Madhya Pradesh High Court
Manish Rai vs The State Of Madhya Pradesh on 14 August, 2018
Cr.R.No.1787/2016
1
IN THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Revision No.1787/2016
1. Manish Rai S/o Suresh Rai
aged 40 years, R/o Sali Chowka,
Police Station Gadarwara,
District- Naringhpur.
2. Ashish Rai S/o Suresh Rai
aged 42 years, R/o Sali Chowka,
Police Station Gadarwara,
District- Naringhpur.
Petitioners
-Vs-
State of Madhya Pradesh, through
Police Station Gadarwara,
District Narsinghpur.
Respondents
..............................................................................................................
Present:- Hon'ble Shri Justice C.V. Sirpurkar
...............................................................................................................
Shri Manish Dutt Senior Advocate with Shri Yogesh
Soni, counsel for the petitioners.
Shri D. Mishra, Government Advocate for the
respondent/State.
...............................................................................................................
ORDER
(14-08-2018)
1. This criminal revision is directed against order dated 2.3.2016 passed by the Court of Special Judge, Scheduled Caste and Scheduled Tribe Prevention of (Atrocities) Act, Narsinghpur in S.T. No. 26/2016, whereby a charge under Section 304 and in the alternative Section 304 read with Section 34 of the I.P.C. (on 7 Cr.R.No.1787/2016 2 counts) and Section 3(2-v) (on 6 counts) was framed against petitioners/accused persons Manish Rai and Ashish Rai.
2. The facts giving rise to this criminal revision may be summarized as hereunder: On 29.9.2015, construction work was going on in the warehouse of petitioners Manish and Ashish. Labourers first informant Arvind, Meghraj, Mohan Lal, Punnu, Sukhram, Rajesh, Ramesh, Sonu @ Suresh, Rajkumar and Akhilesh had gone to work on the site. They were plastering the wall of the warehouse from outside. At the same time, co-accused Naresh was performing filling work inside the ware house with the help of a J.C.B. Machine, on the instructions of and under the supervision of the petitioners Manish and Ashish, who were present on the spot. First informant Arvind and other labourers expressed apprehension that use of J. C. B. Machine might cause the wall to collapse and the labourers might lose their lives. However, petitioners Ashish and Manish and co-accused Naresh did not pay any heed to them and Naresh, on the directions of Manish and Ashish, kept operating J.C.B. Machine. At around 1:00 p.m., J.C.B. Machine crashed into the wall on which aforesaid labourers were applying plaster. As a result, the wall collapsed. Labourers Meghraj, Kishori, Mohanlal, Punnu, Rajesh, Sukhram, Ramesh, Sonu @ Suresh and Raj Kumar were buried under the debris. They were pulled out by the others. However, Meghraj, Kishori, Mohanlal, Punnu, Sukhram and Rajesh lost their lives on the spot. Ramesh, Sonu @ Suresh and Rajkumar sustained injuries. Out of aforesaid victims Ramesh, Punnu, Sukhram, Mohanlal, Meghraj and Kishorilal belonged to Scheduled Castes. After investigation, charge sheet was filed and after hearing the accused persons, the trial Court framed charges as aforesaid.
Cr.R.No.1787/2016 33. Learned counsel for the petitioner has assailed the charge mainly on the ground that the petitioners were not driving the J.C.B. Machine. As per prosecution case, they had merely directed co-accused Naresh to fill the soil by J.C.B. Machine. Due to rashness and negligence of co-accused Naresh, the J.C.B. Machine crashed into the wall causing it collapsed. Thus, labourers died as a direct result of negligence of the co- accused Naresh. In these circumstances, the petitioners cannot be held vicariously liable for negligence or rashness of co- accused Naresh. It has further been submitted that at any rate, in the facts and circumstances of the case, this was a clear case of rashness or negligence. Knowledge of likelihood that death would be caused, cannot be imputed to any of the accused persons. Learned counsel for the petitioners has invited attention of the Court to the judgment rendered by the Supreme Court in the case of Sushil Ansal vs. State through C.B.I. 2014 AIR SC 2689; therefore, it has been prayed that the petitioners be discharged.
4. Learned Government Advocate for the respondent/State on the other hand, has supported the impugned order.
5. On perusal of the record and due consideration of rival contention, the Court is of the view that this criminal revision must fail for the reasons hereinafter stated:
6. Before the adverting to the facts of the case, it would be appropriate refer to the prevailing legal position. The Supreme Court has held in the case of Kurban Hussein Mohamedalli Bangawalla Vs. State of Maharashtra, AIR 1965 SC 1616 as follows:
4.We may in this connection refer to Emperor v. Omkar Rampratap, 4 Bom LR 679, where Sir Lawrence Jenkins had to interpret S. 304-A and observed as follows:-
"To impose criminal liability under Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a Cr.R.No.1787/2016 4 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 causa sine qua non."
This view has been generally followed by High Courts in India and is in our opinion the right view to take of the meaning of S. 304-A. It is not necessary to refer to other decisions, for as we have already said this view has been generally accepted.
7. However, in the case of Sushil Kumar Ansal (Supra) the Supreme Court, though in a different set of circumstances, has held that where number of deaths had occurred in a cinema house caused due to asphyxia as a result of fire smokes, inability of victims to move out of smoke filled area was direct cause of their death. Therefore, the accused persons as occupiers of the cinema house, were liable criminally under Section 304-A of the I.P.C. for aforesaid deaths as they were responsible for the closure of exits on one side, closure of gangway of that side, failure to provide required number of exits, failure to provide emergency alarm system and even emergency lights or failure to keep exit signs illuminated and failure to provide help to the victims, when they needed it most. All these failures were attributable to the occupiers.
8. In aforesaid legal backdrop reverting back to the facts and circumstances of the present case we may note that a warehouse owned by present petitioners was under
construction. The petitioners were present on the spot. A wall was being plastered from outside by the deceased labourers on the direction of the petitioners. At the same time, the filling work by a J.C.B. Machine was being carried out by co-accused Naresh inside the ware house, again on the directions of the petitioners. We may note here that the work was not being conducted through a contractor. It was being directly supervised by the petitioners. Both works, i.e., filling and Cr.R.No.1787/2016 5 plastering were simultaneously going on under the supervision of and on the directions of the petitioners. J.C.B. Machine is used for moving earth. It is not a precision guided machine; therefore, it cannot be accurately maneuvered. When soil was being filled in the gaps around the wall by a J.C.B. Machine, it was always likely that the shovel of the machine would the wall. In these circumstances, it was duty of the petitioners to ensure that the area around the wall was clear of human beings, but they failed to take that precaution which a person of common prudence would take. Moreover, the deceased labourers had expressly voiced their concern that both works should not be carried out simultaneously because it might result in loss of a lives; yet, the petitioners went ahead with both works resulting in loss of lives. As such, even if the petitioners were not liable for driving the J.C.B. Machine negligently or rashly, they were certainly liable for their negligence in failing to ensure that the area around the wall was free of human beings. The deaths were caused not only due to negligent driving of J.C.B. Machine but also due to the fact that at that time labourers were working on the other side of the wall. This was also direct and proximate cause of deaths and for this act of omission, the petitioners can be held criminally liable. Thus, this not a case where the petitioners can be discharged in the matter.
9. Now the question remains whether the petitioners can be attributed with requisites knowledge to bring the case under the ambit of Section 304 of the I.P.C. or can be only be attributed with rashness or negligence, bringing their act under the purview of Section 304-A of the I.P.C?
Cr.R.No.1787/2016 610. The Supreme Court has held in the case of State of Maharashtra Vs. Salman Salim Khan, AIR 2004 SC 1189 has held as follows:
4. The law governing the trial of criminal offences provides for alteration of charges at any stage of the proceedings depending upon the evidence adduced in the case. If the trial is being held before a Court of Magistrate it is open to that Court at any stage of trial if it comes to the conclusion that the material on record indicates the commission of an offence which requires to be tried by a superior Court, it can always do so by committing such case for further trial to a superior Court as contemplated in the Code of Criminal Procedure (the Code).
On the contrary, if the trial is being conducted in a superior Court like the Sessions Court and if that Court comes to the conclusion that the evidence produced in the said trial makes out a lesser offence than the one with which the accused is charged, it is always open to that Court based on evidence to convict such accused for a lesser offence. Thus, arguments regarding the framing of a proper charge are best left to be decided by the trial Court at an appropriate stage of the trial. Otherwise as has happened in this case proceedings get protracted by the intervention of the superior Courts.
11. But for the fact that two Courts below i.e. the Sessions Court and the High Court having gone into this issue at length and having expressed almost a conclusive opinion as to the nature of offence, we would not have interfered with the impugned order of the High Court because, as stated above, neither of the sides would have been in any manner prejudiced in the trial by framing of a charge either under Section 304-A or Section 304, Part II, IPC except for the fact that the forum trying the charge might have been different, which by itself, in our opinion, would not cause any prejudice. This is because at any stage of the trial it would have been open to the concerned Court to have altered the charge appropriately depending on the material that is brought before it in the form of evidence. But now by virtue of the impugned judgment of the High Court even if in the course of the trial the Magistrate were to come to the conclusion that there is sufficient material to charge the respondent for a more serious offence than the one punishable under Section 304-A, it will not be possible for it to pass appropriate order. To that extent the prosecution case gets pre-empted.
11. In view of the aforesaid observation of Supreme Court, this Court would not go into aforesaid question in the revisionary jurisdiction and will leave it to be adjudicated upon by the trial Court after recording evidence in the case.
12. In aforesaid view of the matter, this criminal revision has no force. Consequently, it is dismissed.
(C.V. Sirpurkar) Judge ahd Digitally signed by MOHD AHMAD Date: 2018.08.15 23:01:16 -07'00' Cr.R.No.1787/2016 7 HIGH COURT OF MADHYA PRADESH : AT JABALPUR Cr.R.No.1787/2016 Manish Rai and another Vs. State of M.P. ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER Post for:- 14.8.2018 {C.V. Sirpurkar} Judge