Delhi District Court
Anil Kumar Manchanda vs The State on 20 February, 2018
IN THE COURT OF SH. SANJEEV KUMAR,
ADDITIONAL SESSIONS JUDGE-5, SOUTH-EAST DISTRICT,
SAKET COURTS, NEW DELHI
CRIMINAL REVISION NO.221/2017
In the matter of:
Anil Kumar Manchanda
S/o Sh. O.P. Manchanda
R/o II-K 82B, Lajpat Nagar, New Delhi. ........Revisionist
Versus
1. The State
2. Mohd. Qasim
S/o Sh. Mohd. Ibrahim
R/o R-239, First Floor, Back Gali No. 5,
Jogabai Extension, Jamia Nagar,
Okhla, New Delhi-110065. ........Respondents
Instituted on : 03.05.2017
Reserved on : 24.11.2017
Pronounced on : 20.02.2018
JUDGMENT
This revision petition has been filed by the revisionist-accused under Section 397 read with Section 399 of the Code of Criminal Procedure, 1973 (in short "Code") against the order dated 21.03.2017 passed by the learned Additional Chief Metropolitan Magistrate, South-East District, Saket Courts, New Delhi in First Information Report (FIR) No. 221/2015, Police Station New Friends Colony, case CR No.221/2017 Anil Kumar Manchanda Vs. The State & Anr. Page No.1 of 10 titled as "State v. Anil Kumar Manchanda", whereby cognizance against the revisionist -accused under section 336 and 304-A of the Indian Penal Code, 1960 (in short "IPC") was taken and he was summoned.
2. Learned counsel appearing for the revisionist has submitted that cancellation report was filed by the investigating agency before the learned Additional Chief Metropolitan Magistrate. Vide order dated 26.12.2016, investigating officer was directed to further investigate the case in respect of ownership and possession of the property in question. After further investigation, police report was filed in respect of said ownership and possession. As per the allegations, a Chajja was fallen down of the shop no. 67, CC Market after two monkeys jumped on it by which deceased Jamshed had received injuries and later resulted into death. There are no evidence to show that Chajja was under dilapidated condition or in poor condition. The revisionist is the owner of the shop in question. The tenant of the said shop and other public witnesses have stated in their respective statement under section 161 of the Code. The shop was allotted by the DDA and same was rented out one year earlier prior to the incident. There is no witness who stated that Chajja was in poor condition and therefore learned Additional Chief Metropolitan Magistrate has committed error in taking cognizance of the offences under section 336 and 304-A IPC and in issuing the summon against the revisionist - accused.
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3. On the other hand, learned Additional Public Prosecutor for the State / respondent has opposed the revision petition stating that shop was given to the revisionist on lease and the revisionist was responsible for the maintenance / repair of the said shop. The Chajja was in dilapidated condition because same was fallen down due to jumping the monkeys.
4. The case of the prosecution-respondent no. 1 is that on receiving DD No. 38-A on 25.05.2015, Sub Inspector Darpan Singh alongwith Constable Joginder Singh reached at shop no. 67, CC market where Chajja of the said shop was found to be fallen down. On inquiry, police came to know that one person namely Jamshed became injured due to said Chajja fallen upon him. Said injured was taken to the Hospital by some persons and thereafter he died in the Hospital. The Chajja of the said shop was very old and its width was about 5 feets. On these facts and circumstances, said Sub Inspector Darpan Singh had lodged the FIR under section 336/304-A IPC. After investigation, cancellation report was filed before the learned Additional Chief Metropolitan Magistrate concluding that two big size monkeys were quarreling and they jumped upon the Chajja due to which said Chajja fallen down and the deceased Jamshed was died due to the injury received due to fallen Chajja. It was also concluded by the police in said report that no person is liable for that incident and there is no negligence or fault of the any person. On 26.12.2012, learned Additional Chief Metropolitan Magistrate had directed for CR No.221/2017 Anil Kumar Manchanda Vs. The State & Anr. Page No.3 of 10 further investigation on the point of ownership and possession of the said shop. After further investigation, police filed report regarding ownership and possession of the said shop.
5. The principle question for decision is whether there are prima facie case against the revisionist-accused for the offence punishable under section 336 and 304-A IPC for rejecting the cancellation report and taking cognizance of the said offences and issuing summon.
6. During investigation, police had recorded statement of Vipul Nair (tenant of the said shop), Surender Kumar Madan (neighbourer of the said shop), Mohd. Kasim (father of the deceased Jamshed), Kishan Ashnani (neighbourer of the said shop), Sanjay Singh (neighbourer of the said shop), Anil Kumar Jain (Assistant Engineer) under section 161 of the Code. Said Vipul Nair, Surender Kumar Madan, Mohd. Kasim, Kishan Ashnani and Sanjay Singh have stated that no person was responsible for the falling of the said Chajja and falling Chajja is mere an accident as the big size monkeys jumped upon the Chajja. None of these witnesses had stated that the Chajja was in dilapidated and poor condition. Mohd. Kasim is the father of the deceased Jamshed who is also one of the said witnesses who had stated that said incident was a mere an accident and no one is responsible for that incident. No complaint was filed by the father of the deceased Jamshed in police station. Police had lodged FIR on his own. The Anil Kumar Jain is the Assistant Engineer in the office of DDA Sarita CR No.221/2017 Anil Kumar Manchanda Vs. The State & Anr. Page No.4 of 10 Vihar who had stated in his statement under section 161 of the Code that the said shop no. 67, CC Market is on lease hold and responsibility of the repairing of the said shop is upon the lease holder.
7. In Suleman Rehiman Mulani & Anr. Vs. State Of Maharashtra, (1968) 2 SCR 515, Hon'ble Supreme Court has observed/held in para Nos.13 and 14:
"13. Now let us turn to the decided cases. Dealing with the scope of Section 304-A IPC, Sir Lawrence Jenkins observed in Emperor Vs. Omkar Rampratap :
"To impose criminal liability under Section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and 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 cause causans; it is not enough that it may have been the cause sine qua non."
That, in our opinion is the true legal position.
14. The scope of Section 304A IPC came to be considered by this Court in Kurban Hussein Mohammedali Rangwalla Vs. State of Maharashtra. In our opinion, the ratio of that decision governs the facts of the present case. The CR No.221/2017 Anil Kumar Manchanda Vs. The State & Anr. Page No.5 of 10 facts of that case were : The appellant was the manager and working partner of a firm which manufactured paints and varnish. The factory was licensed by the Bombay Municipality on certain conditions to manufacture paints involving a cold process and to store certain specified quantities of turpentine, varnish and paint. The factory did not have a licence for manufacturing wet paints but nevertheless manufactured them. Four burners were used in the factory for the purpose of melting rosin or bitumen by heating them in barrels and adding turpentine thereto after the temperature cooled down to a certain degree.
While this unlicensed process was going on froth overflowed out of the barrel and because of heat varnish and turpentine, which were stored at a short distance caught fire, as a result of which seven workmen died. The appellant was prosecuted and convicted under Section 304A and Section 285, IPC. His appeal was summarily dismissed by the Bombay High Court. This Court set aside the conviction under Section 304A IPC, holding that the mere fact that the appellant allowed the burners to be used in the same room in which varnish and turpentine were stored, even CR No.221/2017 Anil Kumar Manchanda Vs. The State & Anr. Page No.6 of 10 though it would be a negligent act, would not be enough to make the appellant responsible for the fire which broke out. In the course of the judgment this Court observed that the cause of the fire was not merely the presence of the burners within the room in which varnish and turpentine were stored, though that circumstance was indirectly responsible for the fire which broke out; what Section 304A 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. On the basis of the facts of that case, this Court held that the direct and proximate cause of the fire which resulted in seven deaths was the act of one of the workmen in pouring the turpentine too early and not the appellant's act in allowing the burners to burn in the particular room. In the present case, we do not know what was the proximate cause of the accident. We cannot rule out the possibility of the accident having been caused due to the fault of the deceased. The question whether appellant No. 1 was proficient in driving a jeep or not does not conclude the issue. His proficiency in driving might furnish a defence, which a learner could CR No.221/2017 Anil Kumar Manchanda Vs. The State & Anr. Page No.7 of 10 not have, but the absence of proficiency did not make him guilty. The only question was whether, in point of fact he was not competent to drive and his incompetence was the cause of death of the person concerned."
8. In Kurban Hussein Mohammedali Rangwalla Vs. State of Maharashtra, 1965 2 SCR 622, Hon'ble Supreme Court has observed/ held that the allegations were that the appellant allowed the burners to be used in the same room in which varnish and turpentine were stored. It was held that even though it might be a negligent act, would not be enough to make the appellant responsible for the fire which broke out.
9. In Amba Lal D. Bhatt Vs. State of Gurarat, (1972) 3 SCC 525, Hon'ble Supreme Court has observed/ held that the accused was charged for rashly and negligently manufacturing a solution of glucose in normal saline containing more than permitted quantity of lead nitrate as a result of which thirteen persons, to whom, it was administered, died. The appellant was acquitted and it was held:
"It appears to us that in a prosecution for an offence under Section 304A the more fact that an accused contravenes certain rules or regulations in doing of an act which causes death of another, it is not established that the death was the result of a rash or negligent act or that any such act was CR No.221/2017 Anil Kumar Manchanda Vs. The State & Anr. Page No.8 of 10 the proximate and efficient cause of death."
10. In Gulijeet Singh Kochar and Anr. V. State, 121 (2005) DLT 516, Hon'ble Delhi High Court has also observed that for the offence under section 304-A IPC, that there must be proof that the rash or negligent act of the accused was the proximate cause of the death.
11. Hence, from the above mentioned judgments, it is clear that the requirements of section 304-A IPC are that the death of any person must have been caused by the accused by doing any rash or negligent act. There must be proof that rash or negligent act of the accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash or negligent act of the accused. In the present case, the shop in question was on lease hold by the DDA and revisionist-accused is stated to be lease holder of the said shop. Vipul Nair is the tenant of the revisionist in the said shop. The deceased Jamshed was doing the work of helper in the said shop which was given to the Vipul Nair on rent. The two monkeys were quarreling and jumped upon the Chajja of the said shop, due to which said Chajja fallen down causing death of the deceased Jamshed. There is no evidence on record to show that the said Chajja / shop was in dilapidated / poor condition. There is no evidence to show that the revisionist was asked by any person earlier to the incident to make repair in the said shop as said shop in dilapidated / poor condition. There is also no evidence to show that said two monkeys pertains to CR No.221/2017 Anil Kumar Manchanda Vs. The State & Anr. Page No.9 of 10 the accused. Family member of the deceased or any other public person had not lodged the complaint / FIR against the accused for the said incident. The police had registered the FIR on its own. After investigation, police has filed cancellation report concluding that no one is responsible for the said incident and said incident was a mere accident. Hence, there are no evidence / statement that death had been caused by the accused by doing any rash or negligent act. In other words, there is no proof that the rash or negligent act of the accused was the proximate cause of the death of the deceased. There is no direct nexus between the death of the deceased and the rash or negligent act (if any) of the accused. There are no evidence / statement to show that the said Chajja of the said shop was dilapidated / poor condition. Neither father of the deceased Jamshed nor any other person had filed protest petition against the cancellation report which was filed by the police after conclusion of the investigation.
12. In view of above discussion, I am of the view that there are no prima facie case against the accused-revisionist for taking cognizance for the offence punishable under Sections 336 and 304-A IPC. Hence, impugned order of taking cognizance and issuing summon is set-aside and cancellation report is accepted. Revision is allowed.
Announced in the open court
on 20.02.2018 (SANJEEV KUMAR)
Additional Sessions Judge-05
South East District, Saket Courts, New Delhi
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