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2012 DIGILAW 457 (JHR)

Chandrashekhar v. State of Jharkhand

2012-03-27

R.R.PRASAD

body2012
Order Heard learned counsel appearing for the petitioners and learned counsel for the State. 2. This application has been filed for quashing of the entire criminal proceeding arising out of Jogta P.S. Case No. 80 of 2005 (G.R. No. 3698 of 2005) including the order dated 5.10.2006, whereby and where under the then learned Chief Judicial Magistrate, Dhanbad, took cognizance of the offences punishable under Sections 287, 304-A of the Indian Penal Code against the' petitioners-officers of Tata Steel who at the relevant point of time were posted at Sijua Colliery. 3. The facts giving rise to this application are that on 8.9.2005, one labourer, Jiten Turi while had gone to attend call of nature towards loading line, one tub came rolling down and hit said Jitendra Turi causing injuries, ,resulting into his death. 4. On such allegation, the case was registered as Jogta P.S. Case No. 80 of 2005, under Sections 287, 304 of the Indian Penal Code. Upon submission of the charge-sheet, cognizance of the offences was taken vide the impugned order which is under challenge. 5. Learned counsel appearing for the petitioners submits that the petitioners have never been alleged to have done any act rashly as a result of which accident took place. In spite of that cognizance of the offences punishable under Sections 287 and 304-A of the Indian Penal Code has been taken against the petitioners which is quite illegal and is fit to be set aside. 6. Learned counsel appearing for the petitioners further submits that though there has been no allegation of rash and negligent act on the part of the petitioners still the petitioners are being prosecuted presumably under the theory of vicarious liability which principle is not applicable in case of offence under the Penal Code and hence, in absence of any rash and negligent act on the part of the petitioners, the petitioners cannot be held liable and thereby cognizance taken for the offences punishable under Sections 287, 304-A of the Indian Penal Code is fit to be set aside. 7. The question does not arise as to whether in the facts of the case any offence is made either under Sections 287 or 304-A of the Indian Penal Code against the petitioners. 8. Section 287 of the Indian Penal Code reads as follows:- 287. 7. The question does not arise as to whether in the facts of the case any offence is made either under Sections 287 or 304-A of the Indian Penal Code against the petitioners. 8. Section 287 of the Indian Penal Code reads as follows:- 287. Negligent conduct with respect to machinery.-Whoever does, with any machinery, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any machinery in his possession or under his care as is sufficient to guard against any probable danger to human life from such machinery, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. 9. From the perusal of the aforesaid provision, it does appear that whosoever does any act so rashly that it endangers human life or likely to cause hurt or injury, he can be held liable for the offence under Section 287 of the I.P.C. At the same time, the person can also be held guilty under the provision of this Section when one negligently omits to take such order to guard against probable danger from the said machinery. 10. Here in the instant case, it is never - the case of the prosecution that the petitioners did not act so rashly that a tub came rolling down causing injury resulting into death. At the same time, it has also not been alleged against the petitioners that they negligently omitted to take such order to prevent the tub from rolling down and as such, the offence under Section 287 under the Indian Penal Code never gets attracted so far these petitioners are concerned. 11. Further, Section 304-A of the Indian Penal Code reads as follows:- [304-A. Causing death by negligence.-Whoever causes the death of any person by doing any rash or 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.] 12. Here also whosoever causes the death by doing any rash or negligent act can be prosecuted for an offence under Section 304-A of the I.P.C. 13. Here also whosoever causes the death by doing any rash or negligent act can be prosecuted for an offence under Section 304-A of the I.P.C. 13. Again it be recorded that there has been absolutely no allegation against the petitioners that it is on account of rash and negligent act of the petitioners, the tub came rolling down hitting the deceased causing his death. 14. Thus, the offence under Section 304-A also does not get attracted, so far these petitioners are concerned. 15. It be recorded that the provision of the I.P.C. except in some cases specifically providing thereof never stipulates about the prosecution of a person on the principles of vicarious liability and hence, one cannot be prosecuted in absence of any specific allegation constituting offence under the Indian Penal Code. 16. Since the allegation never seems to be there against the petitioners constituting offence either under Sections 287 or 304-A of the Indian Penal Code, order taking cognizance is quite bad. 17. Accordingly, the entire criminal prosecution of Jogta P.S. Case No. 80 of 2005, corresponding to G.R. No.3698 of 2005, including the order dated 5.10.2006, pending in the court of learned Judicial Magistrate, Dhanbad is hereby, quashed. 18. In the result, this application stands allowed.