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2022 DIGILAW 959 (PAT)

Ashok Kumar Verma v. State of Bihar

2022-11-16

RAJEEV RANJAN PRASAD

body2022
ORDER Heard Mr. Yogesh Chandra Verma, learned Senior Counsel assisted by Mr. Rajesh Ranjan, learned counsel for the petitioner and Mr. Deepak Kumar, learned AC to GP-4 for the State. Mr. Rana Randhir Singh, learned counsel appears for the informant (Respondent No. 5). 2. Learned Senior Counsel for the petitioner submits that in this case the petitioner is seeking quashing of the first information report of Patliputra P.S. Case No. 15 of 2017 registered under Sections 337/338/323/308 of the Indian Penal Code. 3. As per the prosecution story, when the petitioner was watering flowers in her balcony in flat no. 103, Manav Enclave, Patliputra, Patna, a flower pot fell on her head from flat no. 503 as a result of which she sustained head injury causing bleeding and she became unconscious. It is alleged that she was taken to Ruban Hospital and later on shifted to Paras Hospital. The informant alleged that because of the said injury, she was unable to walk. It is further alleged that in past also, one flower pot had fallen in her balcony from flat no. 503 to which she had protested. 4. Learned Senior Counsel for the petitioner submits that the investigation of the case is still pending and during the last five years of investigation, it could not be established by sufficient materials that the petitioner is liable for any criminal action for the alleged falling of the flower pot from his balcony. It is his submission that the respondent no. 5 is on the first floor and six more flats are situated over the same flat including the flat of the petitioner and on the balcony of each of the flats, there are flower pots kept by their respective owners. 5. Learned counsel submits that from a reading of the first information report, it will appear that the informant has though alleged that the flower pot of flat no. 503 fell down causing injury on her head but this has not been substantiated in course of investigation. 6. It is submitted that so far as the principles of criminal jurisprudence are concerned, in the nature of the allegations present in this case, the ingredients of Sections 337, 338, 323 and 308 of the Indian Penal Code are not present, hence the petitioner cannot be proceeded against on the strength of the present FIR. 7. 6. It is submitted that so far as the principles of criminal jurisprudence are concerned, in the nature of the allegations present in this case, the ingredients of Sections 337, 338, 323 and 308 of the Indian Penal Code are not present, hence the petitioner cannot be proceeded against on the strength of the present FIR. 7. It is further submitted that the ingredients of Section 308 also requires intention or knowledge while committing the alleged overt act which is not present in the FIR against the petitioner. 8. Learned Senior Counsel submits that without admitting he would argue that it may at best a case attracting torturous liability and based on the principles laid down in the case of Rylands vs. Fletcher reported in (1868) L. R. 3 H. L. 330 the petitioner may be sued but in no case the FIR may be sustained. He has relied upon some of the English decisions and upon the origin of the Rules laid down by the House of Lords in Rylands (supra) case of 1868 laying down the principles of Strict Liability. 9. Mr. Deepak Kumar, learned AC to GP-4 for the State has, though opposed this application but in course of argument, learned counsel submits that the principles of Rylands (supra) seems to be applicable and it may be a case in which the petitioner may be held liable in torts by following the principles of Strict Liability. 10. Learned counsel for the informant has opposed this application. It is submitted that in past also, a flower pot had fallen down from the balcony of flat no. 503 and in this regard, the petitioner was warned, still the petitioner did not take any remedial measure and placed the flower pots in the balcony which fell down and this time caused head injury to the informant. It is submitted that the case is still under investigation, though more than five years have gone but that should not be made a ground for quashing of the first information report. 11. Learned counsel further submits that at this stage so far as the plea on the principle of Strict Liability is concerned, he would oppose it as a ground for quashing of the first information report because earlier also the same occurrence had taken place due to fall of flower pot from the balcony of the petitioner. Consideration 12. 11. Learned counsel further submits that at this stage so far as the plea on the principle of Strict Liability is concerned, he would oppose it as a ground for quashing of the first information report because earlier also the same occurrence had taken place due to fall of flower pot from the balcony of the petitioner. Consideration 12. Having heard learned counsel for the parties and upon perusal of the records, this Court finds that in the first information report, the informant has made the following observations:— ^^lsok esa] Fkkuk izHkkjh] ikVfyiq=k Fkkuk] iVukA egk'k;] fuosnu gS fd eSa eèkq dqekj] mez 42 lky ifr Jh vt; dqekj irk QySV uañ 103] ekuo bUDyso] vYiuk ekdsZV] ikVfyiq=k] iVuk esa jgrh gw¡A fnukad 9-12-2016 dks yxHkx 1%30 cts fnu esa ckydksuh Qqy esa ikuh ns jgh Fkh] blh chp QySV uEcj 503 ls Qqy dk xeyk esjs lj ij fxjk vkSj esjk lj QV x;k vkSj [kwu cgus yxk vkSj eSa csgks'k gks xbZA esjk bykt igys :cu gkfLiVy esa rRi'pkr ikjl gkWfLiVy esa gqvkA vHkh Hkh eSa pyus fQjus ls ykpkj gw¡A iwoZ esa Hkh budh xyrh ls xeyk esjh ckyduh esa fxj pqdk gS ftlds fy, bUgsa euk Hkh fd;k x;k FkkA Ñi;k bl lacaèk esa U;k;ksfpr dkjZokbZ djsaA fo'oklHkktu] gñ@&vLi"V ¼eèkqdqekj½ fnukad 09-01-2017^^ 13. A bare reading of the first information report would show that the informant is not alleging any overt act on the part of the petitioner. It is not her case that the petitioner pushed or threw the flower pot on the head of the informant with an intention to cause an offence attracting the provision of Sections 308, 323, 337 or 338 IPC. Her whole case is that a flower pot fell down from the flat no. 503 of the apartment which caused head injury to her. In such circumstances, a question arises as to whether for the alleged act the petitioner may be prosecuted vicariously for an offence alleged under the Indian Penal Code. 14. The relevant sections of the I.P.C. are being reproduced hereunder:— “308. 503 of the apartment which caused head injury to her. In such circumstances, a question arises as to whether for the alleged act the petitioner may be prosecuted vicariously for an offence alleged under the Indian Penal Code. 14. The relevant sections of the I.P.C. are being reproduced hereunder:— “308. Attempt to commit culpable homicide.—Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. 323. Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. 337. Causing hurt by act endangering life or personal safety of others.—Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both. 338. Causing grievous hurt by act endangering life or personal safety of others.—Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.” 15. To this Court, it appears that there being no specific allegation that this petitioner had committed any overt act which resulted in causing head injury to the informant, without adding or subtracting anything out of the first information report, it may be safely said that the petitioner cannot be prosecuted on the principle of vicarious liability for an offence alleged under the Indian Penal Code. It is well settled in law that the penal provisions of the Indian Penal Code cannot make liable a person vicariously. A person may be prosecuted vicariously only under a special statute if he is made an accused for commission of offence by virtue of his implication by way of a deeming fiction created under the statute. That is not the case here. Petitioner has been made accused in the FIR by saying “Flat No. 503 ke malik”. Thus, he being owner of the flat, is being prosecuted not for committing an overt act but for the reason that he is the owner of the flat. 16. The principle of Strict Liability has its origin in the judgment of the House of Lords in Rylands (supra) case of 1868. In the said case, the defendant had a reservoir constructed over his land for providing water to his mill. The construction was undertaken by independent contractors. There were some old and disused shafts under the site of the reservoir which, the contractors had failed to observe and therefore, block. The defendant had absolutely no knowledge about such shafts. When the reservoir was filled with water, it burst through the shafts and flooded the plaintiff’s coal mines in the adjoining land. Even though, he had not been negligent, nor had a malafide intention, the defendant was held liable for the damages caused to the plaintiff’s mines. The basis of such a liability announced in this case was taken from the rule propounded by Justice Blackburn in the following words:— “We think that the rule of law is, that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape”. 17. Again it has been observed as under:— “He can excuse himself by shewing that the escape was owing to the plaintiff’s default; or, perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.” 18. 17. Again it has been observed as under:— “He can excuse himself by shewing that the escape was owing to the plaintiff’s default; or, perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.” 18. The principle has further developed and applied in series of cases some of them are Cheater vs. Cater reported in (1918) 1 K.B. 247 and Read vs. Lyons and Company Limited reported in (1945) 1 K.B. 216 Similar issues came to be discussed by Hon’ble Guwahati High Court in the case of S.K. Shangring Lamkang vs. State of Manipur reported in 2007 SCC OnLine Gau 33. 19. In the case of Cheater (supra), the plaintiff was tenant to the defendant of a farm held upon a yearly tenancy from September, 1914. One of the fields of the farm adjoined land in the occupation of the defendant, and separated from it by a fence. One the defendant’s land, about 3 feet from the fence, was a shrubbery of box, laurel, and yew trees. On Januaray 4, 1917, two of the yew trees overhung the fence to the extent of 3 feet. The plaintiff said that he did not know of the existence of the yew trees, or that they were dangerous for cattle. The plaintiff’s mare, in foal, was in the field, ate of the yew branches, and died. The Court of Appeal assumed the fact to be that the yew trees overhung the land substantially to the same extent and in the same condition both at the date of the commencement of the tenancy and at the date when the mare ate of the branches. The county court judge, upon the authority of the judgment of Mellish L.J. in Erskine vs. Adeane (1), gave judgment for the defendant. In the Divisional Court, the learned judges differing in opinion, the appeal was dismissed. The plaintiff appealed. The county court judge, upon the authority of the judgment of Mellish L.J. in Erskine vs. Adeane (1), gave judgment for the defendant. In the Divisional Court, the learned judges differing in opinion, the appeal was dismissed. The plaintiff appealed. The plaintiff argued that even though the yew trees overhung the plaintiff’s land at the date of the demise, or even, overhung it so as to be then accessible to horses on the demised land, the defendant was liable upon the ground that it was his duty to see that the trees existing at the date of the demise were not harmful to the tenant of the demised land. His Lordship Hon’ble Pickford L.J. observed that the proposition is not well founded. His Lordship Hon’ble Bankes L.J. observed inter alia “it seems to me upon the authorities that a clear distinction must be drawn between the disputes between adjoining owners and disputes between landlord and tenant. Between adjoining owners the law is clear. Lemmon vs. Webb (1), Crowhurst vs. Amersham Burial Board (2), and Smith vs. Giddy (3) are cases of adjoining owners, and they establish that no real distinction can be drawn between damage caused by trees innocuous in themselves and damage caused by yew trees which may be poisonous.” 20. In the case of S.K. Shangring Lamkang (supra) the Hon’ble Gauhati High Court was considering a writ petition filed for directing the respondents to pay compensation of Rs. 8 lakhs to each of the two petitioners in respect of the death of their respective husbands due to the electrocution caused by a falling of a high tension electric line from its pole while they were proceeding riding a scooter and approaching Khongjon village. The Hon’ble Court noticed that in said action a U.D. Case was registered. According to the petitioners, the electric line was broken and detached from its pole as it was very old and it was also not repaired. The Hon’ble High Court discussed the judgment of the Hon’ble Supreme Court in the case of M.P. Electricity Board vs. Shail Kumari, reported in (2002) 2 SCC 162 : AIR 2002 SC 551 in which the Hon’ble Supreme Court held the State Electricity Board liable to pay compensation in connection with the death of a person due to electrocution on the principle of strict liability. In the said case, the live wire snapped and fell on the public road which was partially inundated with rain water. Not noticing that wire, a cyclist while returning home at night rode over the wire which twitched and snatched him and he was instantaneously electrocuted. The claim for damages made by the dependents of the deceased was resisted by the appellant State Electricity Board on the ground that the electrocution was due to a clandestine pilferage committed by a stranger unauthorisedly siphoning the energy from the supply line. The High Court directed the Board to pay compensation of Rs. 4.34 lakh to the claimants. In paragraph ‘8’ of the said judgment the Hon’ble Supreme Court observed as under:— “8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposures to human life is liable under Law of Torts to compensate for the injury suffered by any other persons irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known in law as “strict liability”. It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defence did all that which could be done for avoiding the harm, he cannot be held liable when the action is based on any negligence attributed but such consideration is not relevant in cases of strict liability where the defence is held liable irrespective of whether he could have avoided the particular harm by taking precautions.” 21. After going through the judgments of the Hon’ble Supreme Court, the Hon’ble Gauhati High Court followed the Rylands (supra) rule and awarded compensation. 22. In the given facts and circumstances and the discussions held hereinabove, this Court is of the considered opinion that the first information report does not show commission of any offence by the petitioner and this Court may reach to such a conclusion without adding or subtracting anything out of the first information report. 22. In the given facts and circumstances and the discussions held hereinabove, this Court is of the considered opinion that the first information report does not show commission of any offence by the petitioner and this Court may reach to such a conclusion without adding or subtracting anything out of the first information report. In such circumstance, the judgment of the Hon’ble Supreme Court in the case of R.P. Kapoor vs. State of Punjab reported in 1960 AIR (SC) 866 and State of Haryana vs. Bhajan Lal reported in 1992 Supp. (1) SCC 335 = AIR 1992 SC 604 both would be attracted and the case would fall under one of the illustrations. 23. The first information report is, therefore, quashed. It is, however, made clear that the informant may seek her remedy as may be advised to her, in appropriate jurisdiction. 24. This application stands allowed.