Research › Search › Judgment

Patna High Court · body

2004 DIGILAW 699 (PAT)

Ratan Kumar Kejriwal v. State Of Bihar

2004-07-15

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli kumar Prasad, J. 1. This application has been filed for quashing the order dated 30th July, 2002 passed by the Additional Sessions Judge, Fast Track Court No. I. Darbhanga in Sessions Trial No. 266 of 1997 whereby the prayer of the petitioner for discharge has been rejected holding that the material prima facie constitute offence for framing charges under Secs. 304. Part II, 120-B and 287 of the Indian Penal Code. 2. On the basis of a report given by one Sharwan Kumar, Darbhanga Sadar P.S. Case No. 41 of 1989 was registered under Secs. 287 and 304 of the Indian Penal Code. Police after investigation submitted charge-sheet against the petitioners under Secs. 287, 302 and 120-B/34 of the Indian Penal Code, 1860 . Charge-sheet was laid before the Chief Judicial Magistrate who by order dated 12-12-1995 took cognizance of the offence under Secs. 287, 302 and 120-B/34 of the Indian Penal Code and transferred the case to another Magistrate for commitment. The case was ultimately committed to the Court of Session where the petitioners filed an application for discharge. According to the prosecution petitioners had established a factory which was making utensils and running in the name of Darbhanga Aluminium Industries on lease which started 3-4 months prior to the occurrence. It was alleged that on 17-3-1989 there was blast in the furnace which demolished the wall and broke the glass panes causing injury to 15-16 persons. It was further alleged that two employees of the factory died at the spot and many of them had sustained grievous injury. During the course of investigation it transpired that there was no proper arrangement for their safety. It also came into light that in spite of repeated request by the labourers to the employer to remedy the wrong the management did not take any step in this regard. 3. During the trial an application was filed for discharge which has been rejected by the learned Judge observing that the case diary contains sufficient materials to frame charge against the accused persons at least for offence punishable under Secs. 304, Part II along with 120-B of the Indian Penal Code because the accused persons even on demand by the employees did not take step for their protection from explosion. 4. 304, Part II along with 120-B of the Indian Penal Code because the accused persons even on demand by the employees did not take step for their protection from explosion. 4. According to the petitioners they have taken all safety measure which would be evident from the report of the Factory Inspector and as such it was contended that the incident was just a accident for which the petitioners cannot be criminally prosecuted. It is not in dispute that in the explosion three persons were killed and several persons got injury. 5. Mr. Kanhaiya Prasad Singh appearing on behalf of the petitioner submits that explosion in the furnace leading to death of three workmen and injuries to several shall not constitute an offence u/s. 304, Part II of the Indian Penal Code and the materials on record utmost constitute an offence either under Sec. 279 or 285 or 304-A or 337 of the Indian Penal Code, 1860 . In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Kurban Hussein Mohamedalli Rangawalla V/s. State of Maharashtra ( AIR 1965 SC 1616 ) and my attention has been drawn to the following passage from the said judgment:- - "We can only say that it was lucky that fire had not broken out earlier. But there can be no doubt that omission of the appellant to take proper care with burners in particular when such combustible matter as turpentine in large quantity was stored at a distance of 8 to 10 feet from the burners was such omission as amounted to insufficient guard against probable danger to human life. Finally when we remember that all this was done in breach of the general and special conditions of the licence given to the appellant for storage of turpentine, varnish and paints, we have no doubt that the appellant knowingly, or at least negligently, failed to take such order with fire and the combustible matter as would be sufficient to guard against any probable danger to human life. In the circumstances we are of opinion that the appellant has been rightly convicted u/s. 285 of the Indian Penal Code, 1860 . In the circumstances we are of opinion that the appellant has been rightly convicted u/s. 285 of the Indian Penal Code, 1860 . Considering that seven lives have been lost on account of the negligence of the appellant in this connection, the sentence of six months rigorous imprisonment which is the maximum provided u/s. 285, cannot be said to be harsh." 6. Reliance has also been placed on a decision of the Supreme Court in the case of Balchandra V/s. State of Maharashtra ( AIR 1968 SC 1319 ) and my attention has been drawn to paragraphs 11 and 12 of the said judgment, which reads as follows :- - "11. All the above cases show that criminal negligence can be found on varying set of circumstances. The test which have been applied appear to be fully applicable to the facts of the present case including the one of direct and efficient cause. The appellants had, undoubtedly displayed a high degree of negligence by allowing or causing to be used dangerous and prohibited compositions and substances which must be held to have been the efficient cause of the explosion." 12. The appellants were therefore rightly convicted and sentenced under Secs. 304-A and 337 of the Indian Penal Code, 1860 . As no other point has been pressed or arises for consideration, the appeal is dismissed. The appellants shall forthwith surrender to their bail bonds." 7. I do not find any substance in the submission of the learned counsel and the authorities relied on are clearly distinguishable. In my opinion in case when an accused is apprised of the negligence which he has committed and even thereafter does not take any step to remedy that, the act cannot be said to be merely a negligence. In the present case, the witnesses who are none other than the employees of the factory have not only disclosed that there was no proper arrangement for their safety but they have gone to the extent of saying that in spite of repeated requests by the labourers no step was taken. In such circumstance, it cannot be said that it was only rash or negligent act but the petitioners had knowledge that by such act death may result. 8. In such circumstance, it cannot be said that it was only rash or negligent act but the petitioners had knowledge that by such act death may result. 8. Now referring the authorities of the Supreme Court in the cases of Kurban Hussain Moameddalli Rangawalla (supra) and Balchandra (supra) death had taken place on account of negligence only whereas in the present case death had taken place because of the explosion in the furnace. The labourers have repeatedly requested to remedy the defect but in spite of their repeated demand the petitioners did not take any step for their safety from the explosion. 9. From the discussion aforesaid, it is evident that the learned Judge did not err in rejecting the application of the petitioners. Any observation made by me in this order or by the learned Judge in the impugned order shall not prejudice the petitioners during the trial. 10. Application stands dismissed with the observation aforesaid.