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Madras High Court · body

2012 DIGILAW 3526 (MAD)

Petitioner v. Respondent

2012-08-08

G.M.AKBAR ALI

body2012
Judgment : 1. The petitioners in both the petitions, who are alleged to have committed an offence under Sec.279, 304(ii) of IPC r/w Sec.182(A) and 190 of Motor Vehicles Act, were arrested on 26.7.2012 in Cr.No.929 of 2012 on the file of the respondent police, seek bail. 2. The petitioner in Crl.O.P.18406 of 2012 has been arrayed as A.5 and the petitioner in Crl.O.P.No.18451 of 2012 has been arrayed as A.2. Since the case has been registered against both the petitioners along with the others in Cr.No.929 of 2012 on the file of the respondent police and both the applications are coming for consideration for bail, a common order has been passed. 3. The case of the prosecution is as follows: On 25.7.2012, a girl, aged about 7 years, by name Sruthi, studying in II Std in a private school, run by the petitioner in Crl.O.P.18451 of 2012 (A.2) was proceeding in one of the school bus bearing Registration No.TN-23-S-9952 from Selaiyur to Mudichur. At 4.30 p.m, when the bus was reaching near one Anandha Hardware Store in Muduchur road, the girl fell down through a hole which was on the floor of the bus, on the sixth row between two seats, due to which, she was run over by the rear wheel of the bus and died on the spot. 4. A complaint was given by one Sekar, maternal uncle of the victim girl, alleging that the driver of the bus (A.1), the registered owner of the bus cum correspondent of the school (A.3, as per FIR), a transport contractor of the bus (A.2, as per FIR), and, the cleaner (A.4) intentionally caused the death of the girl and thereby a case has been registered against all the accused. Though the name of the petitioner in Crl.O.P.No.18406 of 2012 was mentioned in the FIR, he was not initially shown as an accused. 5. On receipt of information, the Sub Inspector of Police, visited the scene of occurrence and prepared the rough sketch and magazar in the presence of witnesses. The deadbody of the victim girl was taken to Government Hospital, Tambaram and Sub Inspector of Police conducted the inquest and after postmortem, the body was handed over to the father of the deceased, one Sethu Mathavan. The respondent/Inspector of police, took up further investigation and examined five witnesses and recorded their statements. 6. The deadbody of the victim girl was taken to Government Hospital, Tambaram and Sub Inspector of Police conducted the inquest and after postmortem, the body was handed over to the father of the deceased, one Sethu Mathavan. The respondent/Inspector of police, took up further investigation and examined five witnesses and recorded their statements. 6. On 25.7.2012 itself, the Sub Inspector of Police, arrested the driver of the bus by name Seeman, the Correspondent cum registered owner of the bus Dr.N. Vijayan, the lease owner of the bus one Yogesh Silvera and one Shanmugam cleaner of the bus and they were produced before the learned Judicial Magistrate, Tambaram and remanded to judicial custody. 7. On 26.7.2012, he also arrested the petitioner in Crl.O.P.No.18406 of 2012, and he was also produced before the learned Judicial Magistrate and remanded to judicial custody. The respondent police arrested one Balraj, Administrative Officer of the School, one Ravi who was the contractor for the maintenance of the school bus and they were also remanded to judicial custody. For convenience sake, the petitioner in Crl.O.P.No.18451 of 2012 is mentioned as A.2 and the petitioner in Crl.O.P.No.18406 of 2012 is mentioned as A.5. 8. The investigation revealed that the bus bearing Registration No.TN-23-S-9952 was purchased by A.2, in the name of the School and was entrusted to the said Ravi for maintenance who runs the transport contract. The bus was subjected for granting of fitness certificate before A.5 on 9.7.2012, who issued a fitness certificate and the accident has occurred within a period of 16 days, thus making it clear that while issuing the fitness certificate, the Motor Vehicle Inspector has not noticed the hole on the floor of the bus, which will be endangering the life of the school children while travelling. Facing such charges and investigation in progress, A.2, the registered owner of the bus cum correspondent of the School and A.5, the Motor Vehicle Inspector, who issued the fitness certificate have come forward with the above said two bail applications to enlarge them on bail on various grounds: 9. Though both the petitioners have been arrayed as A.2 and A.5, alleged with the commission of the similar offence, they stand on different footings and therefore, the grounds taken by them are considered individually. 10. Though both the petitioners have been arrayed as A.2 and A.5, alleged with the commission of the similar offence, they stand on different footings and therefore, the grounds taken by them are considered individually. 10. Grounds in Crl.O.P.No.18451 of 2012: According to the petitioner, he is the Founder and Correspondent cum Principal of the School, who started the school in the year 1986 and now, running a group of school with the strength 14,000 students and 601 staff members. 11. The conveyance facility to the students is provided through one N.R. Enterprises, a transport operator, from the Academic year 2010. However, the R.C.book stands in the name of the petitioner's school. The transport operator had a contract with one Yogesh Silvera to maintain and regulate all the vehicles plying for the school. There are 38 school buses which are owned and run by the School and 4 buses were taken on contract from the said Yogesh Silvera. All the buses are well maintained to the best of the knowledge of the petitioner and fitness certificate is obtained periodically. The subject vehicle was sent for fitness certificate to the Regional Transport Office, Tambaram and fitness certificate was issued on 9.7.2012. The drivers are very efficient and there is no instance of rash and negligent driving by them. However, the accident that had taken place on 25.7.2012 was a misfortune which was never anticipated by the petitioner. The petitioner is a highly qualified teacher who had obtained best teacher award for the year 2002-2003, National Best Teacher Award in the year 2004 and the Silver Star Award in August 2011 from the former Presidents. 12. The name of the petitioner is added in the First Information Report as the owner, fastening a vicarious liability which cannot be sustained in criminal jurisprudence. He has been falsely implicated and is in custody from 26.7.2012. The administration of the school is affected and he is ready to co-operate with the investigation and therefore filed the present petition seeking for the above relief. 13. The grounds taken by the petitioner in 18406 of 2012 are as follows: The petitioner is the Motor Vehicle Inspector attached to Regional Transport Office, Tambaram and he is an honest and straight forward officer. The vehicle, which was involved in the accident, was given fitness certificate on 9.7.2012. 13. The grounds taken by the petitioner in 18406 of 2012 are as follows: The petitioner is the Motor Vehicle Inspector attached to Regional Transport Office, Tambaram and he is an honest and straight forward officer. The vehicle, which was involved in the accident, was given fitness certificate on 9.7.2012. While giving the fitness certificate, the petitioner has to see that the vehicle is satisfying all the conditions enumberated in Rule 62 of the Central Motor Vehicle Rules 1989. It was duly checked and after subjective satisfaction, the petitioner issued the fitness certificate. The floor of the bus is made up of plywood. The petitioner checked all the parts as mentioned in Rule 62 and every thing was perfect on 9.7.2012, but the thickness of the plywood cannot be checked by anybody. At the time of inspection, there was no hole on the floor of the bus. After issuing the certificate, the maintenance of the vehicle is the responsibility of the owner. Even according to the prosecution, on 18.7.2012, a father of a student made a complaint to the other accused stating that there was a hole in the bus, but the Management did not bother about the seriousness of the same. The bus was used by putting up a wooden plank to cover the hole and a stone was kept on it to hold it in place. On the fateful day, due to the movement of the bus, the stone fell down, the wooden plank moved, resulting in the hole left open and the girl had fallen down on the road through the same. 14. The petitioner is no way responsible for the accident. The name of the petitioner was not found in the First Information Report. The petitioner has been arrested without any basis and incarcerated. As per the dictum laid down by the Apex Court and this court, he is entitled for a bail as he is an innocent person and cannot be detained for the offence which he has not committed. 15. Mr. I.Suramanian, the learned Senior counsel who represented Mr.Gunaseelan for the Correspondent of the School, while reiterating the grounds taken by the petitioner, submitted that the petitioner is the Correspondent cum Principal of the School and cannot be held liable, as he had no knowledge about the entire incident. 15. Mr. I.Suramanian, the learned Senior counsel who represented Mr.Gunaseelan for the Correspondent of the School, while reiterating the grounds taken by the petitioner, submitted that the petitioner is the Correspondent cum Principal of the School and cannot be held liable, as he had no knowledge about the entire incident. The learned Senior counsel pointed out that there is no intention or knowledge on the part of the petitioner to cause the death of the student. The vechicles were maintained by transport contractor and another person and the petitioner cannot have personal knowledge about the hole, allegedly present in the subject bus. 16. The learned Senior counsel further submitted that merely because he is the owner of the bus, he cannot be punished for an offence under Sec.304 part(ii)IPC. The learned counsel further submitted that there is no causa causans on the part of the petitioner and therefore, being a responsible administrator of the school, who has obtained various awards, must be granted the relief. 17. The learned Senior counsel further pointed out that the ingredients of Sec.304 IPC will not be attracted in the present case and even assuming, there is a rash and negligent act, alleged to have been committed by the petitioner, it will attract only an offence under Sec.304(A) IPC, which is a bailable offence. To fortify his submissions, the learned Senior counsel relied on the following case laws: i) 1969 L.W (Crl.) 158 (Public Prosecutor vs Pitchaiah Moopanar alias Pitchaiah Pillai) ii) AIR 1972 SC 1150 (A.D. Bhatt vs State of Gujarat) iii) 2009 (14) SCC 479 (Mahadev Prasad Kaushik vs State of Uttar Pradesh and another) iv) 2009 (4) SCC 446 (Rasiklal vs Kishore) 18. As far as the petitioner in Crl.O.P.No.18406 of 2012 is concerned, Mr.R.Shanmuga Sundaram, learned Senior counsel appearing for Mr.Jayaprakash, pointed out that the petitioner is only a Motor Vehicles Inspector who, in his official capacity, has inspected the vehicle for issuing fitness certificate and only after satisfying the provision contained in Rule 62 of the Central Motor Vehicles Rules, he has issued the certificate on 9.7.2012. 19. The learned senior counsel traversed through Rule 62 and stated that there is no criterion or provision laid own in the said Rule in respect of a floor of a vehicle. 19. The learned senior counsel traversed through Rule 62 and stated that there is no criterion or provision laid own in the said Rule in respect of a floor of a vehicle. Moreover, the Motor Vehicle Inspector did not notice any hole on the floor of the bus and whatever the act done by the petitioner is in good faith and protected under Sec.114 of the Evidence Act. 20. The learned Senior counsel further pointed out that the fitness certificate was issued on 9.7.2012 and thereafter, the responsibility shifts to the owner to maintain the vehicle and therefore, the petitioner cannot be held responsible for any negligent act done by the registered owner or any other person. 21. The learned Senior counsel also pointed out that the petitioner is an honest and straight forward officer, having two children and a case has been unnecessarily foisted against him for no fault of his. 22. On the contrary, Mr. Navaneetha Krishnan, the learned Advocate General, who appeared for the State stoutly objected to granting of bail to these petitioners. As far as the petitioner in Crl.O.P.No.18451 of 2012, the owner is concerned, the learned Advocate General pointed out that even prior to the accident, on 18.7.2012, two of the parents have complained about the hole present in the bus to the driver and to the transport operator and the person, who is incharge of the maintenance and also to the Correspondent cum owner of the vehicle. The learned Advocate General also pointed out that inspite of such complaint and having knowledge that the act is likely to cause death or bodily injury to the innocent school children, the petitoner has allowed the bus to run and therefore, he has been charged for an offence punishable under sec.304 (ii) IPC. 23. The learned Advocate General further pointed out that it is the duty of the owner of the bus to check and maintain them each and every day and he cannot shirk his responsibility. Having the knowledge that the act will cause the death, he has directly committed an offence and the same cannot be belittled as vicarious liability in his capacity as the owner. Having the knowledge that the act will cause the death, he has directly committed an offence and the same cannot be belittled as vicarious liability in his capacity as the owner. The learned Advocate General further submitted that the act has directly attracted an offence punishable under Sec. 304 (ii) IPC and it is not an ordinary case of motor accident committed in a rash and negligent manner to attract an offence punishable under Sec.304(A) IPC. 24. As far as the petitioner in Crl.O.P.No.18406 of 2012 is concerned, the learned Advocate General pointed out that the petitioner has issued the fitness certificate on 9.7.2012 mechanically and had he really inspected the vehicle, he would have noticed the hole on the floor of the bus, which is dangerous to the passenger and would not have granted a fitness certificate. Moreover had he inspected the vehicle the hole would have definitely come to his notice and by issuing the fitness certificate even after such knowledge and its likely consequences, he has directly committed an offence punishable under sec.304 (ii) IPC. 25. The learned Advocate General also pointed out that the presumption under Sec.114 of the Evidence Act is not applicable when the act done is intentional. The learned Advocate General further stated that the investigation is yet to be completed and if the petitioners are granted bail, they will tamper with the witnesses and flee from justice. 26. This court also heard the submissions of Mr.Sankara Subbu, who appeared for an intervenor. The learned counsel pointed out that the First Bench of this Court had taken a suomoto writ petition on this issue and is seized of the matter. 27. The learned counsel further pointed out that the callous act of the accused have resulted in the loss of an innocent school child and opposed graning bail, as the petitioners are highly influential persons, who will tamper with the witnesses. The learned counsel also pointed out that the emotional feelings of the parents and public are to be taken note of, who are highly agitated and if bail is granted, there will be a law and order problem and the parents have not still come out of the shock. 28. Heard and perused the materials available on record and also had anxious consideration on the rival submissions made on either side. 29. 28. Heard and perused the materials available on record and also had anxious consideration on the rival submissions made on either side. 29. The admitted fact of the prosecution case is that on the fateful day, a student by name Shruthi, aged about 7 years, studying in II standard, in a private school, was proceeding in one of the school buses and in particular place, she had fallen through a hole on the floor of the bus and directly came under the rear wheel, which ran over on her head, causing instantaneous death. This gruesome incident has shocked not only the parents of the victim, the school children and their parents, but also the general public. The pathetic news was published in almost all the newspapers and the Hon'ble The Chief Justice had taken suomoto writ petition in W.P.No.20272 of 2012 and directed the concerned person to appear before the First Court. 30. According to the Management, the bus was maintained perfectly and the floor caved in opening a hole, through which, the girl fell down and it was an unfortunate incident. However, according to the prosecution, there was a gaping hole present there wide enough for a small girl to fall through, which was covered by a plank or wooden log, and a stone was placed on it. A complaint has also been made by two parents and this fact was brought to the knowledge of the management and others and inspite of such knowledge, they allowed the bus to ply and that act has caused the death of an innocent child. 31. As far as the Motor Vehicles Inspector is concerned, in the petition for bail, he would categorically state that during inspection, the petitioner could not find any difference in the thickness of plywood at the particular spot and any prudent man will come to the conclusion that there was no defect and significantly at the time of inspection, there was no hole visible on the floor of the bus. According to him, after issuance of the fitness certificate, it is the responsibility of the owner to maintain the bus and the management has failed to maintain the bus , even after the complaint given by the parents on 18.7.2012, much after the inspection of the bus. Therefore, he is not responsible for the accident and the whole fault lies on the owner. 32. Therefore, he is not responsible for the accident and the whole fault lies on the owner. 32. Before going to the merits of the matter, this court has to consider the circumstances under which a bail under Sec.439 (1) of Criminal Procedure Code can be granted or rejected. This Court is guided by various well settled principles laid down by the Apex Court. In AIR 1978 SC 179 , (Gurucharan Singh and otherS vs State of Delhi Administration), the Apex Court held as follows: 24.) "the over riding consideration in granting bail to which the adverted to earlier and which are common both in the case of sec.437(1) and 439(1) Cr.P.C are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and witnesses; the likelihood of the accused pleaing from justice;of repeating the offence; of jeoparadising his own life; being faced with a green prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of his investigation and other relevant grounds which in view of so many variable factors cannot be exhaustively set out. 33. In 2005 (8) SCC 21 (State of U.P vs Amarmani Tripathi), the Apex Court has held as follows: 18.) "it is well settled that the matters to be considered in an application for bail or (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence (ii) nature and gravity of the charge (iii) severity of the punishment in the event of conviction (iv) danger of the accused absconding or flee if released on bail (v) character, behaviour, means, position and standing of the accused (vi) likelihood of the offence being repeated (vii) reasonable apprehension of the witnesses being tampered with and (viii) danger, of course, of justice being thwarted by grant of bail". Therefore, granting of bail has to be considered only on the above said principles laid down by the Apex Court. 34. Now, let us consider the nature of the accusation, the gravity of the offence and the severity of the punishment in the present case. Therefore, granting of bail has to be considered only on the above said principles laid down by the Apex Court. 34. Now, let us consider the nature of the accusation, the gravity of the offence and the severity of the punishment in the present case. According to the petitioners, one in the capacity of the owner of the vehicle, and the other, a responsible officer, who issued the fitness certificate for the said vehicle, it is an unfortunate accident, for which, the petitioners are not responsible. 35. According to the Motor Vehicle Inspector, when he inspected the vehicle, there was no hole on the floor of the bus and he did not notice any defect and he has done the checking as per Rule 62 of the Central Motor Vehicles Rules, in which, checking the floor is not even mentioned. 36. According to the owner of the vehicle, the floor suddenly caved in, thereby opening the hole, through which, the girl had fallen down. However, both the above stands are falsified for the simple reason that there was an irregular gaping hole on the floor of the bus in between two seats which is a telltale sign that the hole was in existence for quite some time prior to the tragedy. 37. The perusal of the photographs available in the case dairy would show a hole big enough for a 7 years old child to fall through. This court can also notice the difference in the discolouring on the surface of the existing floor and the edges of the hole, which shows that portion of the hole was covered by a plank or wooden log, as a temporary measure, which has moved from its place due to the movement of the bus and thereby the child has fallen through the hole. 38. This piece of evidence is supported by the statement of the witnesses, who are the parents of the two students, who were also travelling in the same bus. According to their statements, their wards brought to their notice about the hole and in turn, the parents have verified the fact and complained to the driver and cleaner and to the owner, in particular, on 18.7.2012. Therefore, both the petitioners cannot plead ignorance about the presence of the hole on the floor of the bus. According to their statements, their wards brought to their notice about the hole and in turn, the parents have verified the fact and complained to the driver and cleaner and to the owner, in particular, on 18.7.2012. Therefore, both the petitioners cannot plead ignorance about the presence of the hole on the floor of the bus. Such a knowledge cannot be ignored and they cannot plead that they have no knowledge about the presence of the hole. 39. Coming to the nature and the gravity of the offence and severity of the punishment, the contention of the petitioners is that it is an unfortunate incident, which attract rash and negligent act, contemplated under Sec.304(A) IPC and it will never be such a grave offence covered under Sec.304(ii) IPC. 40. The learned Senior counsel who appeared for the owner relied on the cases reported in i) 1969 L.W (Crl.) 158 (Public Prosecutor vs Pitchaiah Moopanar alias Pitchaiah Pillai) and ii) AIR 1972 SC 1150 (A.D. Bhatt vs State of Gujarat) for the principle of causa causans. According to the learned Senior counsel, the petitioner is not immediate cause for the incident. 41. However, I am not convinced with such contention for two reasons. (i) Being the owner of the vehicle, his main responsibility is to maintain the vehicle and see that the passengers, who are the school children, are not exposed to any danger; (ii) even though it has been brought to his knowledge about the gaping hole, he allowed the hole to remain there, and such an act is likely to cause death or bodily injury, which has been subsequently proved by the tragic incident. 42. As far as the other petitioner, who is the Motor Vehicle Inspector is concerned, it is a blatant lie to state that he has not noticed any hole on the floor of the bus. Either having seen such a hole covered by a plank he ignored it or he had never inspected the bus before issuing fitness certificate. Such an act will amount to having knowledge, which is likely to cause death or bodily injury to any of the passengers travelling in the bus. 43. In a recent decision reported in 2012 2 SCC 648 (Alister Anthony Pareira vs State of Maharashtra), the Apex Court had an occasion to deal with the offences punishable under Sec.304(ii) and 304(A) of IPC. 43. In a recent decision reported in 2012 2 SCC 648 (Alister Anthony Pareira vs State of Maharashtra), the Apex Court had an occasion to deal with the offences punishable under Sec.304(ii) and 304(A) of IPC. In paragraph-47, the Apex Court held as follows: "47.) each case obviously has to be decided on its own fact. In a case where negligence or rashness is the cause of death and nothing more, sec.304-A may be attracted, but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section.304 Part II IPC may be attracted and if such a rash and negligent act is preceeded by real intention on the part of the wrongdoer to cause death, offence may be punihable under Sec.302 IPC.” 44. Therefore, I am satisfied that the nature of the accusation, the gravity of the offence and the severity of the punishment in the present case fall under Sec.304(ii) IPC, as the petitioners were negligent, proceeded with the knowledge that such act is likely to cause death. 45. As far as the other considerations are concerned, no doubt, the petitioners are man of means and influential and there is a reasonable apprehension that they may tamper with the witnesses, if they are released on bail, though they may not flee from justice. 46. Looking at the gravity of the offence, where an innocent, 7 years old child has lost her life, for no fault of her, then who is to be faulted? In my considered view, each and every one, who had the knowledge about the death trap, in the form of a hole on the floor of the bus, is to be faulted. We do not know what was in her mind when she was happily returning to her home after school. Her dreams were bursted as bubbles along with the dreams of her parents. The fellow students, who had watched the horrifying incident, would not have even recovered from the shock and trauma and so also the general public who witnessed the pathetic incident. When such is the gravity of the offence, can the petitioners plead innocence? The answer will be "No". 47. Under such circumstances, I am of the considered view that the petitioners are not entitled for any relief at this stage. 48. When such is the gravity of the offence, can the petitioners plead innocence? The answer will be "No". 47. Under such circumstances, I am of the considered view that the petitioners are not entitled for any relief at this stage. 48. For the above said reasons, I am not inclined to enlarge the petitioners on bail. However, in the event of trial in this matter, the trial court shall not be influenced with the observations made in this order. 49. In the result, (i) the petition in Crl.O.P.No.18406 of 2012 is dismissed. (ii) the petition in Crl.O.P.No.18451 of 2012 is dismissed.