Madras High Court
L.Ashok Kumar vs State Represented By on 26 February, 2021
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
1 Crl.O.P.No.2801 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.02.2021
CORAM :
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
Crl.O.P.No.2801 of 2019
and
Crl MP No.1820 of 2019
L.Ashok Kumar .. Petitioner
Vs.
1. State Represented by
Inspector of Police,
Pallapatty Police Station,
Salem City,
Salem District. ..1st Respondent/
complainant
2. Mr.R.Perumal ..2nd respondent /
Defacto complainant
Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C. to
call for the records of the proceedings in C.C.No.317 of 2018 pending
on the file of the Judicial Magistrate, Court No.II, Salem and quash the
same.
For Petitioner : Mr. N.Naganathan
For Respondent : Mr.C.Raghavan
https://www.mhc.tn.gov.in/judis/
Government Advocate
2 Crl.O.P.No.2801 of 2019
ORDER
This petition has been filed to quash the proceedings in C.C.No.317 of 2018, on the file of the Judicial Magistrate, Court No.II, Salem.
2. The case of the prosecution is that the petitioner is the owner of the Mill and he had engaged men to remove sand, garbage etc., inside the premises. A JCB machine was clearing the debris and dumping the garbage outside the compound wall and this was removed through a tipper lorry, which was driven by the deceased Thangadurai. During the course of work, the lorry is said to have come in live contact with High tension electric wire and as a result of the same, the driver was electrocuted and he died on the spot.
3. Based on the complaint given by the 2nd respondent, an FIR came to be registered for an offence under Section 304(A) of IPC.
https://www.mhc.tn.gov.in/judis/ 3 Crl.O.P.No.2801 of 2019
4. On completion of the investigation, a final report has been filed before the Court below against the petitioner for an offence under section 304(A) of IPC. Aggrieved by the same, the present Criminal Original Petition has been filed before this Court.
5. Heard the learned counsel appearing for the petitioner and Mr.C.Raghavan, learned Government Advocate appearing on behalf of 1st respondent. The 2nd respondent has been served with notice and the name of the 2nd respondent has also sbeen printed in the cause-list and there is no appearance either in person or through counsel.
6. The petitioner wanted to clear the debris inside the oil mill. He engaged the services of a contractor. The debris were collected by using JCB Machine and dumped outside the compound wall. From there, it was cleared by using a tipper lorry, which was driven by the deceased. In the course of work, unfortunately, the tipper lorry got in touch with a high tension electric wire. The deceased died due to electrocution. On the admitted case of the https://www.mhc.tn.gov.in/judis/ 4 Crl.O.P.No.2801 of 2019 prosecution, it must be seen if the same makes out an offence under section 304(A) of IPC.
7. It will be relevant to take note of the earlier judgement of this Court in Crl.OP No.1239 of 2018 dated 20.12.2018. The relevant portions in the judgement are extracted hereunder :-
16. Insofar as the Sections 338 and 304(A) of IPC, both these provisions contemplate "an act" to be performed by an individual, which is rash and negligent in nature. In this case, there is no such act done by the petitioners. It will be relevant to rely upon the Judgments cited by the learned senior counsel in this regard :
i. AIR 2005 SC 3180 [Jacob Mathew Vs. State of Punjab and another] Negligence — as a tort and as a crime
12. The term “negligence” is used for the purpose of fastening the defendant with liability under the civil law and, at times, under the criminal law. It is contended on behalf of the https://www.mhc.tn.gov.in/judis/ 5 Crl.O.P.No.2801 of 2019 respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence up to the modern times. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In R. v. Lawrence [(1981) 1 All ER 974 :
1982 AC 510 : (1981) 2 WLR 524 (HL)] Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell [(1981) 1 All ER 961 :
1982 AC 341 : (1981) 2 WLR 509 (HL)] and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of https://www.mhc.tn.gov.in/judis/ 6 Crl.O.P.No.2801 of 2019 treating all problems of criminal liability as soluble by classifying the test of liability as being “subjective” or “objective”, and said: (All ER p. 982e-f) “Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it.”
13. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do https://www.mhc.tn.gov.in/judis/ 7 Crl.O.P.No.2801 of 2019 not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimising violations, may be motivated by thrill-seeking. These are clearly reckless.
14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions [1937 AC 576 :
(1937) 2 All ER 552 (HL)] stated: (All ER p. 556 C) “Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established.” Thus, a clear distinction exists between “simple lack of care” incurring civil liability and “very high degree of negligence” which is required in criminal cases. In Riddell v. Reid[(1942) 2 All https://www.mhc.tn.gov.in/judis/ 8 Crl.O.P.No.2801 of 2019 ER 161 : 1943 AC 1 (HL)] (AC at p. 31) Lord Porter said in his speech — “A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability.” (Charlesworth & Percy, ibid., para 1.13)
17. In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree.
ii (2005) 6 SCC 525 [ Ambalal Bhat Vs. State of Gujarat]
10. It appears to us that in a prosecution for an offence under Section 304-A, 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 https://www.mhc.tn.gov.in/judis/ would have then examined to what extent additional evidence of 9 Crl.O.P.No.2801 of 2019 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 November 12, 1962, 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 appellants' 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 causa causans; it is not enough that it may have been the cause sine qua non”. This view has been adopted by this Court in several decisions. In Kurban Hussein Mohammedali Rangwala v. State of Maharashtra [(1965) 2 SCR 622] the accused who had manufactured wet paints without a licence was acquitted of the charge under Section 304- A 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 https://www.mhc.tn.gov.in/judis/ 10 Crl.O.P.No.2801 of 2019 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 Suleman Rehiman Mulani v. State of Maharashtra [(1968) 2 SCR 515] 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 under Section 304-A. It would be different if it can be established as in the case of Bhalchandra alias Bapu v. State of Maharashtra [(1968) 3 SCR 766] that deaths and injuries caused by the contravention of a prohibition in respect of the substances which are highly dangerous as in the case of explosives in a cracker 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.
iii. AIR 1965 SC 1616 [ Kurban Hussein Mohamedalli Rangawalla Vs. State of Maharashtra]
3. We may in this connection refer to Emperor v. Omkar Rampratap [(1902) IV Bom LR 679] where Sir Lawrence Jenkins had to interpret Section 304-A and observed as follows:
“To impose criminal liability under Section 304-A Indian Penal https://www.mhc.tn.gov.in/judis/ 11 Crl.O.P.No.2801 of 2019 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.” 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 Section 304-A. It is not necessary to refer to other decisions, for as we have already said this view has been generally accepted. Therefore the mere fact that the fire would not have taken place if the appellant had not allowed burners to be put in the same room in which turpentine and varnish were stored, would not be enough to make him liable under Section 304-A, for the fire would not have taken place, with the result that seven persons were burnt to death, without the negligence of Hatim. The death in this case was therefore in our opinion not directly the result of a rash or negligent act on the part of the appellant and was not the proxinate and efficient cause without the intervention of another's negligence. The appellant must therefore be acquitted of the offence under Section 304-A. iv. AIR 1970 Mad 198 [Public Prosecutor Vs. https://www.mhc.tn.gov.in/judis/ 12 Crl.O.P.No.2801 of 2019 Pitchaiah Moopanar alias Pitchaian Pillai]
9. There cannot be any doubt that the building collapsed as a result of which, unfortunately 35 school children died and several others were injured. The main question is whether the collapse of the building was due to the rash or negligent act of the respondent. The learned Public Prosecutor reiterated the same points urged on behalf of the prosecution before the appellate Court, but stressed before me that the act of the respondent in not having attended to immediate repairs by taking technical advice after having come to know that it required such repairs should be held to be a rash and negligent act on his part. He relied upon the evidence of P.W. 208 Paramanandam, the carpenter. P.W. 208 stated that a few months before the collapse of the school building the respondent sent for him to inspect the beams of the building. He found one beam of the ground floor and one beam of the first floor bent.
10. It is not the case of the prosecution that the respondent himself constructed the building. It is not disputed that he sought the assistance of the masons and the masons constructed the building. If the masons had not done the work properly and if they had been negligent in not mixing the lime mortar in proper proportions, the respondent could not be made https://www.mhc.tn.gov.in/judis/ 13 Crl.O.P.No.2801 of 2019 liable for the negligence of those persons who actually constructed the building, who are supposed to be skilled. The respondent is a layman. He, therefore, cannot be held liable for the negligence of the persons who actually constructed the building which negligence is the causa causans for the collapse of the building.
17. It is clear from the above judgments that the death "must be the causa casusans; it is not enough it may have been the cause sine qua non". To fasten liability in criminal law, the decree of negligence has to be higher. There must at least be recklessness or total disregard for the possible consequences. Simple lack of care, howsoever bad the consequences are, will not constitute criminal negligence.
7. In order to fasten the liability on the petitioner, there must be some material to show that the petitioner has acted with recklessness and in total disregard for the possible consequences.
In the present case, the petitioner had no control over the tipper lorry that was handled by the deceased and unfortunately, the lorry came in touch with a live HT Wire. Insofar this incident is concerned, the https://www.mhc.tn.gov.in/judis/ 14 Crl.O.P.No.2801 of 2019 petitioner cannot be held to be the causa causans. In the absence of the same, the final report filed against the petitioner for an offence under Section 304(A) of IPC is unsustainable.
8. In view of the above, this Court has no hesitation to interfere with the proceedings in C.C.No.317 of 2018 pending on the file of the Judicial Magistrate, Court No.II, Salem and accordingly, the same is quashed. This Criminal Original petition is allowed. Consequently, the connected miscellaneous petition is closed.
25.02.2021 Index :Yes/No Internet:Yes/No rka https://www.mhc.tn.gov.in/judis/ 15 Crl.O.P.No.2801 of 2019 To
1. State Represented by Inspector of Police, Pallapatty Police Station, Salem City, Salem District.
2. The Additional Public Prosecutor High Court, Madras.
https://www.mhc.tn.gov.in/judis/ 16 Crl.O.P.No.2801 of 2019 N.ANAND VENKATESH, J.
rka Crl.O.P.No.2801 of 2021 https://www.mhc.tn.gov.in/judis/ 25.02.2021