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2018 DIGILAW 4576 (MAD)

Sasikumari v. State, Inspector of Police

2018-12-20

N.ANAND VENKATESH

body2018
ORDER : Prayer: Criminal Original petition filed under Section 482 of Code of Criminal Procedure, to call for the records in the proceedings bearing CC No.7580 of 2017 on the file of the IX Metropolitan Magistrate Court, Saidapet, Chennai. This petition has been filed seeking to quash the proceedings in CC No.7580 of 2017, pending on the file of the IX Metropolitan Magistrate Court, Saidapet, Chennai. 2. The case of the prosecution is that on 13.04.2015 at about 12.40 pm, school children studying in 8th standard were playing near the compound wall situated at the rear side of the building. They were swinging on a iron string plugged to the wall of the school compound. Unfortunately, the wall collapsed and fell on a few students and two of the students died in the incident and one of the student sustained grievous injuries in her right leg. 3. Based on the complaint given by the mother of one of the victims, the respondent police registered an FIR in Crime No.833 of 2015 against the Management of the school for an offence under section 288, 338 and 304(A) of IPC. In the course of investigation, the respondent police took statements from 21 witnesses and ultimately, filed a final report for the above said offence and the same was taken on file by the Court below. In the final report, these petitioners have been shown as accused persons. 1st petitioner is the Head Mistress of the School and the 2nd petitioner is the Physical Education Teacher. 4. The learned Senior counsel appearing on behalf of the learned counsel for the petitioner would submit that the respondent police have proceeded to add the 1st petitioner as an accused only on the ground that she knew about the dilapidated condition of the wall and did not take any steps to repair the same and as a result of her negligence, the unfortunate incident had taken place. Insofar as the 2nd petitioner is concerned, she has been added as an accused on the ground that as a physical training teacher, she should have closely monitored the students who were playing near the dilapidated wall and because of her dereliction in duty, the unfortunate incident had happened. 5. Insofar as the 2nd petitioner is concerned, she has been added as an accused on the ground that as a physical training teacher, she should have closely monitored the students who were playing near the dilapidated wall and because of her dereliction in duty, the unfortunate incident had happened. 5. The learned Senior Counsel would submit that the entire reading of the final report along with the statements given by the witnesses, do not make out any offence under Section 288 or under Section 338 of IPC. The learned Senior Counsel would submit that Section 288 of IPC will come into play only where there is a negligent conduct with respect to pulling down or repairing buildings and in the facts of the present case, the said provision is not attracted. The learned senior counsel also submitted that in order to constitute an offence under Section 338 of IPC, a positive act must have been committed by the petitioners and thereby, should have caused grievous hurt to any person or endangered the human life and the personal safety of persons. In the instant case, the petitioners have not committed any act in relation to the incident in question, even as per the case of the prosecution. 6. The learned senior counsel would further submit that the facts of this case will not attract the offence under Section 304(A) of IPC. The learned counsel would submit that in order to constitute an offence of causing death by negligence, it is necessary that the death should have been the direct result of a rash and negligence act of the accused. No such act has been committed by the petitioners and therefore, the final report filed for an offence under Section 304(A) of IPC also cannot be sustained. 7. The learned senior counsel for the petitioner would further submit that the criminal negligence alleged by the prosecution will not even attract the principle of “res ipsa loquitur”. The learned senior counsel in order to substantiate his submissions placed reliance on the following judgments :- i. AIR 2005 SC 3180 [Jacob Mathew Vs. State of Punjab and another] ii (2005) 6 SCC 525 [ Ambalal Bhat Vs. State of Gujarat] iii. AIR 1965 SC 1616 [ Kurban Hussein Mohamedalli Rangawalla Vs. State of Maharashtra] iv. AIR 1970 Mad 198 [Public Prosecutor Vs. State of Punjab and another] ii (2005) 6 SCC 525 [ Ambalal Bhat Vs. State of Gujarat] iii. AIR 1965 SC 1616 [ Kurban Hussein Mohamedalli Rangawalla Vs. State of Maharashtra] iv. AIR 1970 Mad 198 [Public Prosecutor Vs. Pitchaiah Moopanar alias Pitchaian Pillai] v. 1980 1 SCC 30 [Syad Akbar Vs. State of Karnataka] 8. Per contra, the learned Additional Public Prosecutor appearing on behalf of the respondent police would submit that the unfortunate incident happened only due to criminal negligence on the part of the petitioners. The 1st petitioner as the Head Mistress must have ensured that the building was maintained properly and due to her negligence, a wall which was in a dilapidated condition, unfortunately fell on the children playing near it and caused the death of two young girls. The learned Additional Public Prosecutor also submitted that the 2nd petitioner as the Physical Education Teacher, must have ensured that the children do not go near the dilapidated wall and should have monitored the movement of the children. 9. The learned Additional Public Prosecutor further submitted that this Court should not interfere with the proceedings at this stage and the grounds taken by the petitioners should be agitated only before the Court below in the course of trial. 10. This Court has carefully considered the submissions made on either side. 11. It is true that an unfortunate incident has taken away the lives of two young girls studying in 8th Standard and also resulted in grievous injuries in the right leg to another girl. What needs to be seen is whether the allegations made in the final report and the statements given by the witnesses, prima facie constitutes an offence under Section 288, 338 and 304 (A) of IPC. 12. The entire case of the prosecution is that the 1st petitioner as the Head Mistress knew about the fact that the wall is in a dilapidated condition and should have taken necessary steps to repair and maintain the same and due to her negligence, the unfortunate incident has taken away the lives of two children. Insofar as the 2nd petitioner is concerned, the case of the prosecution is that as a Physical Education Teacher, she should have closely monitored the movements of the Children and should not have permitted the children to play near the dilapidated wall and due to her negligence, the unfortunate incident has happened. Insofar as the 2nd petitioner is concerned, the case of the prosecution is that as a Physical Education Teacher, she should have closely monitored the movements of the Children and should not have permitted the children to play near the dilapidated wall and due to her negligence, the unfortunate incident has happened. 13. Admittedly, the school in question, namely Avvai Homes Primary School and TVR Girls Higher Secondary School is a Government aided School for the poor children coming from the lower strata of the society. There is absolutely no material or any statement given by any of the witnesses, which shows that the 1st petitioner as the Head Mistress should maintain the building. Only if some prima facie material to that effect is shown by the prosecution, the 1st petitioner can be roped in for the alleged negligence. 14. Likewise, the negligence on the part of the 2nd petitioner as the Physical Education Teacher is not the “causa causans” for the unfortunate incident. Not every negligence can be categorized as a criminal negligence. 15. The fact of the case do not attract the provisions of Section 288 of IPC since that is a provision which deals with pulling down of a building or a part thereof or repairing the building and in the process of doing so, an accident occurs due to the negligence of a person. The case projected by the prosecution does not make out an offence under Section 288 of IPC. 16. Insofar as the Sections 338 and 304(A) of IPC, both these provisions contemplate “an act” to be performed by an individual, which is rash and negligent in nature. In this case, there is no such act done by the petitioners. It will be relevant to rely upon the Judgments cited by the learned senior counsel in this regard : i. AIR 2005 SC 3180 [Jacob Mathew Vs. State of Punjab and another] Negligence - as a tort and as a crime 12. The term “negligence” is used for the purpose of fastening the defendant with liability under the civil law and, at times, under the criminal law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The term “negligence” is used for the purpose of fastening the defendant with liability under the civil law and, at times, under the criminal law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence up to the modern times. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In R. v. Lawrence [(1981) 1 All ER 974 : 1982 AC 510 : (1981) 2 WLR 524 (HL)] Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell [(1981) 1 All ER 961 : 1982 AC 341 : (1981) 2 WLR 509 (HL)] and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being “subjective” or “objective”, and said: (All ER p. 982e-f) “Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it.” 13. The moral culpability of recklessness is not located in a desire to cause harm. It resides in the proximity of the reckless state of mind to the state of mind present when there is an intention to cause harm. There is, in other words, a disregard for the possible consequences. The consequences entailed in the risk may not be wanted, and indeed the actor may hope that they do not occur, but this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation, called optimising violations, may be motivated by thrill-seeking. These are clearly reckless. 14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions [1937 AC 576 : (1937) 2 All ER 552 (HL)] stated: (All ER p. 556 C) “Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established.” Thus, a clear distinction exists between “simple lack of care” incurring civil liability and “very high degree of negligence” which is required in criminal cases. In Riddell v. Reid[(1942) 2 All ER 161 : 1943 AC 1 (HL)] (AC at p. 31) Lord Porter said in his speech - “A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability.” (Charlesworth & Percy, ibid., para 1.13) 17. In Riddell v. Reid[(1942) 2 All ER 161 : 1943 AC 1 (HL)] (AC at p. 31) Lord Porter said in his speech - “A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability.” (Charlesworth & Percy, ibid., para 1.13) 17. In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree. ii (2005) 6 SCC 525 [Ambalal Bhat Vs. State of Gujarat] 10. It appears to us that in a prosecution for an offence under Section 304-A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. If that were so, the acquittal of the appellant for contravention of the provisions of the Act and the Rules would itself have been an answer and we would have then examined to what extent additional evidence of his acquittal would have to be allowed, but since that is not the criteria, we have to determine whether the appellant’s act in giving only one batch number to all the four lots manufactured on November 12, 1962, in preparing Batch No. 211105, was the cause of deaths and whether those deaths were a direct consequence of the appellants’ act, that is, whether the appellants’ act is the direct result of a rash and negligent act and that act was the proximate and efficient cause without the intervention of another’s negligence. As observed by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap[(1902) 4 Bom LR 679] the act causing the deaths “must be the causa causans; it is not enough that it may have been the cause sine qua non”. This view has been adopted by this Court in several decisions. As observed by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap[(1902) 4 Bom LR 679] the act causing the deaths “must be the causa causans; it is not enough that it may have been the cause sine qua non”. This view has been adopted by this Court in several decisions. In Kurban Hussein Mohammedali Rangwala v. State of Maharashtra [ (1965) 2 SCR 622 ] the accused who had manufactured wet paints without a licence was acquitted of the charge under Section 304-A because it was held that the mere fact that he allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it would be a negligent act, would not be enough to make the accused responsible for the fire which broke out. The cause of the fire was not merely the presence of the burners within the room in which varnish and turpentine were stored, though this circumstance was indirectly responsible for the fire which broke out, but was also due to the overflowing of froth out of the barrels. In Suleman Rehiman Mulani v. State of Maharashtra [ (1968) 2 SCR 515 ] the accused who was driving a car only with a learner’s licence without a trainer by his side, had injured a person. It was held that that by itself was not sufficient to warrant a conviction under Section 304-A. It would be different if it can be established as in the case of Bhalchandra alias Bapu v. State of Maharashtra [ (1968) 3 SCR 766 ] that deaths and injuries caused by the contravention of a prohibition in respect of the substances which are highly dangerous as in the case of explosives in a cracker factory which are considered to be of a highly hazardous and dangerous nature having sensitive composition where even friction or percussion could cause an explosion, that contravention would be the causa causans. iii. AIR 1965 SC 1616 [Kurban Hussein Mohamedalli Rangawalla Vs. State of Maharashtra] 3. iii. AIR 1965 SC 1616 [Kurban Hussein Mohamedalli Rangawalla Vs. State of Maharashtra] 3. We may in this connection refer to Emperor v. Omkar Rampratap [(1902) IV Bom LR 679] where Sir Lawrence Jenkins had to interpret Section 304-A and observed as follows: “To impose criminal liability under Section 304-A Indian Penal Code, it is necessary that the death should have been the direct result of a 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 cause causans; it is not enough that it may have been the cause sine qua non.” 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 Section 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 Section 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 proxinate and efficient cause without the intervention of another’s negligence. The appellant must therefore be acquitted of the offence under Section 304-A. iv. AIR 1970 Mad 198 [Public Prosecutor Vs. Pitchaiah Moopanar alias Pitchaian Pillai] 9. There cannot be any doubt that the building collapsed as a result of which, unfortunately 35 school children died and several others were injured. The main question is whether the collapse of the building was due to the rash or negligent act of the respondent. The learned Public Prosecutor reiterated the same points urged on behalf of the prosecution before the appellate Court, but stressed before me that the act of the respondent in not having attended to immediate repairs by taking technical advice after having come to know that it required such repairs should be held to be a rash and negligent act on his part. He relied upon the evidence of P.W. 208 Paramanandam, the carpenter. P.W. 208 stated that a few months before the collapse of the school building the respondent sent for him to inspect the beams of the building. He found one beam of the ground floor and one beam of the first floor bent. 10. It is not the case of the prosecution that the respondent himself constructed the building. It is not disputed that he sought the assistance of the masons and the masons constructed the building. If the masons had not done the work properly and if they had been negligent in not mixing the lime mortar in proper proportions, the respondent could not be made liable for the negligence of those persons who actually constructed the building, who are supposed to be skilled. The respondent is a layman. He, therefore, cannot be held liable for the negligence of the persons who actually constructed the building which negligence is the causa causans for the collapse of the building. 17. It is clear from the above judgments that the death “must be the causa casusans; it is not enough it may have been the cause sine qua non”. To fasten liability in criminal law, the decree of negligence has to be higher. There must at least be recklessness or total disregard for the possible consequences. Simple lack of care, howsoever bad the consequences are, will not constitute criminal negligence. 18. It will also be relevant to rely upon the Judgment reported in 1980 1 SCC 30 [Syad Akbar Vs. State of Karnataka] in order to see whether the facts of the case will constitute criminal negligence on the principle of ‘res ipsa loquitur’. The relevant portions of the Judgment is extracted hereunder : 10. Thus, two questions arise for consideration; First whether the courts below were right in discarding entirely the evidence of the said eye-witnesses merely on the ground that they were treated as hostile by 101 the prosecution and cross-examined. Second, whether the principle of res ipsa loquitur is applicable in criminal proceedings. If so, could it be invoked in the circumstances of the case in favour of the prosecution to presume rashness and negligence on the part of the accused ? 14. Second, whether the principle of res ipsa loquitur is applicable in criminal proceedings. If so, could it be invoked in the circumstances of the case in favour of the prosecution to presume rashness and negligence on the part of the accused ? 14. Coming to the second question, it may be observed that res ipsa loquitur (thing speaks for itself) is a principle which, in reality, belongs to the law of torts. 15. The jurisprudential status and functional utility of res ipsa loquitur have been the subject of much debate. In Ballard v North British Railway Co.,(1) Lord Shaw said, nobody would have called it a principle if it had not been in Latin. While warning against the tendency to magnify this expression into a rule of substantive law, the Noble Lord conceded that thus Latin phrase “simply has place in that scheme of, and search for, causation upon which the mind sets itself working”. In the same case, Lord Dunedan emphasised: “It is not safe to take the remarks which have been made as to the principle of res ipsa loquitur in one class of cases and apply them indiscriminately to another class”. 16. No less an authority than the authors of “Salmond on the Law of Torts”, (15th Edn. by R.F. Houston, p. 310) have suggested not to treat this maxim as a special rule of evidence. This is what they say: “Much of the confusion is due to a failure to appreciate that cases where res ipsa loquitur applies may vary enormously in the strength, significance and cogency of the res proved..... Looked at in this light, it is not easy to see why the maxim should be treated as a special part of the law of evidence.” 17. Lord Dunedan, in Ballard’s case, (supra) thought it no more a rule of evidence than a means of shifting the onus to prove negligence. Lord Atkin in Mc Gowan v. Stott(2) treated it as equivalent to a statement that on the facts in evidence the plaintiff has satisfied the burden of proof enough to shift it on to the defendant. 18. Lord Atkin in Mc Gowan v. Stott(2) treated it as equivalent to a statement that on the facts in evidence the plaintiff has satisfied the burden of proof enough to shift it on to the defendant. 18. John G. Fleming (in his ‘Law of Torts’, 5th Edn., page 302) thinks it as “no more than a convenient label to describe situations where, notwithstanding the plaintiff’s inability to establish the exact cause of the accident, the fact of the accident by itself is sufficient, in 103 the absence of an explanation, to justify the conclusion that most probably the defendant was negligent and that his negligence caused the injury”. 19. As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. To emphasise the point, it may be reiterated, that in such cases, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. But, according to some decisions, satisfaction of this condition alone is not sufficient for res ipsa to come into play and it has to be further satisfied that the event which caused the accident was within the defendant’s control. The reason for this second requirement is that where the defendant has control of the thing caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Instances of such special kind of accidents which “tell their own story” of being off-springs of negligence, are furnished by cases, such as where a motor vehicle mounts or projects over a pavement and hurts somebody there or travelling in the vehicle; one car ramming another from behind, or even a head-on-collision on the wrong side of the road. See per Lord Normand in Barkway v. South Wales Transport Co.(1); Cream v. Smith(2) and Richlev v. Fanll(3). 20. See per Lord Normand in Barkway v. South Wales Transport Co.(1); Cream v. Smith(2) and Richlev v. Fanll(3). 20. Thus, for the application of the maxim res ipsa loquitur “no less important a requirement is that the res must not only be speak negligence, but pin it on the defendant.” 19. From the above judgment, it is clear that even to apply the principles of ‘res ipsa loquitur’, the peculiar circumstances constituting the event or accident, must by itself proclaim in clear and unambiguous voices that the accident or the event happened only due to the negligence of the accused persons. In other words, in such case, the event or the accident must be of a kind which does not happen in the ordinary course of things, if those who have the management and control use due care. 20. The facts of the present case does not satisfy the above principles also. There is no material to show that the 1st petitioner was assigned the task of maintaining the building. 21. The school is admittedly a Government aided School. The maintenance of the School cannot be assumed to be within the job description of the 1st petitioner, and therefore the blame should not be put on the 1st petitioner. Insofar as the 2nd petitioner is concerned, as a Physical Education Teacher, if things happened beyond her control, she cannot be made responsible for the same. It is true that an unfortunate accident has taken away the lives of two young girls. However, this Court is not able to find any prima facie material to make the petitioners responsible for the said accident. 22. The continuance of the proceedings against the petitioners will be a futile exercise since there are no materials to constitute an offence under Section 288, 338, 304 (A) of IPC. Therefore, in order to secure the ends of justice, this Court has to necessarily interfere with the proceedings, in exercise of its jurisdiction under Section 482 of Cr.P.C. 23. In the result, the proceedings in CC No.7580 of 2017 on the file of IX Metropolitan Magistrate Court, Saidapet, Chennai is hereby quashed and accordingly, this Criminal Original petition is allowed. Consequently, the connected miscellaneous petitions are closed.