H.P.& Another ...Respondents
____________________________________________________ of Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting? ____________________________________________________ rt For the Petitioner : Mr. Shrawan Dogra, Senior Advocate with Ms. Srishti Chauhan, Advocate.
For the Respondents : Mr. Mohinder Zharaick & Mr. Tejasvi Sharma, Addl. A.G. with Ms. Leena Guleria, Deputy Advocate General, for respondent No.1-State.
Mr. Dhiraj Thakur,
Advocate, for respondent
No. 2.
Virender Singh, Judge
Petitioner Amit Singla has filed the present petition, under Section 482 of the Code of Criminal Procedure, before this Court, with a prayer to quash FIR No. 77 of 2018, dated 3.12.2018, registered under ::: Downloaded on - 07/10/2023 20:34:21 :::CIS 2 Sections 336, 337, 338 and 304-A of the Indian Penal Code (hereinafter referred to as 'the IPC'), with Police Station Bhabanagar/Nichar, District Kinnaur, H.P., as .
well as, the resultant proceedings thereto, which are stated to be pending before learned Chief Judicial Magistrate, Kinnaur at Reckong Peo (hereinafter of referred to as 'trial Court').
2. Petitioner has sought the relief on the ground rt that widening work of the two lane road between 322/0 to 329/0 on National Highway (NH-05) in District Kinnaur, was awarded to him.
2.1. After award of the work, the work had been started, as per the stipulations, as contained in the Standard Bidding Document. On 11.9.2018, the District Magistrate, Kinnaur had authorized the firm of the petitioner to carry out the work and issued the directions to complete the work, on war footing and in a time bound manner. The work, so awarded, is stated to be of utmost importance.
2.2. Since, the work awarded to the petitioner was time consuming and it was to be completed in a ::: Downloaded on - 07/10/2023 20:34:21 :::CIS 3 time bound manner, as such, he had authorized one Ashok Kumar Kataria to supervise the work, at Kinnaur, in his absence. The petitioner had also .
engaged a sub-contractor to undertake certain segment of work. He had also deputed adequate number of civil engineers to execute the work, so allotted.
of 2.3. On 3.12.2018, FIR No. 77 of 2018 was registered under Sections 336, 337 and 304-A IPC, on rt a statement made by Civil Engineer, Sushil Kumar (respondent No.2), who was deputed by the petitioner to execute the work. In the FIR, so registered, it was alleged that on 3.12.2018, at about 1.00 p.m., the boulders started falling on the road, as a result of blasting being done, near Latuska. After blasting, two excavator machines were deployed, at the spot, in order to clear the debris. When, the boulders were being thrown below the valley side, the same got entangled in the network wire of the army, which was loosely attached to a pole, erected on the side of the road. The wire got intertwined with the boulder and resulted into ::: Downloaded on - 07/10/2023 20:34:21 :::CIS 4 uprooting the pole, leading to the death of Shri Suneel Kumar and injuring two other persons.
2.4. The said accident is attributed to the .
Management of the firm of the petitioner, the sub-
contractor and the driver of the excavator machine.
After registration of the FIR, Police conducted of investigation and submitted report under Section 173(2) of the Cr. P.C., under Sections 336, 337,338 and rt 304-A of the IPC, by arraying the petitioner, as one of the accused.
3. Asserting the fact that the work was being executed by the sub-contractor and the said work was being supervised by the person, deputed by the petitioner. It is the case of the petitioner that no negligence can be attributed to the petitioner. The petitioner, although, is the proprietor of the Firm executing the aforementioned work, but, he was neither present at the spot, nor was supervising the operations of the aforementioned site. At the relevant time, petitioner was in Shimla, in order to review the progress of the work, being executed.
::: Downloaded on - 07/10/2023 20:34:21 :::CIS 54. In a nut-shell, it is the case of the petitioner that he has not done any act, for which, he can be held criminally liable, for the offences, which have been .
mentioned in the FIR in question.
5. On the basis of above facts, petitioner has sought relief of quashing of FIR, as well as, resultant of proceedings, pending in the learned trial Court.
6. When put to notice, the Police filed status rt report, disclosing therein that the widening work was allotted to the petitioner. The stand, as taken by the petitioner, has further been contested by pleading that petitioner was not entitled to authorize Mr. Ashok Kumar Kataria to look after the work, in his absence.
He was also not authorized to engage the sub-
contractor to undertake the work.
6.1. It has been alleged against the petitioner that he, being the main Contractor, failed to provide safety instruments to the workers, at the spot and due to his negligent act, one person has lost his life. The carelessness and negligence of the petitioner has been ::: Downloaded on - 07/10/2023 20:34:21 :::CIS 6 highlighted by pleading that he was neither present at the spot nor was supervising the operations, at the site.
6.2. On the basis of above facts, a prayer has been .
made to dismiss the petition.
7. Alongwith the petition, report under Section 173(2) of Cr. P.C. has also been annexed. According to of the said report, the Police filed charge-sheet, under Sections 336,337, 338 and 304-A of the IPC, against the rt petitioner. The allegations against him, in the report under Section 173(2) of the Cr. P.C. are that the petitioner had negligently done the work, by subletting the contract to one Bal Krishan @ Balu, who had not provided safety instruments to the workers.
8. The provisions of Sections 336, 337, 338 and 304-A IPC are reproduced as under:
Section 336. Act endangering life or personal safety of others.-Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both.::: Downloaded on - 07/10/2023 20:34:21 :::CIS 7
337. Causing hurt by act endangering life or personal safety of others.- Whoever causes hurt to any person by doing any act so rashly or .
negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
of
338. Causing grievous hurt by act endangering life or personal safety of others- Whoever causes grievous hurt to any person by doing any act so rt rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, TOD or with both.
"304-A. 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."
(self emphasis supplied)
9. In order to put criminal liability upon the petitioner, there is mandatory requirement that some act must have been done by the petitioner. If the ::: Downloaded on - 07/10/2023 20:34:21 :::CIS 8 allegations, as contained in the FIR, as well as, in the report under Section 173(2) of the Cr. P.C., are taken to be, as it is, then, no conclusion can be drawn that he .
has done some act. At the best, it can be said that he is guilty of omission. Whereas, in the bare language of Sections, as reproduced above, for omissions, no of criminal liability can be fastened. There is nothing on record to show that the petitioner was bound to do some rt act which he had not done. Only vague allegations have been levelled. Learned Additional Advocate General could not point out any document or clause of contract, according to which, his alleged omission could be made a ground to prosecute him.
10. In Sections 336, 337, 338 and 304-A of the IPC, the mandatory requirement is that the accused has committed any act rashly and negligently. It is not the case of the prosecution that the accused was present at the spot and was doing some act at the spot. For his vicarious liability, the omissions, as alleged, in the report, he could not be held to be liable for the offences, ::: Downloaded on - 07/10/2023 20:34:21 :::CIS 9 which have been mentioned in the report under Section 173(2) Cr. P.C.
11. There is nothing in the report, under Section .
173(2) Cr. P.C., or in the contents of the FIR, that the death of one person, working there, was the direct result of rash and negligent act of the petitioner.
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12. Hon'ble Supreme Court in 'Kurban Hussein Mohamedalli Rangawala versus State of rt Maharashtra, reported in AIR 1965 SC 1616, has elaborately discussed the law, in this regard. Relevant para-3 of the judgment is reproduced as under:
3. We shall first take up S.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." 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 ::: Downloaded on - 07/10/2023 20:34:21 :::CIS 10 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 of 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 rt merely the presence of burners in the room in which varnish and turpentine were stored, though this circumstance was indirectly responsible for the fire which broke out. But what S. 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 is not slowly added to bitumen and rosin before it is ::: Downloaded on - 07/10/2023 20:34:21 :::CIS 11 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 that temperature, it will catch fire. The flash point of turpentine varies from 76 to 110 of 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, rt 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 vamish 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 s. 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 ::: Downloaded on - 07/10/2023 20:34:21 :::CIS 12 turpentine and varnish being stored at a short distance was only an indirect factor in the breaking out of fire.
4. We may in this connection refer to Emperor v.
.
Omkar Rampratap, 4 Bom LR 679, where Sir Lawrence Jenkins had to interpret S. 304-A and observed as follows-
"To impose criminal liability under S. 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and of the 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 rt 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 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 negligence. The appellant ::: Downloaded on - 07/10/2023 20:34:21 :::CIS 13 must therefore be acquitted of the offence under S. 304-A. (self emphasis supplied)
13. Same view has again been reiterated by the .
Hon'ble Supreme Court in 'Ambalal D. Bhatt versus the State of Gujarat', reported in (1972) 3 SCC 525.
Relevant para-10 of the judgment is reproduced, as under:
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10. It appears to us that in a prosecution for an offence under Section 304A, the mere fact that an rt 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 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 12-11-62 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 appellant's act is the direct result of a rash and negligent act and that act was the proximate and efficient cause without the ::: Downloaded on - 07/10/2023 20:34:21 :::CIS 14 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 cause causans; It is not .
enough that it may have been the causa sine qua non". This view has been adopted by this Court in several decisions. In Kurban Hussein Mohammedali Rangwala v. State of Maharashtra, the who had accused who had manufactured wet paints without a licence was acquitted of the of charge under Section 304A because it was held that the mere fact that he allowed the burners to be used in the same room in which varnish and rt 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 Suieman Rahiman Mulani v. State of Maharashtra 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 304A. It would be different if it can be established as in the case of Bhalchandra v. State of Maharashtra that deaths and injuries caused by the contravention of a prohibition in respect of the substances which are highly dangerous as in the ::: Downloaded on - 07/10/2023 20:34:21 :::CIS 15 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."
14. When, no rash and negligent act has been attributed to the petitioner, then, his alleged omission of is too short to prosecute the petitioner for the offences, as alleged in the report, under Section 173(2) of the Cr.
rt P.C.
15. Consequently, the present petition is allowed by quashing the FIR No. 77 of 2018, dated 3.12.2018, registered under Sections 336, 337, 338 and 304-A of the IPC, with Police Station Bhabanagar/Nichar, District Kinnaur, H.P., as well as, resultant proceedings, pending in the learned trial Court.
16. The pending application(s), if any, are also disposed of.
(Virender Singh) Judge October 06, 2023 (Kalpana) ::: Downloaded on - 07/10/2023 20:34:21 :::CIS