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2017 DIGILAW 921 (ORI)

Manoj Ranjan Nayak v. State of Orissa

2017-08-22

B.K.NAYAK

body2017
JUDGMENT B.K.NAYAK, J. - In this application under Section 482, Cr.P.C., the petitioners pray to quash the FIR in Khandagiri P.S.Case No.518 dated 18.10.2016. 2. The petitioners claim to be trustees of the Siksha ‘O’ Anusandhan Trust, which runs a hospital by the name ‘SUM Hospital”, and that the Trust has constituted a Management Committee to look after the day to day business and management of the said hospital. It is further claimed by the petitioners that they are not members of that Management Committee of the said Hospital. 3. The allegations in the FIR No.0518 lodged on 18.10.2016 by the Fire Officer, Central Range, Cuttack are that in the night of 17.10.2016 an unfortunate incident of fire at the ICU of SUM Hospital, Bhubaneswar took place because of which twenty-two people died, apart from huge loss of property of the hospital. It is alleged that at 19.32 hours on 17.10.2016 a message was received at Fire Control Room, Bhubaneswar regarding outbreak of fire at Sum Hospital, Bhubaneswar. On receipt of the message, the AFO, Bhubaneswar Fire Station directed the OIC, Secretariat Fire Service to attend the fire call, whereupon two Fire Fighting Units and a Sky Lift of Bhubaneswar Fire Station along with three Fire Fighting Units of OFDRA, Barmunda, Bhubaneswar rushed to the spot. On arrival at the Hospital it was found that there was fire on the first floor of the hospital building. Immediately fire fighting and rescue operation was started. The ICU and Dialysis Wards were under the impact of fire and filled with dense smoke for which the Fire Fighters had to use breathing apparatus sets for evacuating patients. A large number of patients of the ICU and Dialysis ward were mostly affected and they were evacuated after breaking window glasses. The rescued patients were rushed to different hospitals by available ambulances. The fire was doused and rescue operations completed at about 22.00 hours on 17.10.2016. The further allegations in the FIR are that on preliminary investigation it was ascertained that the fire occurred in the store room situated in between the Dialysis Ward and the ICU due to short-circuit. Due to intensity of the flames the A.C. Duct over the store room got burnt and sucked dense smoke into the air-conditioning system which then spread to other areas like ICU and Dialysis Ward and adjoining rooms through the A.C. vents. Due to intensity of the flames the A.C. Duct over the store room got burnt and sucked dense smoke into the air-conditioning system which then spread to other areas like ICU and Dialysis Ward and adjoining rooms through the A.C. vents. Subsequently it was learnt that 20 people affected by the fire incident succumbed in different hospitals. The further allegation is that the fire audit of the hospital had been conducted in 2013 and the shortcomings noticed during the audit had been intimated to the Hospital Authority for necessary compliance in order to ensure safety of life and property before issue of a fire safety certificate. The hospital authorities did not comply with the fire safety recommendations for which the fire tragedy on 17.10.2016 occurred due to negligence on the part of the hospital authorities. On the basis of the allegations in the FIR the case has been registered under Sections 304/308/285/34,.IPC. 4. The learned Senior Counsel for the petitioners contended that having regard to the allegations made in the FIR to the effect that the fire tragedy and the consequential loss of life and property in the hospital occurred due to negligence of the hospital authorities, the FIR could not have been registered under Section 304, IPC, which prescribes punishment for culpable homicide, and instead the FIR should have been registered under Section 304-A of the IPC. It is submitted that the entire allegations in the FIR only speaks of the negligent conduct of the hospital authorities in not adhering to some fire safely measures and there being no allegation of intention of the hospital authorities to cause death or bodily injury to anyone by doing some act which is likely to cause death, the necessary ingredient of the offence of culpable homicide is lacking. Therefore, the registration of the FIR for an offence punishable under Section 304, IPC and investigation on that basis is illegal and liable to be quashed. 5. Learned Additional Standing Counsel, on the other hand, submits that since there is allegation that the hospital authorities did not put in place required fire safety measures, as a result of which death of some patients occurred due to fire incident, there is nothing wrong in registering the FIR under Section 304, IPC. 6. Section 304, IPC provides the punishment for offence whereas Section 299, IPC defines the offence of culpable homicide. 6. Section 304, IPC provides the punishment for offence whereas Section 299, IPC defines the offence of culpable homicide. Section 304, IPC runs as under : “304. Punishment for culpable homicide not amounting to murder. – Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 7. Section 299, IPC runs as under :- “299. Culpable homicide. – Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” 8. Section 304-A, IPC provides for punishment for death caused due to negligence. It runs as under :- “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.” 9. In the case of Shantibhai J. Vaghela and another v. State of Gujarat and others : (2012) 13 SCC 231 investigation on FIR registered under Section 304, IPC was quashed by the High Court on the basis of allegations of death occurring due to negligence on the part of the accused. Upholding the decision of the High Court, the Hon’ble Supreme Court held as follows : 24. Section 299 IPC defines culpable homicide as causing of death by doing an act with the intention of causing of death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that by such act death is likely to be caused. Section 299 IPC defines culpable homicide as causing of death by doing an act with the intention of causing of death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that by such act death is likely to be caused. Under Section 300, IPC all acts of culpable homicide amount to murder except what is specifically covered by the exceptions to the said Section 300. Section 304 of the Penal Code provides for punishment for the offence of culpable homicide not amounting to murder. 25. Commission of the offence of culpable homicide would require some positive act on the part of the accused as distinguished from silence, inaction or a mere lapse. Allegations of not carrying out a prompt search of the missing children; of delay in the lodging of formal complaint with the police and failure to take adequate measures to guard the access from the ashram to the river, which are the principal allegations made in the FIR, cannot make out a case of culpable homicide not amounting to murder punishable under Section 304, IPC. To attract the ingredients of the said offence something more positive than a mere omission, lapse or negligence on the part of the named accused will have to be present. Such statements are conspicuously absent in the FIR filed in the present case. 27. Taking into account all the aforesaid facts it cannot be said that the High Court, in the present case, had committed any error in exercising its jurisdiction to interdict the investigation of the offence under Section 304, IPC against the accused named in the FIR. Such power, though must be exercised sparingly, has to be invoked if the facts of any given case so demand. This is precisely what the High Court has done in the present case without departing from any of the well-settled principles of law emanating from the long line of decisions of this Court noticed in Asmathunnisa v. State of A.P.: 10. Holding as aforesaid, the Hon’ble Supreme Court in the said case went to add further in paragraph 28 of the judgment as follows :- “28. Holding as aforesaid, the Hon’ble Supreme Court in the said case went to add further in paragraph 28 of the judgment as follows :- “28. Our above view, naturally, has to be understood to be confined to the present stage of the proceedings and without any way impairing the powers of the Trial Court under Section 216 or Section 323 of the Code of Criminal Procedure. In fact we reiterate as held by this Court in CBI v. Keshub Mahindra that the powers under the aforesaid provisions of the Code will always be available for exercise if subsequent facts would justify resort to either of the provisions.” 11. The learned Additional Standing Counsel relied upon the decisions of the Hon’ble Apex Court reported in (2013) 10 SCC 591 : Umesh Kumar v. State of Andhra Pradesh and another, AIR (1991) SC 1260: State of Bihar and another v. P.P.Sharma and another and AIR (2004) SC 1189: State of Maharashtra v. Salman Salim Khan. 12. The decisions in the case of Umesh Kumar and in the case of State of Maharashtra v.Salman Salim Khan (supra) deal with alteration of charges. The decision in the case of State of Maharashtra v. Salman Salim held that where charge-sheet is filed under Section 304-A, IPC in a hit and run case depending on the evidence before it, the Trial Court can alter charge subsequently to one under Section 304, Part-II, IPC. In the case of State of Bihar and another v. P.P. Sharma (supra) it was held that in a proceeding under Article, 226 of the Constitution High Court cannot quash a criminal proceeding treating the affidavits and other annexures as documents of evidence. None of the aforesaid cases dealt with the registration of the FIR and consequential investigation thereon. Therefore, the decisions cited by the learned Additional Standing Counsel have no application to the facts of the present case. 13. The facts of the instant case are almost akin to the facts of the case in Shantibhai (supra) with respect to the allegations of negligence on the part of the hospital management in the matter of providing adequate fire safety measures, that ultimately resulted in the death of some persons due to the fire accident caused by electrical short-circuit. 13. The facts of the instant case are almost akin to the facts of the case in Shantibhai (supra) with respect to the allegations of negligence on the part of the hospital management in the matter of providing adequate fire safety measures, that ultimately resulted in the death of some persons due to the fire accident caused by electrical short-circuit. In the FIR there is no allegation of commission of any positive act on the part of the hospital management as distinguished from silence, inaction or a mere lapse or failure to provide adequate fire safety measures which is the principal allegation in the FIR. As such prima facie it cannot make out a case of culpable homicide not amounting to murder punishable under Section 304, IPC. In the aforesaid circumstances, registration of the FIR in the present case for the offence under Section 304, IPC and not for offence under Section 304-A, IPC is unsustainable, and, therefore, this Court strikes off Section 304, IPC from the FIR and directs for registration of offence punishable under Section 304-A, IPC in its place and continue with investigation accordingly. 14. This direction however should not be understood to mean that the power of the Investigating Officer to submit charge-sheet under Section 304, IPC, in case during investigation sufficient materials and evidence are gathered making out prima-facie a case of culpable homicide not amounting to murder, and also the power of the Court under Section 216 or Section 323 of the Code of Criminal Procedure is curtailed. The CRLMC is accordingly disposed of. CRLMC disposed of.