Madhya Pradesh High Court
Girish Tiwari vs The State Of Madhya Pradesh on 20 November, 2020
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
S. B. : Hon'ble Shri Justice Rajendra Kumar Srivastava
M.Cr.C.No.28770/2019
Girish Tiwari & Another
Vs
The State of Madhya Pradesh & Another
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Petitioner No.1 Girish Tiwari is appeared in person.
Shri S.P. Mishra, learned counsel for the petitioner
No.2.
Shri Santosh Yadav, learned P.L. for the respondent
No.1/State.
None for the respondent No.2.
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ORDER
(20 .11.2020) The instant petition under Section 482 of Cr.P.C. has been preferred by the petitioners for quashing the FIR in Crime No.09/2019 registered at Police-Station Bahari, District-Sidhi for the offence punishable under Section 304-A of IPC.
2. As per prosecution case, on the basis of marg intimation report, the police has registered the FIR stating therein that on 03.09.2018, at about 03:00 pm, under the 2 M.Cr.C.No.28770/2019 instruction of petitioner No.1, petitioner No.2 and one Ram Prasad Singh Gond were cutting tree which had fallen down onto electric cable resulting into collapse of electric pole over the deceased-Gujratiya who died on the spot. Thereafter, police investigated the matter and filed the charge-sheet before the concerned Court.
3. Petitioner No.1-Girish Tiwari as well as counsel for the petitioner No.2 submit that no offence is made out against the petitioners as ingredients of Section 304-A of IPC is not satisfied in the case. They submit that on the day of incident, due to storm, the tree was broken and fell down over the electric pole and deceased came under its grip and died. Thereafter, petitioners and other persons came there and removed her body outside which was lying below the pole and informed the husband of deceased. Initially the police did not find any case against the petitioners but subsequently due to enmity with some person of locality, they have registered the case against the petitioners. They further submit that no negligence was committed on their part. Further, they also submit that petitioner No.1 is practicing advocate and law abiding 3 M.Cr.C.No.28770/2019 person. Petitioners have submitted several representations to the authorities concerned for free and fair investigation in the matter but the authority has not given any attention thereupon. The story is concocted and contained with malice intention. They also submit that death of deceased is natural but inquiry officer failed to consider this fact. On application, the S.P. has directed his subordinate to re- inquire the case but same was not complied with by him. The FIR in question is complete abuse of process of law and filed for harassing the petitioners only. Besides the above, they submit that respondent No.2 Shivratan who reported the incident has given his affidavit in favour of the petitioners stating therein that the incident was an act of god and deceased died of natural death. With the aforesaid, they pray for quashment of FIR against them.
4. On the other hand, learned P.L. for the respondent/State opposes their submissions stating that there is sufficient material available in the case against the petitioners for constituting the offence under Section 304-A of IPC. He submits that Santosh Saket son of deceased is eye witness of the case who saw the incident. 4 M.Cr.C.No.28770/2019 It is further submitted that respondent No.2 Shivratan is only informer in the case and on the basis of his affidavit, FIR may not be quashed. There is huge possibility of conviction of the petitioners in the case. With the aforesaid, he prays for dismissal of the said petition.
5. Heard both the parties and perused the case diary.
6. By way of filing this petition under Section 482 of Cr.P.C., the petitioners are praying for quashment of FIR, therefore, it would becomes necessary to consider the scope and ambit of Court's powers under Section 482 Cr.P.C. The High Court has inherent power to do substantial justice in the case and also to prevent abuse of process of law and to secure the ends of justice. However, the Court should exercise its power sparingly, carefully and with great caution. In the case of State of Haryana Vs. Bhajan Lal reported in 1992 SCC (Cri) 426, the Hon'ble Apex Court has laid down the principle relating to the exercise of the extraordinary power of High Court under Section 482 Cr.P.C., same is reproduced here in under :-
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law 5 M.Cr.C.No.28770/2019 enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) where the un-controverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that 6 M.Cr.C.No.28770/2019 there is sufficient ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
7. Further, in the case of Madhavrao Jiwajirao Scindia Vs. Sambhajirao Chandrojirao Angre reported in (1988) 1 SCC 692, the Hon'ble Apex Court observed as under :-
"7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."7 M.Cr.C.No.28770/2019
8. Further, in the case of R. Kalyani Vs. Janak C.Mehta & Others reported in (2009) 1 SCC 516, after relying upon its earlier pronouncements, the Hon'ble Appex Court has held as under :-
"15. Propositions of law which emerge from the said decisions are :
(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.
16. It is furthermore well known that no hard and fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Section 482 and 483 of the Code of Criminal Procedure had been introduced by the Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the Superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on 8 M.Cr.C.No.28770/2019 the basis of a false and wholly untenable complaint."
9. Further, offence of Section 304-A of IPC is involved in the case which provides the punishment for causing death by negligence. Same is quoted as under:
"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.]"
10. Section 304-A of IPC deals with homicidal death by rash or negligent act. It covers those cases where death is caused without 'intention' or 'knowledge'. It applies to acts which are rash or negligent and are directly the cause of death of another person. In the case of Sushil Ansal v. State, (2014) 6 SCC 173, the Hon'ble Apex Court has held as under:-
"80. We may now advert to the second and an equally, if not, more important dimension of the offence punishable under Section 304-A IPC viz. that the act of the accused must be the proximate, immediate or efficient cause of the death of the victim without the intervention of any other person's negligence. This aspect of the legal requirement is also settled by a long line of decisions of the courts in this country. We may at the outset refer to a Division Bench decision of the High Court of Bombay in Emperor v. Omkar Rampratap [(1902) 4 Bom LR 679] where Sir Lawrence Jenkins speaking for the Court summed up the legal position in the following words:9 M.Cr.C.No.28770/2019
"... to impose criminal liability under Section 304-A of the Penal Code, 1860, it is necessary that the act should have been the direct result of a rash and negligent act of the accused and that act must be proximate and efficient cause without the intervention of another negligence. It must have been the causa causans; it is not enough that it may have been the causa sine qua non."
the above statement of law was accepted by this Court in Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra , AIR 1965 SC 1616. We shall refer to the facts of this case a little later especially because Mr Jethmalani, learned counsel for the appellant Sushil Ansal, placed heavy reliance upon the view this Court has taken in the fact situation of that case.
81. Suffice it to say that this Court has in Kurban Hussein case [Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra, AIR 1965 SC 1616 ] accepted in unequivocal terms the correctness of the proposition that criminal liability under Section 304-A 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 person's negligence. A subsequent decision of this Court in Suleman Rahiman Mulani v. State of Maharashtra [Suleman Rahiman Mulani v. State of Maharashtra, AIR 1968 SC 829 : 1968 Cri LJ 1013] has once again approved the view taken in Omkar Rampratap case [(1902) 4 Bom LR 679] 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 IPC. To the same effect are the decisions of this Court in Rustom Sherior Irani v. State of Maharashtra [Rustom Sherior Irani v. State of Maharashtra, 1969 ACJ 70 (SC)], Bhalchandra v. State of 10 M.Cr.C.No.28770/2019 Maharashtra [Bhalchandra v. State of Maharashtra, AIR 1968 SC 1319 : (1968) 3 SCR 766 : 1968 Cri LJ 1501] , Kishan Chand v. State of Haryana [(1970) 3 SCC 904] ,S.N. Hussain v. State of A.P. [S.N. Hussain v. State of A.P., (1972) 3 SCC 18 : 1972 SCC (Cri) 254] , Ambalal D. Bhatt v. State of Gujarat [(1972) 3 SCC 525 : 1972 SCC (Cri) 618] and Jacob Mathew case [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005 SCC (Cri) 1369] .
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 (5th Edn.) which defines that expression as under:
"Causa causans.--The immediate cause; the last link in the chain of causation."
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 Edn. Of Black's 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 v. Great Atlantic & Pacific Tea Co.[226 Pa Super 574 : 323 A2d 744 (1974)] , 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 11 M.Cr.C.No.28770/2019 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. Now under the light of above said provisions and principle, this Court shall examine the facts of the present case.
12. On perusal of case diary, it is apparent that three persons have been charge-sheeted by the police for the alleged incident. As per prosecution, in the field of petitioner No.1, a tree was being cut down by petitioner No.2 and one Ram Prasad Singh Gond under the instructions of petitioner No.1. The act attributed to petitioner No.1 is that he was instructing the petitioner No.2 and other co-accused for cutting a tree of his field. Further, the allegations against the petitioners are that due to their negligence while cutting tree, the electric pole 12 M.Cr.C.No.28770/2019 collapsed and fallen down over the deceased, resulting into her death.
13. The learned counsel for the petitioners have filed an affidavit of respondent No.2-Shivratan who informed the police about the incident and on his instance, the police registered the marg intimation report. Respondent No.2 Shivratan is brother-in-law (dever) of deceased. On perusal of affidavit filed by respondent No.2-Shivratan, it appears that he has denied to agree the incident as offence accepting that the same was act of God. The police has recorded the statements of husband and son of deceased and they have not appeared before this Court in support of petitioners' arguments. Therefore, merely on the basis of affidavit filed by an informer of incident, FIR cannot be quashed.
14. Now, this Court will see whether necessary ingredients for constituting the offence under Section 304-A of IPC are satisfied in the case against the petitioners ?
15. The police has recorded the statements of some witnesses and on perusal thereof, statement of 13 M.Cr.C.No.28770/2019 Santosh Saket (son of deceased) is important as he claimed himself as eye witness of the case. As per Santosh Saket when he came out from his house, he saw that his mother (deceased) was collecting fire wood and suddenly electric pole was broken and had fallen down over her which caused her death on the spot. He stated that the petitioner No.1 was cutting down a tree by engaging some persons from Pandey Ara Mill and the tree was fallen down onto electric cable, resulting into breakage of abovesaid electric pole. The other witnesses have also stated almost same version about the act of petitioners.
16. On perusal of material annexed with the charge-sheet, prima facie, it appears that petitioner No.1 was present on the spot, instructing other co-accused for cutting down the tree. In view of the settled legal position of law that to constitute the offence under Section 304-A of IPC there should be direct nexus of accused with the incident and act of the accused must be the proximate, immediate or efficient cause of the death of the victim without intervention of any other person's negligence. However, in the case, petitioner No.2 and other 14 M.Cr.C.No.28770/2019 co-accused-Ramsingh Gond were cutting down the tree but it appears that they were doing so on the instruction of petitioner No.1. It is a matter of trial that what instructions were being given by the petitioner No.1 to petitioner No.2 and other co-accused. Prima facie, it can not be said that petitioner No.1 does not have any role in the alleged incident. Petitioners take the defence that the incident was Act of God in form of heavy storm but same can also be raised before the trial Court during trial. At this stage, under extraordinary jurisdiction this Court is not supposed to embark upon the enquiry whether the allegations in the FIR and the charge-sheet were reliable or not and thereupon to render definite finding about truthfulness or veracity of the allegations. These are matters which can be examined only by the concerned court after the entire material is produced before it on a thorough investigation and evidence is led. The Court also would not look to any document relied by the defence.
17. Therefore, considering the allegations leveled against the petitioners as well as other material available in the case diary, this Court does not find any reason to 15 M.Cr.C.No.28770/2019 invoke its inherent jurisdiction under Section 482 Cr.P.C. and thus, this petition is hereby dismissed.
18. However, trial Court is directed to proceed in the case without being influenced from any finding of this Court.
(Rajendra Kumar Srivastava) Judge sp Digitally signed by SAVITRI PATEL Date: 2020.11.20 17:48:16 +05'30'