Gujarat High Court
Dharmendrabhai @ Bakabhai Joitaram ... vs State Of Gujarat on 6 May, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5325 of 2013
With
R/CRIMINAL MISC.APPLICATION NO. 25358 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DHARMENDRABHAI @ BAKABHAI JOITARAM PATEL & 5 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR J M PANCHAL, SR. ADVOCATE with MR NANDISH THACKER, ADVOCATE for
THAKKAR AND PAHWA ADVOCATES(1357) for the Applicant(s) No. 1,2,3,4,5,6
NOTICE SERVED BY DS for the Respondent(s) No. 2
MS M D MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 06/05/2022
COMMON ORAL JUDGMENT
1. Heard learned Senior Advocate Mr. J.M. Panchal with Advocate Mr. Nandish Thacker for Thakkar and Pahwa Advocates for the applicants and learned APP Ms. M.D. Mehta for the respondent-State in Criminal Misc. Application No. 5325 of 2013 and learned Advocate Mr. K.P. Raval with Page 1 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 learned Advocate Mr. Manav Mehta for the applicants and learned APP Ms. M.D. Mehta for the respondent-State in Criminal Misc. Application No. 25358 of 2017.
2. Issue Rule in Criminal Misc. Application No. 5325 of 2013. Learned APP Ms. Mehta waives service of Rule on behalf of the respondent-State.
3. The applicants of both the applications pray for quashing of the FIR being C.R. No.I- 29 of 2013 registered with Mahidharpura Police Station, Surat, on 28.02.2013, for the offences punishable under Section 304( Part- II), 337, 338 and 114 of the Indian Penal Code.
4. The said FIR which is registered at the instance of the respondent No.2 in both the applications, being the Police Sub Inspector, Mahidharpura Police Station, inter alia alleges that the incident in question had happened near the Delhigate Cross Road, opposite to Amisha Hotel, Lucky Tower, on Una Pani Road, in the jurisdiction of the Police Station concerned with regard to a construction of a flyover on the said road. It is alleged that on 26.02.2013 at 19:15 Hours, when the construction of RCC work a structure of iron cage was being made along with work of tying of vertical iron rods of 25 m.m. in thickness and 18 meters in length and whereas it is alleged that the accused who had taken contract of building the flyover, caused the work be done in an irresponsible manner and whereas an accident had happened when the vertical iron rods had fallen on the iron cage structure, inside which, the workers were working, resulting in death of three workers and injuries sustained by three other workers.
5. The applicants of Criminal Misc. Application No. 5325 of 2013 are the Directors of one M/s Rajkamal Builders Infrastructure Pvt. Ltd., who had entered into a contract for building of the flyover with the Surat Municipal Corporation and the applicants of Criminal Misc. Application No. Page 2 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 25358 of 2017 are the engineers working for M/s S.N. Bhobe Associates Pvt. Ltd., who had entered into a project management contract with the Surat Municipal Corporation.
6. Learned Senior Advocate Mr. J.M. Panchal for the applicants would submit that the applicants of Criminal Misc. Application No. 5325 of 2013, are Directors of the company named hereinabove, and the said company is well known private company established in the year 1979 and whereas it is holding 'AA' Category licence since the year 1999. Learned Senior Advocate Mr. Panchal would submit that the said company has constructed approximately 50 to 60 bridges and flyovers in the State of Gujarat. It is further submitted by the learned Senior Advocate that the company has constructed various flyovers in Ahmedabad also, prominent among them being the flyovers at Shivranjini Cross Road, Helmet Cross Road, AEC Cross Road, and whereas the company has also constructed over bridges in Ahmedabad, prominent among them being the Sabarmati-AEC over bridge and the railway over bridge at Sola, etc.. It is further submitted by the learned Senior Advocate that the work of the over bridge in question was started in the year 2009 and whereas the work order had been revised in the year 2011. Learned Senior Advocate Mr. Panchal would submit that while the work of construction was being carried out, as per supervision of engineers of the M/s S.N. Bhobe Associates Pvt. Ltd. who were engaged as Project Management Consultant. According to the learned Senior Advocate, the incident in question was an accident and whereas the applicants as Directors of the company could not be held vicariously liable for the alleged negligence with regard to incident in question, more particularly the applicants as Directors were neither present at the site nor had they done any act leading to the accident. Learned Senior Advocate would further submit that while there is no provision in the Indian Penal Code, which envisages criminal liability vicariously, even otherwise according to the Page 3 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 learned Senior Advocate, there was no negligence, at the site, on the part of the applicants, on account of which the accident had happened.
6.1 Learned Senior Advocate Mr. Panchal would submit that insofar as Section 304 (Part-II) is concerned, the essential ingredient that the act was caused with the knowledge that it is likely to cause death but without the intention to cause death is not found in the present incident, more particularly the applicants not having done any act. Furthermore, insofar as offences punishable under Sections 337 and 338 is concerned, there is a clear absence of the reckless and negligence being gross and therefore also the said offences could not be alleged. Thus, submitting learned Senior Advocate would submit that this Court may quash the impugned FIR.
6.2 In support of his submissions, learned Senior Advocate Mr. J.M. Panchal has relied upon the decisions of the Hon'ble Apex Court in case of Shamsher Khan Vs. State (NCT of Delhi), reported in (2000) 8 SCC 568, in case of Keshub Mahindra Vs. State of M.P., reported in (1996) 6 SCC 129, and in case of M/S Thermax Ltd. and others Vs. K.M.Johny and others , reported in (2011) 13 SCC 412.
7. Submissions of learned Senior Advocate Mr. J.M. Panchal have been relied upon by learned Advocate Mr. K.P. Raval appearing for the applicants of Criminal Misc. Application No. 25358 of 2017. Additionally, learned Advocate Mr. Raval would submit that the applicants of the said application were working as engineers with one M/s S.N. Bhobe Associates Pvt. Ltd. and whereas the said company had entered into a contract as Project Management Consultant with the Surat Municipal Corporation for construction of flyover bridge at the Delhi Gate Junction, Ring Road, Surat. Learned Advocate Mr. Raval would submit that as per the said agreement, the applicants were the engineers in charge at the site in question and Page 4 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 whereas according to learned Advocate Mr. Raval, the engineers in charge were more or less required to supervise anything with regard to any financial liability being incurred by the Corporation. Learned Advocate would further submit that the applicants were having general supervision of the project, and reading of the FIR as also the charge-sheet filed therein, would not reveal any act done by the applicants which had led to the incident in question. As such, it is submitted that the applicants were neither present at the site nor the incident had happened under the direct supervision or control of the applicants. Most importantly, learned Advocate would rely upon the two reports being (i) report by the Superintending Engineer Designs (R & B) Circle, Gandhinagar, at the instance of the Surat Municipal Corporation, which would show that the incident in question was a construction accident and (ii) report by the Sardar Vallabhbhai National Institute of Technology, Surat, which has also been requested by the Surat Municipal Corporation to give its technical opinion as regards the cause of the accident and according to the said report, submitted by Sardar Vallabhbhai National Institute of Technology, the incident was a construction accident and not on account of any human negligence. Learned Advocate would submit that since there was no reason coming forth, as to why the accident had happened, therefore the reports were called for from the technical experts and whereas the technical experts had visited the site and had submitted the reports mentioned hereinabove, wherein it is clearly opined that the incident was a construction accident. Learned Advocate relying upon the said reports would submit that while the FIR inter alleges commission of offence punishable under Sections 304(Part-II), 337 and 338 read with Section 114 of the Indian Penal Code, and whereas, there is no everment in the FIR which would show culpability or negligence on the part of the applicants. In any case, learned Advocate would submit that since the technical experts had opined that the incident was a construction accident, Page 5 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 and not on account of any human negligence, therefore, the impugned FIR may be interfered with by this Court.
8. Both the learned Advocates appearing for the applicants in both the matters would emphasize of the fact that for offence punishable under Section 304(Part-II) or even Sections 337 and 338 of the IPC, essential ingredient would be the intent of the accused i.e. the requirement of mens rea and whereas in the instant case there was no mens rea, insofar as the applicants are concerned which had led to the incident in question.
9. These petitions are strongly opposed by learned APP Ms. M.D. Mehta for the respondent-State, who would submit that the applicants, due to lack of supervision at the site of the project, had caused the accident in question which had resulted in the death of three persons and serious injuries being caused to other three persons. Learned APP would submit that whether the applicants were involved or not, whether they were responsible for supervising the project or not, whether they had any mens rea or not, are all the issues which could be agitated by the applicants at the stage of trial and whereas according to learned APP, this Court at this stage may not interfere with the FIR.
10 Heard learned Advocates for the parties who have not submitted anything else.
11. At the outset it is required to be noted that while the FIR inter alia alleges commission as well as omission on the part of the applicants, which according to the FIR, had led to the death of three labourers, whereas, two reports by technically competent bodies i.e. one by the Road and Building Department of the State Government and the second by the Sardar Vallabhbhai National Institute of Technology, are produced on record. The report by the Superintending Engineer Designs (R& B) Circle, Gandhinagar, Page 6 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 referred to hereinabove, after observation of the site visit and information gathered from the Surat Municipal Corporations' officials etc. inter alia has observed in conclusion at Para 7(f) as under :
"7 (f) the design details and construction methodology followed during construction of RCC retaining wall especially during placing & fixing of reinforcement of retaining wall, provisions of tender specifications and Standard Engineering Practice have been followed. In spite of all, the tragic incident took place, which is accidental. This incident is "a construction accident."
12. Likewise the Sardar Vallabhbhai National Institute of Technology, Surat, as referred to hereinabove, has also submitted a report at the request of the Surat Municipal Corporation. The Sardar Vallabhbhai National Institute of Technology, in its report at Para 3.0 under the heading of Inference has observed as under :
"3.0 INFERENCE :
From above it can be inferred that the work of preparing reinforcement for retaining wall footing was completed up to STEP NO.8 mentioned above and incident took place while preparing for tying horizontal reinforcement for supporting vertical reinforcement at this stage due to unknown and unforeseen reasons the vertical bar of 25mm lost it's vertically (also due to heavy self weight) and started titling and collided with nearby vertical reinforcement bar and due to this all nearby vertical bars due to later impact of falling bars fell down on footing cage, due to the weight and impact of these heavy bars the footing cage got compressed and deformed, leading to injuries to labours working in the cage.
Based on our experience, perception and judgment, we can "strongly" say that, this "incidence" is clearly "construction accident" and not any "Human Negligence"."
13. Thus, it appears that the technical experts had clearly opined that the Page 7 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 incident was a construction accident and not on account of any human negligence. Keeping in view these opinions of the experts, the submissions of the part of the applicants would require examination.
14. It is contended by the applicants that for alleging an offence under Section 304(Part-II) of the IPC, there should be some material to prima facie indicate that the act which had caused death was done by the accused with at least such a knowledge that they were by such an act likely to cause death. As far as the Directors of the company i.e. applicants of Criminal Misc. Application No. 5325 of 2013 are concerned, it is submitted that the said applicants being Directors of the company, were not even present at the site when the incident in question had happened, nor were the Directors in any way either by the act of commission or omission responsible for the act, more particularly the act having not been done by the applicants. In this regard, this Court seeks to rely upon the decision of the Hon'ble Apex Court in case of Shamsher Khan (supra), where the Hon'ble Apex Court was dealing with an aspect inter alia with regard to Section 304 of the IPC. Paragraphs No. 10, 11, 12 and 13 of the said decision being the relevant, the same are reproduced hereinbelow for benefit.
"10. The appellant was convicted under Sec. 304 and 308 of the IPC. Both the offences relate to commission and attempt to commit culpable homicide respectively. So culpable homicide is the common factor in both courts. Section 299 of the Indian Penal Code defines culpable homicide, which has three alternative requirements. They are :-
1. doing an act with the intention of causing death of a person, or
2. doing an act with the intention of causing such bodily injury as is likely to cause such death, or
3. doing an act with the knowledge that he is likely by such act to cause death of another person.Page 8 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022
R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022
11. Learned counsel for the respondent State made an endeavour to bring the case within the ambit of the third alternative, as the case cannot possibly be brought under any of the other two. The act proved to have been committed by the appellant alongwith Babu Khan in this case is manufacture of explosive substances like bombs. Hence what is to be established is, the above act must have been done with the knowledge that such act by itself was likely to cause death. If some other act had intervened which the offender did not do consciously which triggered the explosions that could not be counted as the act for that offender. No evidence had been let in by the prosecution to show that mere manufacture of such bombs is likely to cause death of any person, nor any evidence for showing that appellant had the knowledge that by manufacturing bombs death would possibly be caused to any human being without any other act being done.
12. We may also point out that prosecution has not brought out any circumstance by which the Court could remotely attribute knowledge to the appellant that by manufacturing and possessing bombs death of any person was a likely consequence. By manufacturing a bomb, alone no one can normally think that it would explode without anything more done. Here something more would have happened which caused the explosion, what was that additional act is unknown to us. At any rate there is no material to show that the appellant had done that additional act.
13. In view of the aforesaid legal position, we find no scope to bring the proved facts within the ambit of Sec. 299 of the IPC. If so, the question of culpable homicide would stand at bay. We, therefore, find it legally difficult to confirm the conviction either for the offences under Sec. 304 or for Sec. 308 of the IPC. As a corollary we set aside the conviction and sentence passed on the appellant in regard to those two counts."
According to the Hon'ble Apex Court, insofar as the culpable homicide which is an essential requirement of an offence under Section 304 inter alia requires that the act in question must have been done with the knowledge that such act by itself was likely to cause death and if some other Page 9 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 act had intervened which the offender did not do consciously then that could not be counted as the act for that offender. It would be pertinent to mention that the Hon'ble Apex Court was examining a conviction of a person who had manufactured bombs inside a residence and whereas the bombs had exploded which led to death and injury and whereas it was under
such circumstances, on the legal aspect as observed hereinabove that the Hon'ble Apex Court had set aside the conviction and sentence for offence punishable under Sections 304 and 308 of the IPC.
15. This Court also seeks to rely upon the observations of the Hon'ble Apex Court in case of Keshub Mahindra (supra). It would be pertinent to mention here that the Hon'ble Apex Court in the said decision was considering an aspect with regard to framing of charge against accused of the Bhopal Gas Tragedy, whereas the applicants before the Hon'ble Apex Court were chairman and other officials of the company in question. Paragraph No. 20 of the said decision being relevant for the present purpose, is quoted hereinbelow for benefit.
"20. It, therefore, become necessary for us now to address ourselves on this moot question. As noted earlier the main charge framed against all these accused is under Section 304 Part II, IPC. So far as accused No's. 2, 3, 4 and 12 are concerned they are also charged with offences under Sections 326,324, IPC and 429 IPC read with Section 35 IPC while accused 5 to 9 are. charged substantially with these offences also. We shall first deal with the charges framed against the concerned accused under the main provisions of Section 304 Part II, IPC. A look at Section 304 Part II shows that the concerned accused can be charged under that provision for offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act to the concerned accused is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death the charge offences would fall under Section 304 Part II. However before any charge under Section 304 Part II can be framed, the material on record must at least prima facie show that the Page 10 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide. However, if the material relied upon for framing such a charge against the concerned accused falls short of even prima facie indicating that the accused appeared to be guilty of an offence of culpable homicide Section 304 Part I or Part II would get put of the picture. In this connection we have to keep in view Section 299 of the Indian Penal Code which defines culpable homicide. It lays down that:
"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
Consequently the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. The entire material which the prosecution relied upon before the Trial Court for framing the charge and to which we have made a detailed reference earlier, in our view, cannot support such a charge unless it indicates prim a facie that on that fateful night when the plant was run at Bhopal it was run by the concerned accused with the knowledge that such running of the plant was likely to cause deaths of human beings. It cannot be disputed that mere act of running a plant as per the permission granted by the authorities would not be a criminal act. Even assuming that it was a defective plant and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused in tank Mo: 610 could not even prima facie suggest that the concerned accused thereby had knowledge that they were likely to cause death of human beings. In fairness to prosecution it was not suggested and could not be suggested that the accused had an intention to kill any human being while operating the plant. Similarly on the aforesaid material placed on record it could not be even prima facie suggested by the prosecution that any of the accused had a knowledge that by operating the plant on that fateful night whereat such dangerous and highly volatile substance like MIC was stored they had the knowledge that by this very act itself they were likely to cause death of any human being. Consequently in our view taking the entire material as aforesaid on its face value and assuming it to represent correct factual position in Page 11 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 connection with the operation of the plant at Bhopal on that fateful night it could not be said that the said material even prima facie called for framing of a charge against the concerned accused under Section 304 Part II, IPC on the spacious plea the said act of the accused amounted to culpable homicide only because the operation of the plant on that night ultimately resulted in deaths of number of human beings and cattle. It is also pertinent to note that when the complaint was originally filed suo motu by the police authorities at Bhopal and the criminal case was registered at the police station Hanumanganj, Bhopal as case No, 1104/84 it was registered under Section 304-A of the IPC. We will come to that provision a little later. Suffice it to say at this stage that on the entire material produced by the prosecution in support of the charge it could not be said even prima facie that it made the accused liable to face the charge under Section 304 Part II. In this connection we may refer to a decision of the Calcutta High Court to which our attention was drawn by learned senior counsel Shri Rajendra Singh for the appellants; In the case of Adam Ali Taluqdar and Ors. v. King-Emperor, AIR (1927) Calcutta 324 a Division Bench of the Calcutta High Court made the following pertinent observa-tions while interpreting Section 304 Part II-read with Section 34 IPC :
"Although to constitute an offence under S. 304, Part 2, there must be no intention of causing death or such injury as the offender knew was likely to cause death, there must still be a common intention to do an act with the knowledge that it is likely to cause death though without the intention of causing death. Each of the assailants may know that the act, they are jointly doing, is one that is likely to cause death but have no intention of causing death, yet they may certainly have the common intention to do that act and therefore S. 34 can apply to a case Under S. 304, Part 2;"
Once we reach the conclusion that the material produced by the prosecution before the Trial Court at the stage of framing of charges did not even prima fade connect the accused with any act done with the knowledge that by that act itself deaths of human beings would be caused the accused could not be even charged for culpable homicide and consequently there would be no question of attracting Section 304 Part II against the concerned Page 12 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 accused on such material. When on the material produced by the prosecution no charge could be framed against any of the accused under Section 304 Part II there would remain no occasion to press in service the applicability of Section 35, (PC in support of such a charge for those accused who were not actually concerned with the running of the plant at Bhopal, namely, accused Nos, 2,3, 4 and 12."
The Hon'ble Apex Court in addition to holding in the above paragraph that for alleging an offence under Section 304(II) of the IPC, there should be at least some material relied upon by the prosecution, which would prima facie indicate that the accused had done an act which had caused death with at least knowledge that such act was likely to cause death. The Hon'ble Apex Court had further drawn a distinction with regard to accused who were not concerned with running plant, more particularly observing that "...The entire material which the prosecution relied upon before the Trial Court for framing the charge and to which we have made a detailed reference earlier, in our view, cannot support such a charge unless it indicates prima facie that on that fateful night when the plant was run at Bhopal it was run by the concerned accused with the knowledge that such running of the plant was likely to cause deaths of human beings...".
Thus, in the considered opinion of this Court, having regard to the law laid down by the Hon'ble Apex Court interpreting the essential ingredients for an offence under Section 304(II) being that there must be some an act being done by the accused and whereas such act must have been done with the knowledge that such act by itself was likely to cause death.
16. As far as the facts of the present case are concerned, it appears that the FIR as well as the charge-sheet papers do not indicate any overt act by Page 13 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 commission or even an act of omission on the part of any of the accused before this Court i.e. either the accused being the Directors of the company or the accused being the engineers in charge with regard to overall supervision, being directly responsible for the death and injury in question and whereas since there is no material to show any act done by the present applicants, there would not be any question of such act being done by the present applicants with the knowledge that the act would cause death. These observations without precluding the original submissions, based upon the reports that the incident in question was a construction incident which did not occur on account of human negligence.
17. Insofar as the offence punishable under Sections 337 and 338 of the IPC are concerned, this Court seeks to rely upon the observations of the Hon'ble Apex Court in case of Jacob Mathew Vs. State of Punjab and another, reported in (2005) 6 SCC 1.
18. In case of Jacob Mathew (supra) the Hon'ble Apex Court had after elaborately discussing various aspects of the term negligence had inter alia concluded as regards the ordinary meaning of the term negligence at paragraph no. 48(1) which is reproduced hereinbelow for benefit:
"48. (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'."
18.1 Furthermore at paragraph no. 48(5) the Hon'ble Apex Court has Page 14 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 explained the difference between negligence in civil law and negligence in criminal law. The said paragraph is quoted hereinbelow for benefit:
"48. (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."
19. Having regard to the observations of the Hon'ble Apex Court as quoted hereinabove, it could be stated that insofar as the ordinary meaning of the term negligence, the same would amount to an act of a breach of duty caused by omission to do something or commission of doing some act which should not have been done more particularly in context of a reasonable man guided by considerations which regulate the normal conduct of human affairs. In other words wherever the term negligence is used in its normal sense, the same would require doing something which should not be done or not doing something which should be done more so the acts of doing and not doing being in the context of how a reasonable person would or would not act in the given circumstances. Furthermore, for negligence to become actionable there has to be an injury resulting from the negligence in doing something or in not doing something. According to the Hon'ble Apex Court there are three essential components of negligence i.e. (a) duty, (b) breach and (c) resulting damage.
19.1 Insofar as the difference between negligence in civil and criminal law, the Hon'ble Apex Court has inter alia observed and clarified that a negligence in civil law may not be necessarily a negligence in criminal law. According to the Hon'ble Apex Court for negligence to amount to an Page 15 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 offence the element of mens rea i.e culpable state of mind should be shown to exist. Furthermore according to the Hon'ble Apex Court for negligence to be termed as criminal negligence, the degree of negligence should be of a much higher level i.e. gross negligence of a very higher degree. Furthermore the Hon'ble Apex Court has also clarified that negligence which is neither gross nor of a higher degree cannot be basis for prosecuting a person and there may be a remedy in the civil law with regard to the same.
20. A plain reading of the scheme of Sections 337 and 338 would reveal that the act which is sought to be punished is the act which is done rashly or negligently resulting in either endangering of human life or personal safety. Under Section 337 of the Indian Penal Code an injury of hurt or simple hurt is envisaged and under Section 338 injury in the nature of grievous hurt is being envisaged more particularly on account of an act done so rashly or negligently.
21. The primary ingredient of offence punishable under Sections 337 and 338 and offence punishable under Section 304A is that the act concerned should be done rashly or negligently. Though the consequence of the rash and negligent act and the resultant punishment are varying as per the gravity of the consequence but at the same time the underlying factor to impose criminal liability in all the above sections being that the act should be done rashly or negligently. While the Hon'ble Apex Court in case of Jacob Mathew (supra) has inter alia held that the term rash and negligent to be read as qualified by the word 'gross' whereas insofar as Sections 337 and 338, the statute itself has qualified the expression rashly or negligently with the term 'so'. Furthermore in case of Jacob Mathew (supra) the Hon'ble Apex Court has also held that for negligence to amount to criminal negligence, the degree of negligence should be very high, i.e gross. It could thus be held that for an act to amount to criminal negligence as per Sections Page 16 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 337 and 338, the negligence should be of a higher degree. For an act to be categorized as a rash and negligent act under Sections 337 and 338, it is required to be shown that the recklessness or negligence was of a very high degree.
22. Having regard to the legal position emerging from the decision of the Hon'ble Apex Court in case of Jacob Mathew (supra), it appears to this Court, that while the act in question, more particularly for alleging offence under Sections 337 and 338 of the IPC, should be done so recklessly and negligently i.e. the act should be extremely grossed. In the instant case, neither the FIR nor the charge-sheet papers reveal any act of commission or omission by the applicants herein which could be so gross so as to bring the said act under the ambit of Sections 337 and 338 of the IPC.
23. Having regard to the overall discussion, observations and conclusion, in the considered opinion of this Court, more particularly relying upon the reports i.e. the report of the Superintending Engineer Designs (R & B) Circle, Gandhinagar, State Government, as well as the report of the Sardar Vallabhbhai National Institute of Technology, Surat, while it clearly appears that the incident in question was a construction accident, as far as the applicants in the both applications i.e. the applicants of Criminal Misc. Application No. 5325 of 2013 being the Directors and the applicants of Criminal Misc. Application No. 25358 of 2017 being the engineers in charge, could not be stated to have committed any act, either with the knowledge, that such act would cause death, though without intention, so as to attract the offence punishable under Section 304(Part-II) of the IPC, nor is there any prima facie material to show that the applicants had done any act which was grossly negligent and reckless, for invoking offence punishable under Sections 337 and 338 of the IPC.
Page 17 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022
24. Furthermore, in the considered opinion of this Court, neither the FIR nor the charge-sheet papers even prima facie point out to any 'mens rea' - culpable intent of the applicants which is essential for a negligent act to be brought in the ambit of criminal liability as held by the Hon'ble Apex Court in the case of Jacob Mathew (supra).
25. This Court, at this stage, seeks to rely upon the decision of the Hon'ble Apex Court in case of State of Haryana and others Vs. Bhajan Lal and others, reported in 1992 Supp. (1) SCC 335, where the Hon'ble Apex Court has laid down certain categories of cases by way of illustrations, wherein extraordinary power under Article 226 of the Constitution of India or inherent powers under Section 482 of the Code of Criminal Procedure could be exercised by this Court for quashing of an FIR, either to prevent abuse of the process of any Court or otherwise to secure ends of justice. Para No.102 of the said decision being relevant for the present purpose, the same is reproduced hereinbelow for benefit.
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law 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.Page 18 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022
R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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 uncontroverted 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 non-cognizable 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 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 mala fide 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."
The instant case, in the considered opinion of this Court, would be covered by Instance No.1 of the said decision of the Hon'ble Apex Court, more particularly in the considered opinion of this Court, even if the allegations made in the FIR had taken at their face value and accepted in Page 19 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 their entirety do not prima facie constitute any offence or make out a case against the accused. Furthermore, it also appears that the present case would also covered by Instance No.3 of the said decision inasmuch as, uncontroverted allegations made in the FIR and the evidence collected in support thereof, not disclosing commission of any offence and make out a case against the accused.
26. As observed hereinabove, it clearly appears that neither the allegations in the FIR taken it at face value nor the material collected during the investigation reveal commission of any offence by the present applicants. Thus, the impugned FIR, in the considered opinion of this Court, deserves to be quashed, as to ensure that the ends of justice are secured.
27. From the charge-sheet papers, it does not appear that the applicants by their any act of commission or omission, more particularly from the perspective of a reasonable man as to what such a person would do or would not do in the given circumstance, do not appear to have committed any reckless or negligent act to which either endanger human life and cause hurt or endanger human life or personal safety of others and cause grievous hurt. In the considered opinion of this Court, more particularly relying upon the observations of the technical experts who were otherwise neither connected with the incident nor had any kind of interest in the incident in question, had opined that the incident was an accident and whereas the experts had also, more particularly the report of the the Sardar Vallabhbhai National Institute of Technology, had also excluded the factor of human negligence from the accident. Under such circumstances, having regard to the discussion on the law laid down by the Hon'ble Apex Court in this regard, in the considered opinion of this Court, there was no material in the charge-sheet which would even prima facie show that the present applicants Page 20 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022 R/CR.MA/5325/2013 JUDGMENT DATED: 06/05/2022 had committed a reckless and negligent act which had led to the accident in question.
28. Having regard to the above discussion, observations and finding, these applications deserve to be allowed. Hence, the impugned FIR being C.R. No.I- 29 of 2013 registered with Mahidharpura Police Station, Surat, for the offences punishable under Section 304(Part-II), 337, 338 and 114 of the Indian Penal Code, as well as all other consequential proceedings arising therefrom, are hereby quashed and set aside qua the applicants herein. Rule is made absolute to the aforesaid extent.
(NIKHIL S. KARIEL,J) BDSONGARA Page 21 of 21 Downloaded on : Fri May 06 21:27:03 IST 2022