IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.9124 OF 2016 BETWEEN:
SRI M SRINIVAS S/O SRI LAKSHMINARAYAN, AGED ABOUT 52 YEARS, WORKING AS ENGINEER, M/S MALOO CONSTRUCTIONS (INDIA) PVT LTD., R/AT NO. 82, 1ST FLOOR, 8TH BLOCK, 2ND STAGE, NAGARBHAVI, BENGALURU.
(BY SRI: MURTHY D NAIK, ADVOCATE) AND THE STATE REPRESENTED BY YELAHANKA TRAFFIC POLICE, BENGALURU CITY.
... PETITIONER ... RESPONDENT (BY SRI: I.S.PRAMOD CHANDRA, SPP-II) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.10878/2016 ON THE FILE OF M.M.T.C.-III, BANGALORE AT ANNEXURE-A AGAINST THE PETITIONER AND QUASH THE ENTIRE CHARGE SHEET IN C.C.NO.10878/2016 AT ANNEXURE-D FILED FOR THE OFFENCE P/U/S 279,304(A) OF IPC AND SEC. 134(A) AND (B) R/W 187 OF I.M.V. ACT AGAINST THE PETITIONER.
THIS CRL.P COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner has sought to quash the proceedings initiated against him in C.C.No.10878/2016 pending on the file of the Metropolitan Magistrate, Traffic Court-III at Bengaluru for the offences punishable under sections 279, 304A of Indian Penal Code and sections 134(a) and (b) read with 187 of Indian Motor Vehicles Act, 1988.
2. The petitioner is shown as accused No.2 in the charge-sheet. The case of the prosecution is that on 13.02.2016 at about 15.05 hours, accused No.1 being the driver of a tipper lorry bearing registration No.KA.02.AE.0928 drove the said vehicle in a rash and negligent manner and dashed against the motorcycle bearing No.KA.02.EL.2449 driven by the deceased, leading to his death in front of Balaji Motors, Srinivasapura, Kogilu-Bellalli Main Road, Yelahanka.
3. The allegation against the present petitioner is that he being the Supervisor Engineer of M/s.Malu Constructions (India) Pvt., Ltd., while executing the work order issued by Bengaluru Water Supply Board pertaining to laying of water pipe, had negligently left a heap of mud on the road without taking precautionary measures leading to accident resulting in the death of the rider of the motor cycle. The application filed by the petitioner for discharge has been rejected by the trial court.
4. Learned counsel for the petitioner submits that even though charge-sheet is filed for the offences under sections 279, 304A of Indian Penal Code, section 134(a) and (b) read with 187 of Indian Motor Vehicles Act, learned Magistrate has taken cognizance only for the offences under sections 279 and 304A of Indian Penal Code without assigning any reasons for doing so. The petitioner herein was not named in the complaint. A reading of the complaint would indicate that the accident was caused by accused No.1 namely the driver of the tipper lorry bearing No.KA.02.AE.0928. There is not even a whisper in the FIR that the heap of mud dumped at the spot was the cause for the said accident. There was no material to frame charges against the petitioner for the offences for which cognizance was taken. Petitioner has been arrayed as accused No.2 in his capacity as the Engineer of M/s.Malu Constructions (India) Pvt., Ltd. According to the prosecution, the petitioner was the Supervisor of the construction work pertaining to laying of water pipe. It is settled position of law that a person cannot be held vicariously liable for a criminal offence without there being any material against him to fasten the liability. Placing reliance on the decision of the Hon’ble Supreme Court in SUSHIL ANSAL vs. STATE through Central Bureau of Investigation reported in (2014) 6 SCC 173 and KURBAN HUSSEIN MOHAMEDALLI RANGAWALLA vs. STATE OF MAHARASHTRA reported in AIR 1965 SC 1616, learned counsel has emphasized that in order to fasten criminal liability for the offence under section 304A of Indian Penal Code, it is necessary that the death should have been the direct result of 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 causa causans; and not mere causa sine qua non. In the absence of such material, the prosecution of the petitioner for the alleged offence under Section 304A of IPC is an abuse of the process of Court.
5. Learned SPP-II representing the State has argued in support of the charge-sheet laid against the petitioner and would submit that having regard to the incriminating evidence available on record, petitioner cannot escape from his liability under section 304A of Indian Penal Code and has sought for dismissal of the petition.
6. I have considered the rival submissions and have carefully gone through the material on record.
7. The charge-sheet is laid against two accused persons for the offences punishable under sections 279, 304A of Indian Penal Code and sections 134(a) and (b) read with 187 of Indian Motor Vehicles Act, 1988. The allegations against the present petitioner is that the petitioner herein while attending to the work of laying pipe lines, had left a heap of mud on the road without taking precautionary measures which had led to the accident leading to the death of son of the complainant. According to the prosecution, the deceased was riding his motorcycle bearing registration No.KA.02.EL.2449 and was proceeding towards Bellalli. Accused No.1 who was driving the tipper lorry bearing registration No.KA.02.AE.0928 was also proceeding on the same direction and hit against the motorcycle driven by the deceased, leading to his death.
8. A reading of the panchanama and the spot sketch indicate that the accident spot was a 60 ft. road separated by a divider. Tipper lorry as well as motorcycle driven by the deceased were proceeding on the same direction. On account of the dumping of mud on the right side of the road, driver of the tipper lorry appears to have taken the lorry to the left side, as a result, he hit against the motorcycle driven by the deceased. These facts, prima facie demonstrate that the immediate cause for the death of the deceased was due to the collision of the motor cycle and the tipper lorry driven by accused No.1. The charge-sheet has been filed for the offences under sections 279, 304A of Indian Penal Code, section 134(a) and (b) read with 187 of Indian Motor Vehicles Act, without specifying as to which of the accused persons are liable for the said offences. Learned Magistrate has framed charges only for the offences under sections 279 and 304A of Indian Penal Code and not for the offences under the provisions of Indian Motor Vehicles Act.
9. Insofar as the offence under section 304A of Indian Penal Code is concerned, the facts on record prima facie indicate that the immediate and proximate cause of death of the deceased was the rash and negligent act of accused No.1 and not dumping of mud on the road. It is not the case of the prosecution that the motor cycle driven by the deceased got toppled on the mound of mud or that the said mud obstructed in the safe driving of the motor cycle. Material on record indicate that the deceased was on the left side of the road, whereas the mud was dumped on the right side of the road.
10. Section 304A Indian Penal Code deals with death by negligence. The section reads:
“Whoever causes the death of any person by doing any rash and 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.”
11. It is now well settled that in order to constitute an offence under section 304A of Indian Penal Code, the negligence imputed to the accused must be gross in nature. Though the term “gross” has not been used in section 304A of Indian Penal Code, in JACOB MATHEW vs. STATE OF PUNJAB & Others in (2005) 6 SCC 1, the Hon’ble Supreme Court while examining a case of criminal medical negligence by a Doctor under section 304A of Indian Penal Code, has reviewed the case law on the subject and in para 48 thereof, has held as under:
“(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.
(6) The word ‘gross’ has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ‘gross’. The expression ‘rash or negligent act’ as occurring in Section 304-A IPC has to be read as qualified by the word ‘grossly’.”
12. In SUSHIL ANSAL vs. STATE through Central Bureau of Investigation (2014) 6 SCC 173, the Hon’ble Supreme Court in para 78 has held as under:
“There is no gainsaying that negligence in order to provide a cause of action to the affected party to sue for damages is different from negligence which the prosecution would be required to prove in order to establish a charge of ‘involuntary manslaughter’ in England, analogous to what is punishable under Section 304-A IPC in India. In the latter case it is imperative for the prosecution to establish that the negligence with which the accused is charged is ‘gross’ in nature no matter that Section 304-A IPC does not use that expression. What is ‘gross’ would depend upon the fact situation in each case and cannot, therefore, be defined with certitude. Decided cases alone can illustrate what has been considered to be gross negligence in a given situation.”
13. It is now well settled that, in order to fasten criminal liability for the offence under section 304A of Indian Penal Code, the prosecution is required to establish that the act of the accused No.1 was the proximate and immediate cause of death and that the death was caused without the intervention of another person’s negligence. As held in SUSHIL ANSAL’s case, supra, it must have been the causa causans; and not mere causa sine qua non.
14. In the instant case, petitioner herein is implicated in the alleged offence on the allegation that he was responsible for causing the accident by leaving heap of mud on the accident site. In Kurban Hussein Mohamedalli Rangawalla, supra, the Hon’ble Supreme Court dealt with an identical situation. In the said case, the allegation against the appellant therein was that he allowed the burners to be used in the same room in which varnish and turpentine were stored, which were alleged to be negligent act and fire resulted because of the proximity of the burners. But the said contention was negatived by the Hon’ble Supreme Court by endorsing the view taken in EMPEROR vs. OMKAR RAMPRATAP in (1902) 4 Bombay LR 679, the Hon’ble Supreme Court has observed that, “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. 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 S.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 proximate and efficient cause without the intervention of another’s negligence. The appellant must, therefore, be acquitted of the offence under S.304-A.”
15. In the instant case also, the proposition laid down in the above decision, in my view, is squarely applicable to the facts of this case. A plain reading of the charge-sheet discloses that the material allegations constituting negligence are directed only against accused No.1. The material on record indicates that the deceased died on account of the rash and negligent act of accused No.1 in hitting the motorcycle driven by the accused. Therefore, the act of accused No.1 was the proximate and immediate cause of death of the deceased. The act of the petitioner/accused No.2 in leaving heap of mud on the road may amount to an offence under section 134 of Indian Motor Vehicles Act, but the same does not amount to an act of negligence within the meaning of section 304A of Indian Penal Code. Thus, on consideration of all the above facts and circumstances of the case, in the light of the law applicable to the facts of this case, I am of the clear opinion, that petitioner/accused No.2 cannot be proceeded for negligence in causing the death of the deceased within the meaning of Sections 304A and 279 of Indian Penal Code. Consequently, the prosecution of the petitioner being illegal, the same amounts to abuse of process of Court.
As a result, the petition is allowed. The proceedings initiated against the petitioner in C.C.No.10878/2016 pending on the file of Metropolitan Magistrate Traffic Court-III, Bengaluru is hereby quashed.
Sd/- JUDGE Bss/mn/-