Madhya Pradesh High Court
Thomas Anam vs The State Of Madhya Pradesh on 6 July, 2023
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 6 th OF JULY, 2023
MISC. CRIMINAL CASE No. 20679 of 2021
BETWEEN:-
1. THOMAS ANAM S/O ANTIMETHEW, AGED ABOUT
38 YEARS, OCCUPATION: MANAGER (BHARAT
MATA SCHOOL) ISAGARH DISTT. ASHOKNAGAR
R/O VILLAGE UDAPPA METHEW KULAM IDKADA
DIST MALLAPURRAM (KERALA)
2. DEVASAHAYAM NAKKA S/O DANIYELU NAKKA,
AGED ABOUT 33 YEARS, OCCUPATION:
PRINCIPAL, BHARAT MATA SCHOOL ISSAGADH
ASHOKNAGAR R/O VILLAGE GUDIWADA PS
RAVIKUMUTAM DISTT. VISHAKHAPATNAM
(ANDHRA PRADESH)
3. SUWEG SINGH S/O HARNAM SINGH, AGED ABOUT
45 YEARS, OCCUPATION: P.T.I R/O VILLAGE
KHERONA CHAKK TEHSIL ISSAGARH DISTT.
ASHOKNAGAR (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI PRATIP VISORIYA- ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION ISSAGADH DISTT
ASHOKNAGAR (MADHYA PRADESH)
2. SANTOSH S/O SHRI BALKISHAN SEN, AGED
ABOUT 42 YEARS, R/O WARD NO.6 ISSAGARH,
DISTT. ASHOKNAGAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI V.P.S.TOMAR- PANEL LAWYER FOR RESPONDENT NO.1/STATE
BY SHRI ANIL KUMAR SHRIVASTAVA- ADVOCATE FOR RESPONDENT
Signature NotNO.2)
Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 06-07-2023
03:46:43 PM This application coming on for hearing this day, the court passed the
2
following:
ORDER
This petition has been filed by the petitioners under Section 482 of Cr.P.C. for quashing the FIR crime No.370/2020 registered at police Station Issagarh Distt. Ashoknagar for the offence punishable under Section 304-A of IPC and its subsequent criminal proceedings.
In brief facts of the case are that on 11.11.2017 at 11 am informant Santosh Sen, father of deceased Ashutosh, gave an information to Head Constable No.150 Khamal Singh at Supkhpur Hospital, Baheriya, Issagarh, that his son deceased Ashutosh was studying in 11th standard at Bharat Mata School. He participated in 200 meters race in the school. During race, all of a sudden he fell down and died. Thereafter he along with Tomesh and children of the school brought him to Sukhpur hospital. On his information, Merg No.0/2017 under Section 174 of Cr.P.C. was recorded. On the basis of Dehati Merg, Merg No.71/2017 was recorded. Merg was enquired. Enquiry report was submitted after about 2 years and 9 months, according to which, petitioners, who were in-charge of sports event, were negligent. They did not make arrangement for any medical team. Hence, offence under Section 304-A of IPC is made out. Afterwards, FIR bearing crime No.370/2020 was registered under Section 304-A of IPC.
Learned counsel for the petitioners submits that there is no rash & Signature Not Verified negligent act on the part of the petitioners. They were performing their Signed by: MADHU SOODAN PRASAD Signing time: 06-07-2023 03:46:43 PM duties in the school. Deceased voluntarily participated in 200 meters 3 race. All of a sudden, he fell down. As such, no case under Section 304- A of IPC is made out. In support of his submission, learned counsel for the petitioners placed reliance on the decision of the Apex Court in the case of Ambalal D. Bhatta v. The State of Gujarat, AIR 1972 SC 1150 wherein in para 8 Apex Court has observed as under :
"8. It appears to us that in a prosecution for an offence under Section 304A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the 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 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 Moham- medali Rangwala v. State of Maharashtra , the accused who had manufactured wet paints without a licence was acquitted of the 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 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 Signature Not Verified under Section 304A. It would be different if it can be established as in the Signed by: MADHU case of Bhalchandra v. State of Maharashtra that deaths and injuries Signing time: 06-07-2023 caused by the contravention of a prohibition in respect of the substances SOODAN PRASAD 03:46:43 PM which are highly dangerous as in the case of explosives in a cracker 4 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."
Learned counsel further placed reliance on Supreme Court decision in the case o f Kurban Hussein Mohamedalli vs. State of Maharastra, AIR 1965 SC 1616 in which in para 3 Supreme Court has observed as under :-
"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 paints in the same room where varnish and turpentine were stored and the fire resulted because of the proximity of the burners to the stored varnish and turpentine, he must be held responsible for the death of the seven workmen who were burnt in the fire. We are -
however of opinion that this view of the Magistrate is not correct. The mere fact that the appellant allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it might be a negligent act, would not be enough to make the appellant responsible for the fire which broke out. The cause of the fire was not merely the presence of burners in the room in which varnish and turpentine were stored, though this circumstance was Signature Not Verified indirectly responsible for the fire which broke out. But Signed by: MADHU SOODAN PRASAD what s. 304-A requires is causing of death by doing any rash Signing time: 06-07-2023 03:46:43 PM or negligent act, and this means that death must be the direct 5 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 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 degree F. Therefore the cooling must be brought down, according to the expert, to below 76 degree F to avoid fire. In any case even if that is not done, turpentine has to be added slowly so that there may not be too much frothing. Clearly therefore the fire broke out because bitumen or rosin was not allowed to cool down sufficiently and turpentine was added too quickly in view of the fact that the process was performed at closing time. It is clearly the negligence of Hatim which was the direct or proximate cause of the fire breaking out, though the fact that burners were kept in the same room in which turpentine, and 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 Signature Not VerifiedHatim's act which was the direct and proximate cause of the Signed by: MADHU SOODAN PRASAD fire breaking out with the consequence that seven persons Signing time: 06-07-2023 03:46:43 PM were burnt to death; the act of the appellant in allowing 6 turpentine and varnish being stored at a short distance was only an indirect factor in the breaking out of fire." Reliance has been further placed on the Apex Court decision in the case of Jacob Mathew v. State of Punjab & another, AIR 2005 SC 3180 in which in para 11 Apex Court has observed as under:
"11.The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P. Singh). It is stated (at p.441-442) ___ "Negligence is the breach of a duty caused by the 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. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. The definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort."
Learned counsel for the State admits that during enquiry and statements evidence regarding specific negligence or rash act has not come.
Learned counsel for respondent No.2/complainant by relying on the decision of Coordinate Bench of this Court in the case of Bundu Qureshi vs. State of M.P. & Anr. decided on 22.3.2021 in M.Cr.C.No.15658/2021 submits that FIR can only be quashed if the uncontroverted allegations made in the FIR, do not make out an offence.
Signature Not Verified Signed by: MADHUSOODAN PRASAD In reply, learned counsel for the petitioners placed reliance on the decision of the Signing time: 06-07-2023 03:46:43 PM Apex Court in the case of Manoj Mahavir Prasad Kahitan vs. Ram Gopal Poddar & 7 Anr. decided on 8.10.2010 in Criminal Appeal No.1973/2010 wherein the Apex Court has observed as under :
"We reiterate that when the criminal Court looks into the complaint, it has to do so with the open mind. True it is that that is not the stage for finding out the truth or otherwise in the allegations; but where the allegations themselves are so absurd that no reasonable man would accept the same, the High Court could not have thrown its arms in the air and expressed its inability to do anything in the matter. Section 482 Cr.P.C. is a guarantee against injustice. The High Court is invested with the tremendous powers thereunder to pass any order in the interest of justice. Therefore, this would have been a proper case for the High Court to look into the allegations with the openness and then to decide whether to pass any order in the interests of justice. In our opinion, this was a case where the High Court ought to have used its powers under Section 482 Cr.P.C."
Heard learned counsel for the parties and perused the case diary. In the present case, allegation against the petitioners is that that they did not make arrangement for medical team during sports event, and therefore, they are responsible for the death of deceased Ashutosh. As held by Apex Court in the aforesaid decisions, 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, though the petitioners were negligent in not making arrangement for medical team, but it was not the direct or proximate cause of death of deceased Ashutosh.
Thus, in the present case, on the basis of the allegations as contained in the FIR and statements of the witnesses, no case under Section 304-A of IPC is made out against the petitioners. Accordingly, this petition is allowed and FIR crime No.370/2020 registered at police Station Issagarh Distt. Ashoknagar for the offence punishable under Section 304-A of IPC and its subsequent criminal proceedings are quashed against the petitioners.
(DEEPAK KUMAR AGARWAL) JUDGE Signature Not Verified ms/-
Signed by: MADHU SOODAN PRASAD Signing time: 06-07-2023 03:46:43 PM