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Gujarat High Court · body

2020 DIGILAW 49 (GUJ)

Jigish Devendra Upadhyaya v. State of Gujarat

2020-01-10

A.C.RAO

body2020
JUDGMENT : A.C. RAO, J. 1. This writ petition filed by the petitioners under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) with the prayer to quash and set aside the complaint registered against them with Petlad Town Police Station being FIR No. I-C.R. No. 10 of 2015 for the offence under Section 304A of the Indian Penal Code. 2. The petitioner no. 1 is a Deputy Engineer whereas petitioner no. 2 is Electric Assistant working with the MGVCL (Madhya Gujarat Vij Company Ltd.). 3. The case as per the complaint is that on 21.01.2015, at about 11:30 hrs. when the complainant and his brother Samsuddin (deceased) along with other relatives were going in auto rickshaw bearing registration No. GJ-23U-9487 reached near Rangaipur, one live electric wire was lying on the road. The said wire came into contact with number plate of autorickshaw which caused fire on its front wheel. On account of this incident, brother of the complainant viz. Samsuddin sustained severe electrocution. The surrounding public gathered there and with the help of fire-brigade and the police they took the brother of the complainant to the hospital where he was declared dead. Thus, the complainant has filed the complainant against the present petitioners alleging the lethargic, negligent and rashness approach of the petitioners keeping such live wire open without any caution and as such the complaint is registered against the petitioners for offence under Section 304A of the Indian Penal Code. 4. Heard the learned advocates appearing for the parties. 5. The requirements of Sec. 304A IPC are that there must be a direct nexus between the death of a person and a rash and negligent act of the accused. A remote nexus is not enough. For the purpose of criminal law there are degrees of negligence and a very high degree of negligence is required to be proved before a charge can be sustained under this section and also Sections 337 and 338 of the IPC. A reasonable foresight is the criterion of negligence. In the case of negligence, the person accused does not do an act which he is bound to do. Mere negligence is not enough to bring a case within the ambit and scope of these sections. Negligence or rashness must be such as should carry with it a criminal liability. A reasonable foresight is the criterion of negligence. In the case of negligence, the person accused does not do an act which he is bound to do. Mere negligence is not enough to bring a case within the ambit and scope of these sections. Negligence or rashness must be such as should carry with it a criminal liability. Criminal rashness is hazarding a dangerous act with the knowledge that it is so and that it may cause an injury. There is a breach of a positive duty. 6. Section 304A of Indian Penal Code reads as under: “Sec.304A - 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.” 7. To constitute an offence under Sec. 304A, it is necessary for the prosecution to establish that the act of the accused is rash or negligent and by such act the death has occurred and that act does not amount to culpable homicide. The question therefore is whether in the facts and circumstances as on record, act of respondent can be said to be rash or negligent. 8. A rash act is primarily an overhasly act and is thus opposed to a deliberate act, but it also includes an act which, though it may be said to be deliberate, is yet done without due care and caution. Illegal omission is act under this Section and may constitute an offence if it is negligent. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the consciousness. It is clear, however, that if the words not amounting to culpable homicide are a part of the definition, the offence defined by this section consists of the rash or negligent act not falling under that category, as much as of its fulfilling the positive requirement of being the cause of death. In order to amount to criminal rashness or criminal negligence one must find that the rashness has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences. State of Gujarat vs. Maltiben Valjibhai Shah, 1993 (2) GLR 1600 . 9. The substance of Section 304A was explained by their Lordships of the Supreme Court in Suleman Rahiman's case, reported in AIR 1968 SC 829 (ibid) in the following words: “The requirements of this section are that the death of any person must have been caused by the accused doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of accused was the proximate cause of the death. In other words, there must be proof that the rash or negligent act of accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash or negligent act of the accused. As mentioned earlier there is no evidence to show that it was rash or negligent act of the accused that caused the death of the accused.” 10. The requirements of this section are not at all satisfied in this case. There is no evidence on the record to show that it was rash or negligent act of the applicants-accused that caused death of the deceased. It would be a pity if the Court were to give countenance to the argument that the charge is established because of the nature of the accident. Simple lack of care such as will constitute a civil liability is not enough to bring home guilt to an accused person under this section or Section 337. I am not considering a question of mere compensation in this case. That is a civil liability. 11. In Re Natrajan' AIR 1966 Mad 357 . It is stated therein: “.................whether a man is guilty of rash and negligent driving or not, is a question of fact, depending on the totality of the circumstances in the individual case. There could be no general presumption that the fact that a car leaves a road, is evidence of rash and negligent driving. A motor vehicle may leave the road, and proceed on the margin, or collide against some fixed structure of the margin under a variety of circumstances. Some of those circumstances certainly, may probabilise rash and negligent driving, but many other circumstances may not. There can be no burden on an accused to prove that he was not driving the vehicle in a rash and negligent manner, merely because the prosecution proves the fact that the car left the road. For instance, as is the case with regard to all mechanisms, there may be innumerable circumstances of defect not even within the knowledge of the driver of the vehicle. The road may be wet, slippery, or in some manner unsafe. The connection between the steering mechanism and the propelling mechanism in the car, might have been broken, or put out of gear, owing to a large variety of causes. The road may be wet, slippery, or in some manner unsafe. The connection between the steering mechanism and the propelling mechanism in the car, might have been broken, or put out of gear, owing to a large variety of causes. In such a situation, the driver himself may not know why the car suddenly behaved in that manner fraught with such danger to the driver himself and to the other occupants of the car. It is difficult to appreciate how the driver could establish or prove a fact, such as the disconnection of a particular mechanism, of which he himself might have been genuinely unaware.” 12. The interpretation of rashness and negligence fell for consideration before the Apex Court in the case of Ambalal Bhat vs. State of Gujarat, AIR 1972 SC 1150 . The Apex Court, while dealing with the applicability of Section 304A has held that the act causing the death “must be the causa causans.” 13. In a prosecution for an offence under Section 304A, the mere fact that an accused contravenes certain rules and regulations in the doing of an act which causes death of another, does not establish that the death was the result of rash and negligent act or that any such act was the proximate and efficient cause of the death. 14. It could thus be said that the rash and negligent act referred to in Section 304A means an act which is an immediate cause of death and not an act which can, at best be said to be a remote cause of death. No doubt the act of negligence would be to the rash and negligent manner as to endanger to human life or likely to cause harm or injury to a person where no harm was actually been caused. The requirement is that the death of any person must have been caused by the accused by any rash or negligent act. In other words, there must be cogent material to show that the rash or negligent act of the accused was the proximate cause of death. There must be a direct nexus between the death of the person and the rash and negligent act of the accused. 15. In other words, there must be cogent material to show that the rash or negligent act of the accused was the proximate cause of death. There must be a direct nexus between the death of the person and the rash and negligent act of the accused. 15. In the case on hand, even if I accept the entire case of the complainant as true, the same has failed to garner any material to show that there is a direct nexus between the death of the son and the alleged act of negligence of the applicants. Ultimately, the Court should consider whether the accused were really responsible for the death of the son of the complainant. It is unfortunate that a young boy lost his life and it is because of the deceased coming in contact with the high tension wire while retrieving his kite which had got entangled in the branches of the trees. But in the absence of anything more, no negligence can be attributed. I am of the view that the proceedings are required to be terminated. The material on record does not disclose that it is the inaction on the part of the applicants which resulted in the death of the son of the complainant. The inaction on the part of the applicants herein to ensure that the branches of the trees are cut in a manner thereby the high tension line may not come in contact with the trees, is not an act which would attract the rigors of culpable negligence punishable under sec.304A of the Indian Penal Code. 16. With the above observations, the petition stands allowed. The complaint being FIR No. I-C.R. No. 10 of 2015 registered against the petitioners herein with Petlad Town Police Station for the offence under Section 304A of the Indian Penal Code is ordered to be quashed and stands terminated. Rule is made absolute to the aforesaid extent.