52 ACQUITTAL AND BAIL CASES ABC 2016(I)

b) he shall not act in a manner injurious to the interest of the

prosecution;
a
c) he shall not leave the country without the prior permission
of this Court;
d)he shall furnish the address of his residence with proper
proof of identification to the I.O. and also to the Court at the time of
execution of the bond of Rs.10,000/( Rupees Ten Thousand Only) and b
surety of like amount and shall not change the residence without
prior permission of this Court;
e) he shall surrender his passport, if any, to the lower Court
within a week.
c
7. Anything observed hereinabove for passing the order under
Section 389 of Code of Criminal Procedure it shall have no bearing on
final out come of the criminal appeal already admitted by this Court.
8. Rule is made absolute to the above extent. Direct service is permitted.
d
Result: - Sentence suspended, bail granted.

ABC 2016 (I) 52 GUJ

ACQUITTAL & BAIL CASES
HIGH COURT OF GUJARAT
e
(J.B. Pardiwala, J)
Criminal Misc Application (For Quashing & Set Aside Fir/Order) No
2942 of 2014
Decided on 23 March 2015
GIRISHBHAI MAGANLAL PANDYA - Appellant(s).
f
Versus
STATE OF GUJARAT - Applicant(s).
Law Covered:- (A) Code of Criminal Procedure Code, 1973 —
Sections 227 & 482 — Inherent powers of the High Court — invoking of
— Indian Penal Code, 1860 — Section 304 & alternatively 304-A — g
Death of school going child travelling in school bus — Principal/Chief
Administrator of the School — charges against — application for
discharge — Only material against appellant — the issue as regards
the poor condition of the buses being plied to pick up and drop the
students was discussed, but the same was not paid heed to. — Held, h
the alleged act cannot be said to be the causa causans (the immediate
cause) — but there was a cause interveniens, which broke the chain of
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 53
causation so as to make the act of the applicant though a negligent
one, not the immediate cause —Appellant discharged. (Para 45)
a
(B) Negligence — Definition of — the breach of a duty —
caused by the omission to do something — which a reasonable man,
guided by those considerations which ordinarily regulate the conduct
of human affairs would do — or doing something which a prudent
and reasonable man would not do. (Para 24)
b
(C) Criminal Jurisprudence — Criminal Liability —
Establishing of — Degree of proof — Held, must be such that— the
negligence of the accused went beyond a mere matter of compensation
between subjects and showed such disregard for the life and safety of
c others, as to amount to a crime against the State and conduct
deserving punishment. (Para 40)
(D) Indian Penal Code, 1860 — Section 304-A — Causing
death by negligence — Ambit & scope of — Degree of proof — Held,
Mere negligence or rashness is, not enough to bring a case within the
d ambit of the Section — Negligence or rashness proved by evidence
must be such as should necessarily carry with it a criminal
liability— Whether such liability is present may depend on the degree
of culpability having regard in each case to the particular time, place
and circumstances. (Para 41)
(E) Indian Penal Code, 1860 — Section 304-A — Scope of —
e Rules & regulation — Contravention of — Held, 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 —Ambalal D. Bhatt Vs.
f State of Gujarat— Relied. (Para 42)
(F) Indian Penal Code, 1860 — Section 304-A — Application
of — Held, The provisions of this Section apply to cases where there
is no intention to cause death and no knowledge that the act done in
all probabilities will cause death — Balwant Singh Vs. State of
g Punjab — relied. (Para 43)
(G) Law of torts — Right to sue a doctor — Held, If the
patient has suffered because of negligent act/ omission of the doctor
— it undoubtedly gives right to the patient to sue the doctor for
damages — This would be a civil liability of the doctor under the law
h tort and/or contract — Dr. P.B Desai Vs. State of Maharashtra & Anr
—ABC 2014 (I) 39SC — relied. (Para 44)
54 ACQUITTAL AND BAIL CASES ABC 2016(I)
(H) Actionable negligence — Essential ingredients of — three
constituents of negligence — (1) A legal duty to exercise due care on
the part of the party complained of towards the party complaining a
the formers conduct within the scope of the duty; — (2) breach of the
said — (3) consequential damage — Cause of action for negligence
arises only when damage occurs — damage is a necessary ingredient
of this tort. (Para 44)
b
(I) Criminal Jurisprudence — Criminal Rashness or Criminal
negligence — 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 — 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 c
hazard knowing that the hazard was of such a degree that injury was
most likely imminent. (Para 44)
(J) Jurisprudence — Criminal Liability vis-à-vis Civil
liability —Distinction between — Held, a clear distinction exists
d
between simple lack of care incurring civil liability and very high
degree of negligence which is required in criminal cases. (Para 44)
(K) Criminal Jurisprudence — Criminal Liability — Negligent
conduct — does not entail an intention to cause harm — but only
involves a deliberate act subjecting another to the risk of harm where
the actor is aware of the existence of the risk and, nonetheless, e
proceeds in the face of the risk — This, however, is the classic
definition of recklessness, which is conceptually different from
negligence and which is widely accepted as being a basis for criminal
liability. (Para 44)
(L) Criminal Jurisprudence — Criminal Liability — Rash & f
Negligent act — Punishment for — Held, the only state of mind
which demonstrates an intention to cause harm to others — or where
there is a deliberate willingness to subject others to the risk of harm
— is punishable. (Para 44)
(M) Criminal Jurisprudence — Criminal Liability — g
Attraction of — Held, only if a person has acted in a morally
culpable fashion criminal liability can be attracted — at least as far
as non strict liability offenses are concerned.(Para 44)
(N) Code of Criminal Procedure Code, 1973 — Sections 227 and
228 — Discharge of Accused & Framing of charge — Stage of — Power h
of the Court — Held, it is permissible for the Court to evaluate the
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 55
materials and documents on record with a view to finding out if the
facts emerging therefrom taken at their face value — discloses
a existence of all the ingredients constituting the alleged offence— It is
permissible for the Court for this limited purpose to sift the evidence—
as it cannot be expected even at that initial stage to accept all that the
prosecution states as a gospel truth— even if it is opposed to the
common sense or the broad probabilities of the case. (Para 13)
b
Facts:- As per the case of the prosecution, the deceased was travelling in the
school bus. It was alleged that the tin-sheet beneath a Seat had corroded
resulting in a big cavity. It was further alleged that although the driver, the
cleaner, the bus supervisor as well as the applicant (Principal/Chief
Administrator of the School) were in full knowledge about such a cavity in the
c
bus beneath the seat, yet the same was not repaired, but on the contrary the
same was kept covered with a thick cloth. On the fateful day, unfortunately,
the deceased fell down through the cavity while the bus was in motion and got
seriously crushed beneath the tyres and succumbed to the injuries.

d On conclusion of the investigation, the charge-sheet was filed for the

offence punishable u/ss 304, 279, 304A r/w 114 of the IPC and Ss 177, 184
and 164 of the MV Act. The applicant herein filed an application before the
learned Sessions Judge, u/s 227, CrPC, praying that he be discharged from
the prosecution as no liability could be fastened on him in his capacity as the
Principal/Chief Administrator of the School. However the application was
rejected. Being dissatisfied, the applicant was before the hon’ble Gujarat
e
High Court in the present application/s 482 CrPC. The Court held that mere
negligence or rashness is, not enough to bring a case within the ambit of the
Section 304-A, IPC. Further holding that the alleged act cannot be said to be
the causa causans (the immediate cause) the appellant was discharged.
f Law of relief:- Mere negligence or rashness is, not enough to bring
a case within the ambit of the Section 304-A, IPC.
Held:- Thus, bearing in mind the principles laid down by the Supreme
Court in the afore-noted cases, it could be said that at the stage of
Sections 227 and 228 of the Code, it is permissible for the Court to
g evaluate the materials and documents on record with a view to finding
out if the facts emerging therefrom taken at their face value discloses
existence of all the ingredients constituting the alleged offence. It is
permissible for the Court for this limited purpose to sift the evidence,
as it cannot be expected even at that initial stage to accept all that the
h prosecution states as a gospel truth, even if it is opposed to the
common sense or the broad probabilities of the case. (Para 14)
56 ACQUITTAL AND BAIL CASES ABC 2016(I)
Though the term 'negligence' has not been defined in the Code, it may
be stated that negligence is the omission to do something which a
reasonable man, guided upon those considerations which ordinarily a
regulate the conduct of human affairs would do, or doing something
which a reasonable and prudent man would not do. [See Mahadev
Prasad Kaushik Vs. State of U.P - AIR 2009 SC 125]. (Para 24)
While on this aspect, it is also instructive to refer to two b
English cases. Rex v. Williamson, 1807-3 C and P 635, was a case
where a man who practised as an accoucheur, owing to a mistake in
his observation of the actual symptoms, inflicted on a patient terrible
injuries from which she died. After pointing out that in a civil case
once negligence was proved, the degree of negligence was irrelevant, c
Lord Ellenborough, the Lord Chief Justice, said.
"In a criminal court, on the contrary, the amount and
degree of negligence are the determining questions. There
must be mens rea........ In explaining to juries the test which
they should apply to determine whether the negligence in a d
particular case, amounted or did not amount to a crime,
Judges have used epithets such as 'culpable', 'criminal', 'gross',
'wicked', 'clear', 'complete'. But whatever epithet be used and
whether an epithet be used or not, in order to establish
criminal liability the facts must be such that, in the opinion of
the jury, the negligence of the accused went beyond a mere e
matter of compensation between subjects and showed such
disregard for the life and safety of others, as to amount to a
crime against the State and conduct deserving
punishment." (Para 40)
f
Mere negligence or rashness is, therefore, not enough to bring
a case within the ambit of Section 304A I. P. C. Negligence or rashness
proved by evidence must be such as should necessarily carry with it a
criminal liability. Whether such liability is present may depend on the
degree of culpability having regard in each case to the particular time,
place and circumstances. If it is merely a case of compensation or g
reparation for injury or damage caused to a person or property, it is
clearly not punishable under either of the sections. The culpability to
be criminal should be such as concerns not merely the person injured
or property damaged but the safety of the public on the road. But the
nature and extent of the injury or damage will be irrelevant in fixing h
criminal liability for negligence under the sections. (Para 41)
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 57
I may quote with profit the case of Ambalal D. Bhatt Vs. State
of Gujarat, reported in (1972) 3 SCC 525, wherein the following
a
observations made by the Supreme Court are worth taking note of.
On this premise it is contended that thoughsection
304A covers various fields of activity, an offence is committed
only if a person charged is shown to have neglected to take
b such action as he is reasonably expected to take to avoid injury
to others and that such reasonable steps that are expected to
be taken by him should show that there was a failure to take
such elementary steps it was necessary for him to take.
Inasmuch as in all cases under section 304A there is a casual
c chain which consists of many links, it is only that which
contributes to the cause of all causes, namely, the causa
causans and not causa sine qua non which fixes the capability.
In other words, it is submitted that it is not enough for the
prosecution to show that the appellant's action was one of the
d
causes of death. It must show that it is the direct consequence,
which in this case has not been established.
9. It is, however, the case of respondent State that had
the appellant not given a single batch number to all the four
lots when he prepared the offending glucose saline, the
analysis by the Chief Analyst would analysis by the Chief
e Analyst would have certainly discovered the heavy deposits
of lead nitrate in the sodium chloride and the lot which
contained this would have been rejected. As the appellant has
been negligent in conforming to the rules, the deaths were the
direct consequence of that negligence.
f
10. It appears to us that in a prosecution for an offence
under section 304A, 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
g 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 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
h determine whether the appellant's act in giving only one batch
number to all the four lots manufactured on 12-11-62 in
58 ACQUITTAL AND BAIL CASES ABC 2016(I)
preparing batch no. 211105 was the cause of deaths and
whether those deaths were a direct consequence of the
a
appellant's act that is, whether the appellant's 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 cause causans; it is not b
enough that it may have been the causa sine qua non". This
view has been adopted by this Court in several decisions.In
Kurban Hussein Mohem-medali Rangwala v. State of
Maharashtra, 1965-2 SCR 622 = (AIR 1965 SC 1616), the
accused who had manufactured wet paints without a licence c
was acquitted of the charge under section 304A 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 d
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 Rahiman
Mulani v. State of Maharashtra (1968) 2 SCR 515 = (AIR 1968 SC e
829) 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 by itself was no sufficient to warrant a conviction
under section 304A. It would be different if it can be established
as in the case of Balachandra v. State of Maharashtra, (1968) 3 f
SCR 766 = (AIR 1968 SC 1319) that deaths and injuries caused
by the contravention of a prohibition in respect of the substance
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 g
where even friction or percussion could cause an explosion, that
contravention would be the causa causans.
The answers to these questions will determine
whether the appellant's act is the causa causans or has there
h
been a cause interveniens which has broken the chain of
causation so as to make his act, though a negligent one, not the
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 59
immediate cause or whether it amounts to an act of gross
negligence or recklessly negligent conduct. In this context it
a
may be observed that in a case of this nature where as many as
12 persons lost their lives as a result of the parenteral
administration of the drug comprised in Batch No. 211105
prepared by the appellant, those deaths however shocking
and regrettable they may be, ought not to allow the mind to
b boggle while appreciating the evidence which must
necessarily be free from any such consideration." (Para 42)
I may also quote with profit a decision of the Supreme Court
in the case of Balwant Singh Vs. State of Punjab, reported in 1994
c Supp (2) SCC 67. The following observations of the Supreme Court
are worth taking note of.
"8. Then the question would be whether an offence
under Sec. 304-A, I.P.C, is made out? The provisions of this
Section apply to cases where there is no intention to cause
d death and no knowledge that the act done in all probabilities
will cause death. Therefore this provision is directed at
offences outside the range of Ss. 299 and 300, I.P.C. and
obviously contemplates those cases into which neither
intention nor knowledge enters. The words "not amounting to
culpable homicide" in the Section are very significant and it
e must therefore be understood that intentionally or knowingly
inflicted violence directly and wilfully caused is excluded. The
Section applies only to such acts which are rash or negligent
and are directly the cause of death of another person. In other
words, a rash act is primarily an over hasty act as opposed to a
f deliberate act but done without due care and caution. Then the
question whether the conduct of the accused amounted to
culpable rashness or negligence depends on the amount of
care and circumspection which a prudent and reasonable man
would consider it to be sufficient and this depends on the
g circumstances in each case." (Para 43)
In a very recent pronouncement of the Supreme Court in the
case of Dr. P.B Desai Vs. State of Maharashtra and anr., reported in
AIR 2014 SC 795 =ABC 2014 (I) 39SC, the Supreme Court has
explained in details as to when criminal liability would be attracted in
h cases of medical negligence. It is no doubt true that the Supreme
Court was dealing with an issue whether the role of the appellant as a
60 ACQUITTAL AND BAIL CASES ABC 2016(I)
doctor in that case amounted to a rash or a negligent act as to
endanger the life of the patient. The Supreme Court made the
a
following observations:-
"(4) Breach of Duty to Take Care: Consequences
42. If the patient has suffered because of negligent act/
omission of the doctor, it undoubtedly gives right to the
patient to sue the doctor for damages. This would be a civil b
liability of the doctor under the law tort and/or contract. This
concept of negligence as a tort is explained in Jacob Mathews
v. State of Punjab and Another 2005(6) SCC1, in the following
manner:
c
10. The jurisprudential concept of negligence defines
any precise definition. Eminent jurists and leading judgments
have assigned various meanings to negligence. The concept as
has been acceptable to Indian jurisprudential thought is well
stated in the Law of Torts, Ratanlal & Dhirajlal (24th Edn.,
d
2002, edited by Justice G.P. Singh).
Negligence is the breach of a duty caused by the
omission to do something which a reasonable man, guided by
those considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent
and reasonable man would not do. Actionable negligence e
consists in the neglect of the use of ordinary care or skill
towards a person to whom the defendant owes the duty of
observing ordinary care and skill, by which neglect the
plaintiff has suffered injury to his person or property. The
definition involves three constituents of negligence: (1) A legal f
duty to exercise due care on the part of the party complained
of towards the party complaining the formers conduct within
the scope of the duty; (2) breach of the said; and (3)
consequential damage. Cause of -action for negligence arises
only when damage occurs; for, damage is a necessary g
ingredient of this tort.
43. Such a negligent act, normally a tort, may also give
rise to criminal liability as well, though it was made clear by
this Court in Jacobs Case (supra) that jurisprudentially the
h
distinction has to be drawn between negligence under Civil
Law and negligence under Criminal Law. This distinction is
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 61
lucidly explained in Jacobs Case, as can be seen from the
following paragraphs:
a
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
b 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
c 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
d 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 Lord Diplock spoke in a
e Bench of five and the other Law Lords agreed with him. He
reiterated his opinion in R. v. Caldwell(All ER p. 982e-f) 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
f liability as soluble by classifying the test of liability as being
subjective or objective, and said: 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
g 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
h
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,
62 ACQUITTAL AND BAIL CASES ABC 2016(I)
having recognised that there was such risk, he nevertheless
goes on to do it.
a
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 b
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. c
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 d
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
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 e
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
f
which is required in criminal cases. In Riddell v. Reid4a (AC at
p. 31) Lord Porter said in his speech µ A higher degree of
negligence has always been demanded in order to establish a
criminal offence than is sufficient to create civil liability.
15. The fore-quoted statement of law in Andrews has g
been noted with approval by this Court inSyad Akbar v. State
of Karnataka. The Supreme Court has dealt with and pointed
out with reasons the distinction between negligence in civil
law and in criminal law. Their Lordships have opined that
there is a marked difference as to the effect of evidence viz. the h
proof, in civil and criminal proceedings. In civil proceedings, a
mere preponderance of probability is sufficient, and the --
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 63
defendant is not necessarily entitled to the benefit of every
reasonable doubt; but in criminal proceedings, the persuasion
a
of guilt must amount to such a moral certainty as convinces
the mind of the Court, as a reasonable man, beyond all
reasonable doubt. Where negligence is an essential ingredient
of the offence, the negligence to be established by the
prosecution must be culpable or gross and not the negligence
b merely based upon an error of judgment.
44. Thus, in the civil context while we consider the
moral implications of negligent conduct, a clear view of the
state of mind of the negligent doctor might not require strictly.
c This is for the reason the law of tort is ultimately not
concerned with the moral culpability of the defendant, even if
the language of fault is used in determining the standard of
care. From the point of view of civil law it may be appropriate
to impose liability irrespective of moral blameworthiness. This
d
is because in civil law two questions are at issue: Was the
defendant negligent? If so, should the defendant bear the loss
in this particular set of circumstances? In most cases where
negligence has been established, the answer to the second
question will be in the affirmative, unless the doctrine of
remoteness or lack of foresee ability militates against a finding
e of liability, or where there is some policy reason precluding
compensation. The question in the civil context is, therefore,
not about moral blame, even though there will be many cases
where the civilly liable defendant is also morally culpable.
(5) Criminal Liability : When attracted
f
45. It follows from the above that as far as the sphere of
criminal liability is concerned, as mens rea is not abandoned, the
subjective state of mind of the accused lingers a critical
consideration. In the context of criminal law, the basic question is
quite different. Here the question is: Does the accused deserve to
g be punished for the outcome caused by his negligence? This is a
very different question from the civil context and must be
answered in terms of mens rea. Only if a person has acted in a
morally culpable fashion can this question be answered positively,
at least as far as non strict liability offenses are concerned.
h
46. The only state of mind which is deserving of
punishment is that which demonstrates an intention to cause
64 ACQUITTAL AND BAIL CASES ABC 2016(I)
harm to others, or where there is a deliberate willingness to
subject others to the risk of harm. Negligent conduct does not
entail an intention to cause harm, but only involves a a
deliberate act subjecting another to the risk of harm where the
actor is aware -of the existence of the risk and, nonetheless,
proceeds in the face of the risk. This, however, is the classic
definition of recklessness, which is conceptually different from
negligence and which is widely accepted as being a basis for b
criminal liability." (Para 44)
For the foregoing reasons, I am of the view that so far as the
applicant herein is concerned, he stands on a different footing as
compared to the other accused. The only material against him in the
c
entire charge-sheet is a statement to the effect that in the periodical
meetings between the parents and the management of the school, the
issue as regards the poor condition of the buses being plied to pick up
and drop the students was discussed, but the same was not paid heed to.
On such allegations, the applicant herein is sought to be put to trial for
d
the offence of culpable homicide not amounting to murder and in the
alternative for the offence under Section 304A IPC. In my view, the
applicant should not be asked to face the trial either for the offence of a
rash or a negligent act punishable under Section 304A of the IPC or
Section 304 IPC. The persons who could be said to be directly
responsible for the unfortunate death of the student are the driver of the
e
vehicle, including the cleaner. This observation, of course, is prima-facie
and subject to the evidence that may be led at the time of the trial.
However, the applicant's act of not paying heed to the requests made by
the parents regarding the necessary repairs to be carried out in the buses
cannot be said to be the causa causans, but there was a cause
f
interveniens, which broke the chain of causation so as to make the act of
the applicant though a negligent one, not the immediate cause. (Para 45)
Counsel:- For Appellant(s): A.D. Shah, Advoate.
For Applicant(s): L.B. Dabhi, APP.
g
Cases Referred:-
1. Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj Bajja and ors., AIR
1990 SC 1962 (1). (Para 9)
2. Union of India Vs. Prafulla Kumar Samal, reported in AIR 1979 SC 366 (1). (Para 10)
3. Madhya Pradesh Vs. Sheetla Sahai and ors., reported in (2009) 8 SCC 617 (Para 11) h
4. Keshub Mahindra Vs. State of Madhya Pradesh, 1996 6 SCC 129 (Para 12)
5. Empress v. Idu Beg, (1881) ILR 3 All 776 (Para 23)
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 65
6. Mahadev Prasad Kaushik Vs. State of U.P - AIR 2009 SC 125]. (Para 24)
7. Naresh Giri Vs. State of M.P., reported in (2008) 1 SCC (Cri.) 324. (Para 25)
a
8. Sushil Ansal v. State through Central Bureau of Investigation, (2014)6
SCC 173. (Para 30)
9. Kurban Hussein Mohamedalli Rangawalla Vs. State of Maharashtra,
AIR 1965 S.C. 1616 (Para 30)
10. A. W. Lazarus v. The State', AIR 1953 All 72 (A). (Para 32)
b
11. Empress of India v. Idu Beg', 3 All 776 (B). (Para 32)
12. H.W. Smith v. Emperor', AIR 1926 Cal 300 (C). (Para 32)
13. Andrews v. Director of Public Prosecutions', 1937-2 All ER 552 (D). (Para 33)
14. Ambalal D. Bhatt Vs. State of Gujarat, reported in (1972) 3 SCC 525. (Para 42)
c
15. Balwant Singh Vs. State of Punjab, reported in 1994 Supp (2) SCC 67. (Para 43)
16. Dr. P.B Desai Vs. State of Maharashtra and anr.; AIR 2014 SC 795= ABC 2014 (I) 39 SC
JUDGMENT
J.B. PARDIWALA, J: -1. Rule. Mr. L.B. Dabhi, the learned Additional
Public Prosecutor waives service of notice of rule for and on behalf of
d
the respondent - State of Gujarat.
2. By this writ-application under Section 482 of the Code of
Criminal Procedure, 1973, the applicant - original accused No.4, seeks
to invoke the inherent powers of this Court, calling in question the
legality and validity of the order dated 24th October, 2013, passed by
e the Sessions Judge, Valsad, below Exh.24, in Sessions Case No. 19 of
2011, by which the learned Sessions Judge rejected the discharge
application filed by the applicant herein, under Section 227 of the
Code of Criminal Procedure Code, 1973.
3. The facts giving rise to this application may be summarized
f as under:-
3.1 The applicant herein is the Principal/School Administrator
of an English medium school running in the name of "Saraswati
International English Medium School", situated at Abrama, Valsad.
g 3.2 On 26th October, 2010, a first information report came to
be lodged at the Valsad Rural Police Station against the applicant
herein and three other persons for the offence punishable under
Sections 279 and 304A of the IPC and also under Sections 177 and 284
of the Motor Vehicles Act.
h 3.3 The first information was lodged by the grand-father of a
student, namely - Adit, aged four, who at the relevant point of time
66 ACQUITTAL AND BAIL CASES ABC 2016(I)
was studying in the Junior K.G., regarding the accidental death of
Adit on account of the negligence on the part of the accused persons
a
named in the FIR.
3.4 It appears that on conclusion of the investigation, charge-
sheet came to be filed against four persons, which includes the
applicant herein. The accused No.1 shown in the charge-sheet is the
driver of the school bus No.13, bearing Registration No. GJ-15X-9974, b
the accused No.2 is the cleaner of the said bus, the accused No.3 is the
bus supervisor and the accused No.4 is the applicant herein.
3.5 It is the case of the prosecution that on 26th October, 2010,
the deceased was travelling in the school bus, which was being driven
by the original accused No.1, of which the original accused No.2 was c
the cleaner. It is alleged that the tin-sheet beneath the Seat No.3 on the
left side from the door of the bus had got corroded or rusted resulting
in a big cavity and from the said cavity, the tyre of the bus was visible
as the size of the cavity beneath the seat was admeasuring 37 x 44". It
is the case of the prosecution that the length between the cavity on the d
tin-sheet and the tyre was about 8". It is further alleged that although
the driver, the cleaner, the bus supervisor as well as the applicant
were in full knowledge about such a cavity in the bus beneath the
seat, yet the same was not repaired, but on the contrary the same was
kept covered with a thick cloth. On the fateful day, unfortunately, the
deceased fell down through the cavity while the bus was in motion e
and got seriously crushed beneath the tyres. It is alleged that the
driver negligently kept on driving the bus, despite the fact that the
deceased had fallen down through the cavity. The deceased
succumbed to the injuries.
f
4. It appears that although the first information report was
registered of the offence punishable under Section 304A IPC, at a later
stage, Section 304 of the IPC came to be added by way of a report filed
by the Police Sub Inspector of the Valsad Rural Police Station in the
Court of the learned Additional Chief Judicial Magistrate First Class.
On conclusion of the investigation, the charge-sheet was filed for the g
offence punishable under Sections 304, 279, 304A read with Section 114
of the IPC and Sections 177, 184 and 164 of the Motor Vehicles Act.
5. It appears that the applicant herein filed an application
before the learned Sessions Judge, Valsad, under Section 227 of the h
Code, praying that he be discharged from the prosecution as no
liability could be fastened on him in his capacity as the Principal/
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 67
Chief Administrator of the School. However, the learned Sessions
Judge, Valsad, vide order dated 24th October, 2013, rejected the
a
application. Being dissatisfied, the applicant has come up with the
present application.
6. Submissions on behalf of the applicant:
6.1 Mr. A.D. Shah, the learned counsel appearing for the
b applicant vehemently submitted that the Court below committed a
serious error in rejecting the discharge application filed by the
applicant herein. He vehemently submitted that the facts emerging
from the papers of the charge-sheet do not reveal commission of the
offence of culpable homicide not amounting to murder punishable
c under Section 304 Part-II of the IPC.
6.2 Mr. Shah submitted that having regard to the role of the
applicant herein attributed by the prosecution, no offence of even a
rash or negligent act punishable under Section 304A is made out. Mr.
Shah submitted that the applicant herein is sought to be prosecuted
d on the ground that the defective school buses were being plied by the
drivers and the cleaners without taking appropriate steps for the
repairs and maintenance of the same. Mr. Shah submitted that in the
entire charge-sheet, the only case against the applicant herein is that
the parents of the students had discussed about the poor condition of
the school buses, and despite drawing the attention of the applicant
e herein, no corrective steps were taken. Mr. Shah also pointed out that
his client resides at Mumbai. Although he may be the Chief
Administrator, yet on the date of the accident he was in Mumbai and
this fact is not in dispute.
6.3 Mr. Shah submitted that Section 304 IPC has no application
f
at all since even if the entire case of the prosecution is accepted as
true, there is no case of a voluntary commission of offence against the
present applicant. Mr. Shah submitted that the accused No.3 is
working as the bus supervisor in the school past five years. On the
date of the incident also, he was the bus supervisor. The accused No.1
g
shown in the charge-sheet was driving the bus in question, whereas
the accused No.2 was the cleaner of the bus on the date of the
incident.
6.4 Mr. Shah submitted that if Section 304 of the IPC is not
h applicable on the face of the case of the prosecution, then Section 304-
A would also not be applicable against the applicant herein. He
submitted that under Section 304-A IPC, there is a causal chain which
68 ACQUITTAL AND BAIL CASES ABC 2016(I)
consists of many links. It is only that which contributes to the cause of
all causes, namely, the causa causans and not causa sinequa-non,
which fixes the culpability. In other words, it is submitted that it is a
not enough for the prosecution to show that the applicant's inaction to
get the bus repaired was one of the causes of death. It must show that
it is the direct consequence, which in the present case, has not been
established even prima-facie. In such circumstances referred to above,
Mr. Shah prays that no case is made out against the applicant herein, b
and he deserves to be discharged from the prosecution.
7. Submissions on behalf of the State:
7.1 This application has been vehemently opposed by Mr.
Dabhi, the learned Additional Public Prosecutor appearing for the c
State. He submitted that no error, not to speak of any error of law,
could be said to have been committed by the trial Court in rejecting
the discharge application. Mr. Dabhi submitted that while deciding a
discharge application, the Court has only to consider a prima facie
case. The Court has not to consider whether the evidence on record is d
sufficient to convict the accused. The Court has to merely consider
whether there are suspicious circumstances against the accused so as
to frame a charge against him. He submitted that it is not necessary
for the Court to enter into the pros and cons of the matter or into a
weighing and balancing of the evidence and probabilities, which is
really his function after the trial starts. He submitted that a four year's e
old innocent child lost his life in a shocking and regrettable manner.
7.2 Mr. Dabhi has placed reliance on the decision of the
Supreme Court in the case of State of Maharashtra Vs. Salman
Salimkhan & anr., reported in 2004 SC 1189.
f
In such circumstances referred to above, Mr. Dabhi prays that
there being no merit in this application, the same be rejected.
8. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only question
that falls for my consideration is whether the trial Court committed g
any error in passing the impugned order.
Analysis:
9. Since the subject matter before me is an order passed by the
trial Court rejecting the discharge application, I deem it necessary to h
consider the position of law so far as the scope of discharge under
Section 227 of the Code is concerned. This issue of the scope of a
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 69
discharge application has been considered at length by the Supreme
Court in the case of Niranjan Singh Karam Singh Punjabi Vs. Jitendra
a
Bhimraj Bajja and ors., reported in AIR 1990 SC 1962 (1). I may quote
the relevant observations of the Supreme Court in this regard, as
contained in paragraphs 4 to 7.
"4. Under Section 14(3) of the Act a Designated Court is
b conferred with the powers of a Court of Session and is required to try
any offence under the Act 'as if it were' a Court of Session. The
procedure which it must follow at the trial is the one prescribed in the
Code for the trial of cases before a Court of Session. This is of course
subject to the other provisions of the Act which means that if there is
any provision in the Act which is not consistent with the procedure
c
stipulated in the Code for such trials, it is the procedure in the Act that
shall prevail. The procedure for trial before a Court of Session is set out
in Chapter XVIII of the Code. Section 225 places the public prosecutor
in charge of the conduct of the prosecution. Section 226 requires him to
open the prosecution case by describing the charge against the accused
d and stating by what evidence he proposes to bring home the guilt
against the accused. Once that is done the Judge has to consider whether
or not to frame a charge. Section 227 of the Code reads as under:
"If, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the submissions of
the accused and the prosecution in this behalf, the Judge considers
e
that there is not sufficient ground for proceeding against the accused,
he shall discharge the accused and record his reasons for so doing."
Under this section a duty is cast on the Judge to apply his
mind to the material on record and if on examination of the record he
f does not find sufficient ground for proceeding against the accused, he
must discharge him. On the other hand if after such consideration
and hearing he is satisfied that a prima facie case is made out against
the accused, he must proceed to frame a charge as required by Section
228 of the Code. Once the charge is framed the trial must ordinarily
end in the conviction or acquittal of the accused. This is in brief the
g
scheme of Sections 225 to 235 of the Code,
5. Section 227, introduced for the first time in the New
Code, confers a special power on the Judge to discharge an accused at
the threshold if 'upon consideration' of the record and documents he
h considers 'that there is not sufficient ground' for proceeding against
the accused. In other words his consideration of the record and
document at that stage is for the limited purpose of ascertaining
70 ACQUITTAL AND BAIL CASES ABC 2016(I)
whether or not there exists sufficient grounds for proceeding with the
trial against the accused. If he comes to the conclusion that there is
sufficient ground to proceed, he will frame a charge under Section a
228, if not he will discharge the accused. It must be remembered that
this section was introduced in the Code to avoid waste of public time
over cases which did not disclose a prima facie case and to save the
accused from avoidable harassment and expenditure.
b
6. The next question is what is the scope and ambit of the
'consideration' by the trial Court at that stage. Can he marshal the
evidence found on the record of the case and in the documents placed
before him as he would do on the conclusion of the evidence adduced
by the prosecution after the charge is framed? It is obvious that since
he is at the stage of deciding whether or not there exists sufficient c
grounds for framing the charge, his enquiry must necessarily be
limited to deciding if the facts emerging from the record and
documents constitute the offence with which the accused is charged.
At that stage he may sift the evidence for that limited purpose but he is
not required to marshal the evidence with a view to separating the d
grain from the chaff. All that he is called upon to consider is whether
there is sufficient ground to frame the charge and for this limited
purpose he must weigh the material on record as well as the
documents relied on by the prosecution. In the State of Bihar v.
Ramesh Singh, (1978) 1 SCR 257 : (AIR 1977 SC 2018) this Court
observed that at the initial stage of the framing of a charge if there is a e
strong suspicion-evidence which leads the Court to think that there is
ground for presuming that the accused has committed an offence then
it is not open to the Court to say that there is no sufficient ground for
proceeding against the accused. If the evidence which the prosecutor
proposes to adduce to prove the guilt, of the accused, even if fully f
accepted before it is challenged by cross-examination or rebutted by the
defence evidence, if any, cannot show that the accused committed the
offence, then there will be no sufficient ground for proceeding with the
trial. In Union of India v. Prafulla Kumar Samal, (1979) 2 SCR 229:
(AIR 1979 SC 366) this Court after considering the scope of Section g
227 observed that the words 'no sufficient ground for proceeding
against the accused clearly show that the Judge is not merely a post
office to frame charge at the behest of the prosecution but he has to
exercise his judicial mind to the facts of the case in order to determine
that a case for trial has been made out by the prosecution. In assessing
h
this fact it is not necessary for the Court to enter into the pros and
cons of the matter or into weighing and balancing of evidence and
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 71
probabilities but he may evaluate the material to find out if the facts
emerging therefrom taken at their face value establish the ingredients
a constituting the said offence. After considering the case law on the
subject, this Court deduced as under:
"(1) That the Judge while considering the question of
framing the charges under Section 227 of the Code has the
undoubted power to sift and weigh the evidence for the limited
b
purpose of finding out whether or not a prima facie case against the
accused has been made out.
(2) Where the materials placed before the Court disclose
grave suspicion against the accused which has not been properly
c explained the Court will be fully justified in framing a charge and
proceeding with the trial.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay down a
rule of universal application. By and large however if two views are
d equally possible and the Judge is satisfied that the evidence adduced
before him while giving rise to some suspicion but not grave
suspicion against the accused he will be fully within his right to
discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of
the Code the Judge which (sic) under the present Code is a senior and
e experienced Judge cannot act merely as a post office or a mouth-piece
of the prosecution, but has to consider the broad probabilities of the
case, the total effect of the evidence and the documents produced
before the Court, any basic infirmities appearing in the case and so
on. This however does not mean that the Judge should make a roving
f enquiry into the pros and cons of the matter and weigh the evidence
as if he was conducting a trial."
7. Again in Supdt. and Remembrancer of Legal Affairs, West
Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274: (AIR 1980 SC 52)
this Court observed in paragraph 18 of the judgment as under:-
g
"The standard of test, proof and judgment which is to be
applied finally before finding, the accused guilty or otherwise, is not
exactly to be applied at the stage of Section 227 or 228 of the Code of
Criminal Procedure, 1973. At this stage, even a very strong
suspicion founded upon materials before the Magistrate which leads
h him to form a presumptive opinion as to the existence of the factual
ingredients constituting the offence alleged may justify the framing
72 ACQUITTAL AND BAIL CASES ABC 2016(I)
of charge against the accused in respect of the commission of that
offence. From the above discussion, it seems well settled that at the
Sections 227-228 stage the Court is required to evaluate the material a
and documents on record with a view to finding out if the facts
emerging therefrom taken at their face value disclose the existence of
all the ingredients constituting the alleged offence. The Court may
for this limited purpose sift the evidence as it cannot be expected
even at that initial stage to accept all that the prosecution states as b
gospel truth even if it is opposed to common sense or the broad
probabilities of the case."
10. In Union of India Vs. Prafulla Kumar Samal, reported in
AIR 1979 SC 366 (1) the Supreme Court considered the question
c
regarding discharge under Section 227 of the Code. I may quote the
observations of the Supreme Court as contained in paras 7 to 10.
"7. Section 227 of the Code runs thus:-
"If, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the submissions of d
the accused and the prosecution in this behalf, the Judge considers
that there is not sufficient ground for proceeding against the accused,
he shall discharge the accused and record his reasons for so doing."
The words 'not sufficient ground for proceeding against the
accused' clearly show that the Judge is not a mere post-office to
e
frame the charge at the behest of the prosecution, but has to exercise
his judicial mind to the facts of the case in order to determine
whether a case for trial has been made out by the prosecution. In
assessing this fact, it is not necessary for the court to enter into the
pros and cons of the matter or into a weighing and balancing of
evidence and probabilities which is really his function after the trial f
starts. At the stage of Section 227, the Judge has merely to sift the
evidence in order to find out whether or not there is sufficient
ground for proceeding against the accused. The sufficiency of ground
would take within its fold the nature of the evidence recorded by the
police or the documents produced before the court which ex facie g
disclose that there are suspicious circumstances against the accused
so as to frame a charge against him.
8. The scope of Section 227 of the Code was considered by a
recent decision of this Court in the case of State of Bihar v. Ramesh
h
Singh, (1978) 1 SCR 257 : (AIR 1977 SC 2018) where Untwalia J.
speaking for the Court observed as follows (at p. 2019):-
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 73
"Strong suspicion against the accused, if the matter remains
in the region of suspicion, cannot take the place of proof of his guilt
a at the conclusion of the trial. But at the initial stage if there is a
strong suspicion which leads the Court to think that there is ground
for presuming that the accused has committed an offence then it is
not open to the Court to say that there is no sufficient ground for
proceeding against the accused. The presumption of the guild of the
b accused which is to be drawn at the initial stages is not in the sense
of the law governing the trial of criminal cases in France where the
accused is presumed to be guilty unless the contrary is proved. But it
is only for the purpose of deciding prima facie whether the Court
should proceed with the trial or not. If the evidence which the
c Prosecutor proposes to adduce to prove the guilt of the accused even
if fully accepted before it is challenged in cross-examination or
rebutted by the defence evidence, if any, cannot show that the
accused committed the offence, then there will be no sufficient
ground for proceeding with the trial."
d This Court has thus held that whereas strong suspicion may
not take the place of the proof at the trial stage, yet it may be
sufficient for the satisfaction of the Sessions Judge in order to frame a
charge against the accused. Even under the Code of 1898 this Court
has held that a committing Magistrate had ample powers to weigh
the evidence for the limited purpose of finding out whether or not a
e case of commitment to the Sessions Judge has been made out.
9. In the case of K. P. Raghavan v. M. H. Abbas, AIR 1967
SC 740 this Court observed as follows (at p. 742):-
"No doubt a Magistrate enquiring into a case under S. 209,
Cr. P. C. is not to act as a mere Post Office, and has to come to a
f conclusion whether the case before him is fit for commitment of the
accused to the Court of Session".
To the same effect is the later decision of this Court in the
case of Alamohan Das v. State of West Bengal, (1969) 2 SCR 520 :
(AIR SC 863) where Shah, J. speaking for the Court observed as
g
follows (at p. 866) :-
"A Magistrate holding an enquiry is not intended to act
merely as a recording machine. He is entitled to sift and weigh the
materials on record, but only for seeing whether there is sufficient
h
evidence for commitment, and not whether there is sufficient
evidence for conviction. If there is no prima facie evidence or the
evidence is totally unworthy of credit, it is his duty to discharge the
74 ACQUITTAL AND BAIL CASES ABC 2016(I)
accused : if there is some evidence on which a conviction may
reasonably be based, he must commit the case."
a
In the aforesaid case this Court was considering the scope
and ambit of Section 209 of the Code of 1898.
10. Thus, on a consideration of the authorities mentioned
above, the following principles emerge:
(1) That the Judge while considering the question of framing b
the charges under Section 227 of the Code has the undoubted power
to sift and weigh the evidence for the limited purpose of finding out
whether or not a prima facie case against the accused has been made
out;
c
(2) Where the materials placed before the Court disclose
grave suspicion against the accused which has not been properly
explained the Court will be fully justified in framing a charge and
proceeding with the trial.
(3) The test of determine a prima facie case would naturally d
depend upon the facts of each case and it is difficult to lay down a
rule of universal application. By and large however if two views are
equally possible and the Judge is satisfied that the evidence produced
before him while giving rise to some suspicion but not grave
suspicion against the accused, he will be fully within his right to
discharge the accused. e
(4) That in exercising his jurisdiction under Section 227 of
the Code the Judge which under the present Code is a senior and
experienced Court cannot act merely as a Post-Office or a mouth-
piece of the prosecution, but has to consider the broad probabilities of
the case, the total effect of the evidence and the documents produced f
before the Court, any basic infirmities appearing in the case and so
on. This however does not mean that the Judge should make a roving
enquiry into the pros and cons of the matter and weigh the evidence
as if he was conducting a trial."
11. In the case of State of Madhya Pradesh Vs. Sheetla Sahai and g
ors., reported in (2009) 8 SCC 617, the Supreme Court once again reiterated
the well settled principles, or to put it in other words, the test for the
purpose of framing of charge. I may quote the following observations
made by the Supreme Court, as contained in paragraphs 51 to 54.
h
"51. There cannot be any doubt whatsoever that the tests for
the purpose of framing of charge and the one for recording a
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 75
judgment of conviction are different. A distinction must be borne in
mind that whereas at the time of framing of the charge, the court
a may take into consideration the fact as to whether the accused might
have committed the offence or not; at the time of recording a
judgment of conviction, the prosecution is required to prove beyond
reasonable doubt that the accused has committed the offence.
52. In this case, the probative value of the materials on
b
record has not been gone into. The materials brought on record have
been accepted as true at this stage. It is true that at this stage even a
defence of an accused cannot be considered. But, we are unable to
persuade ourselves to agree with the submission of Mr. Tulsi that
where the entire materials collected during investigation have been
c placed before the court as part of the charge-sheet, the court at the
time of framing of the charge could only look to those materials
whereupon the prosecution intended to rely upon and ignore the
others which are in favour of the accused.
53. The question as to whether the court should proceed on the
d basis as to whether the materials brought on record even if given face
value and taken to be correct in their entirety disclose commission of
an offence or not must be determined having regard to the entirety of
materials brought on record by the prosecution and not on a part of it.
If such a construction is made, sub-section (5) of Section 173 of the
Code of Criminal Procedure shall become meaningless.
e
54. The prosecution, having regard to the right of an accused
to have a fair investigation, fair inquiry and fair trial as adumbrated
under Article 21 of the Constitution of India, cannot at any stage be
deprived of taking advantage of the materials which the prosecution
itself has placed on record. If upon perusal of the entire materials on
f record, the court arrives at an opinion that two views are possible,
charges can be framed, but if only one and one view is possible to be
taken, the court shall no put the accused to harassment by asking
him to face a trial. {See State of Maharashtra and others v. Som Nath
Thapa and others [(1996) 4 SCC 659]}."
g
12. I may also quote with profit certain observations of the
Supreme Court in the case of Keshub Mahindra Vs. State of Madhya
Pradesh, 1996 6 SCC 129 (popularly known as the Bhopal Gas
Tragedy case). I may quote observations made by the Court in paras
19 to 20 of the said decision.
h
"19. The learned Senior Counsel for the appellant-accused
on the other had submitted that even if taking the material available
76 ACQUITTAL AND BAIL CASES ABC 2016(I)
on record at the stage on its face value the short question is whether
any charge could have been framed against the accused under
Section 304 Part-II IPC with our without the aid of Section 35 IPC a
and even for that matter any charges could have been framed under
Sections 326, 324 or 429 with or without the aid of Section 35 IPC.
We may at once state that both the learned Sessions Judge as well as
the High Court have taken the view on the aforesaid material that a
prima facie case has been made out by the prosecution requiring the b
accused to face the aforesaid charges and the trial of the accused on
these charges can not be cut short or nipped in the bud in the light of
the aforesaid material which has to be accepted as prima facie true
and reliable at this preliminary stage of framing o charges.
20. It, therefore, becomes necessary for us now to address c
ourselves on this moot question. As noted earlier the main charge
framed against all the accused is under section 304 Part II IPC. So far
as Accused 2,3, 4 and 12 are concerned, they are also charged with
offences under sections 326, 324 IPC and 429 IPC read with Section
35 IPC while Accused 5 to 9 are charged substantially with these d
offences also. We shall first deal with the charges framed against the
accused concerned under the main provisions of Section 304 Part II
IPC. A look at Section 304 Part II shows that the accused concerned
can be charged under that provision for an offence of culpable homicide
not amounting to murder and when being so charged if it is alleged
that the act of the accused concerned is done with the knowledge that it e
is likely to cause death but without any intention to cause death or to
cause such bodily injury as likely to cause death the charged offences
would fall under Section 304 Part II. However, before any charge
under Section 304 Part II can be framed, the material on record must
at least prima facie show that the accused is guilty of culpable f
homicide and the act allegedly committed by him must amount to
culpable homicide. However, if the material relied upon for framing
such a charge against the accused concerned falls short of even prima
facie indicating that the accused appeared to be guilty of an offence of
culpable homicide Section 304 Part I or Part in the interest of justice
g
would get out of the picture. In this connection we have to keep in
view Section 299 of the Indian Penal Code which defines culpable
homicide. It lays downs that :-
"Whoever cause death by doing an act with the intention of
causing death, or with the intention of causing such bodily injury as h
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."
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 77
Consequently, the material relied upon by the prosecution for
framing a charge under Section 304 Part II must at least prima facie
a indicate that the accused had done an act which had caused death with
at least such a knowledge that he was by such act likely to cause death.
The entire material which the prosecution relied upon before the trial
court for framing the charge and to which we have made a detailed
reference earlier, in our view, cannot support such a charge unless it
b indicates prima facie that on that fateful night when the Plant was run
at Bhopal it was run by the accused concerned with the knowledge
that such running of the plant was likely to cause deaths of human
beings. It cannot be disputed that ere act of running a Plant as per the
permission granted by the authorities would not be a criminal act.
c Even assuming that it was a defective Plant and it was dealing with a
very toxic and hazardous substance like MIC the mere act of storing
such a material by th accused in Tank NO. 610 could not even prima
facie suggest that the accused concerned thereby had knowledge that
they were likely to cause death of human beings. In fairness to the
prosecution it was not suggested and could not be suggested that the
d
accused had an intention to kill any human being while operating the
Plant. Similarly on the aforesaid material placed on record it could not
be even prima facie suggested that the accused had an intention to kill
any human being while operating the Plant. Similarly on the aforesaid
material placed on record it could not be even prima facie suggested by
the prosecution that any of the accused had a knowledge that by
e
operating the plant on that fateful night whereat such dangerous and
highly volatile substance like MIC was stored they had the knowledge
that by this very act itself they were likely to cause death of any
human being. Consequently, in our view taking the entire material as
aforesaid on its face value and assuming it to represent the correct
f factual position in connection with the operation of the Plant at
Bhopal on that fateful night it could not be said that the said material
even prima facie called for framing of a charge against the accused
concerned under Section 304 Part II IPC on the specious plea that the
said act of the accused amounted to culpable homicide only because the
g operation of the Plant on that night ultimately resulted in deaths of a
number of human beings and cattle. It is also pertinent to note that
when the complaint was originally filed suo motu by the police
authorities at Bhopal and the criminal case was registered at the Police
Station Hanumanganj, Bhopal as Case No. 1104 of 1984 it was
h registered under Section 304-A of the IPC. We will come to that
provision a little later. Suffice it to say at this stage that on the entire
material produced by the prosecution in support of the charge it could
78 ACQUITTAL AND BAIL CASES ABC 2016(I)
not be said even prima facie that it made the accused liable to face the
charge under Section 304 Part-II. In this connection we may refer to
a decision of the Calcutta High Court to which our attention was a
drawn by the learned Senior Counsel, Shri Rajendra Singh for the
appellants. In the case of Adam Ali Taluqdar v. King- Emperor a
Division Bench of the Calcutta High Court made the following
pertinent observations which interpreting Section 304 Part-II read
with Section 34 IPC : b
"Although to constitute an offence under Section 304, Part
2, there must be no intention of causing death or such injury as the
offender knew as likely to cause death, there must still be a common
intention to do an action with the knowledge that it is likely to cause
death though without the intention of causing death. Each of the c
assailants may know that the act, they are jointly doing, is one that
is likely to cause death but have no intention to causing death, yet
they may certainly have the common intention to do that act and
therefore Section 34 can apply to a case under Section 304, Part2."
d
13. Thus, bearing in mind the principles laid down by the
Supreme Court in the afore-noted cases, it could be said that at the
stage of Sections 227 and 228 of the Code, it is permissible for the
Court to evaluate the materials and documents on record with a view
to finding out if the facts emerging therefrom taken at their face value
discloses existence of all the ingredients constituting the alleged e
offence. It is permissible for the Court for this limited purpose to sift
the evidence, as it cannot be expected even at that initial stage to
accept all that the prosecution states as a gospel truth, even if it is
opposed to the common sense or the broad probabilities of the case.
14. Applying the aforesaid test, I may now consider first f
whether Section 304 IPC is attracted in the present case or not.
However, before I undertake this exercise, I may highlight few facts
emerging from the materials on record, which are not in dispute.
(a) The bus was being driven by the original accused No.1,
g
while the accused No.2 was the cleaner of the bus.
(b) The accused No.3 is serving in the school as a bus
supervisor.
(c) The applicant herein has been arraigned as an accused in
his capacity as the trustee/principal of the school. h

15. The relevant portion of Section 304 of the IPC reads as under:-
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 79
"Whoever commits culpable homicide not amounting to
murder shall be punished with ... and shall also be liable to fine, if the
a 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 ...... if the act is done with the knowledge that it is
likely to cause death, but without any intention to cause death or to
cause such bodily injury as is likely to cause death."
b
16. A plain reading of the above Section makes it clear that it is
in two parts. The first part of the Section is generally referred to as
"Section 304 Part-I", whereas the second part as "Section 304, Part-II". It
would thus, appear that if such bodily injury as is likely to cause death
c is intentionally caused and results in the death of the victim, the case
would fall under Part-I and not under Part-II. Stated differently, Part-II
comes into play when death is caused by doing an act with the
knowledge that it is likely to cause death and when such act is the
infliction of a bodily injury, the infliction must not be intentional. A
d person who intentionally causes the bodily injury with knowledge that
such act is likely to cause death must necessarily be a person who does
an act with the intent to cause bodily injury likely to result in death.
17. The Makers of the Code observed:
"The most important consideration upon a trial for this
offence is the intention or knowledge with which the act which
e
caused death, was done. The intention to cause death or the
knowledge that death will probably be caused, is essential and is that
to which the law principally looks. And it is of the utmost
importance that those who may be entrusted with judicial powers
should clearly understand that no conviction ought to take place,
f unless such intention or knowledge can from the evidence be
concluded to have really existed".
18. The Makers further stated:
"It may be asked how can the existence of the requisite
g intention or knowledge be proved, seeing that these are internal and
invisible acts of the mind? They can be ascertained only from
external and visible acts. Observation and experience enable us to
judge of the connection between men's conduct and their intentions.
We know that a sane man does not usually commit certain acts
h heedlessly or unintentionally and generally we have no difficulty in
inferring from his conduct what was his real intention upon any
given occasion".
80 ACQUITTAL AND BAIL CASES ABC 2016(I)
19. Let me now look into Section 304A of the IPC and compare
it with Section 304 IPC.
a
20. Section 304A was inserted by the Indian Penal Code
(Amendment) Act, 1870 (Act XXVII of 1870) and reads thus:
304A. 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 b
imprisonment of either description for a term which may extend to
two years, or with fine, or with both.
21. The section deals with homicidal death by rash or
negligent act. It does not create a new offence. It is directed against
the offences outside the range of Sections 299 and 300, IPC and covers c
those cases where death has been caused without 'intention' or
'knowledge'. The words "not amounting to culpable homicide" in the
provision are significant and clearly convey that the section seeks to
embrace those cases where there is neither intention to cause death,
nor knowledge that the act done will in all probability result into d
death. It applies to acts which are rash or negligent and are directly
the cause of death of another person.
22. Thus, there is a fine distinction between Section 304 and
Section 304A. Section 304A carves out cases where death is caused
by doing a rash or negligent act which does not amount to culpable e
homicide not amounting to murder within the meaning of Section 299
or culpable homicide amounting to murder under Section 300, IPC. In
other words, Section 304A excludes all the ingredients of Section 299
as also of Section 300. Where intention or knowledge is the
'motivating force' of the act complained of, Section 304A will have to f
make room for the graver and more serious charge of culpable
homicide not amounting to murder or amounting to murder as the
facts disclose. The section has application to those cases where there is
neither intention to cause death nor knowledge that the act in all
probability will cause death. g
23. In Empress v. Idu Beg, (1881) ILR 3 All 776, Straight, J.
made the following pertinent observations which have been quoted
with approval by various Courts including the Supreme Court:
"Criminal rashness is hazarding a dangerous or wanton act h
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
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 81
be caused. The criminality lies in running the risk of doing such an
act with recklessness or indifference as to the consequences. Criminal
a 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
b adopted".
24. Though the term 'negligence' has not been defined in the
Code, it may be stated that negligence is the omission to do
something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs
c
would do, or doing something which a reasonable and prudent man
would not do. [See Mahadev Prasad Kaushik Vs. State of U.P - AIR
2009 SC 125].
25. In the aforesaid context, I may quote with profit a decision
d of the Supreme Court in the case of Naresh Giri Vs. State of M.P.,
reported in (2008) 1 SCC (Cri.) 324. In the said case, a bus was going
from Ahrauli towards Kailaras. While it was near a Railway crossing,
an accident took place. A train hit the bus at the railway crossing. In
the accident, the bus which was being driven by the appellant was
badly damaged and as a result of the accident, several passengers got
e injured and two persons died. After completion of the investigation,
charge-sheet was filed. The charges were framed in relation to the
offence punishable under Section 302 IPC and alternatively, under
Sections 304, 325 and 323 of the Penal Code. Questioning the
correctness of the charges framed, the revision petition was filed. The
f case of the appellant was that Section 302 IPC had no application to
the facts of the case. The High Court rejected the plea of the appellant.
The High Court was of the view that on the basis of the material
available, the charges were rightly framed and the intention of the
appellant could be gathered at the time when the evidence would be
g adduced. It was his case that at the best Section 304A IPC would be
attracted.
26. In the aforesaid background, the Supreme Court made the
following observations, which are worth taking note of.
7. Section 304-A IPC applies to cases where there is no
h
intention to cause death and no knowledge that the act done, in all
probabilities, will cause death. This provision is directed at offences
82 ACQUITTAL AND BAIL CASES ABC 2016(I)
outside the range of Sections 299 and 300 IPC. Section 304-A
applies only to such acts which are rash and negligent and are
directly the cause of death of another person. Negligence and a
rashness are essential elements under Section 304-A.
8. Section 304-A carves out a specific offence where death is
caused by doing a rash or negligent act and that act does not amount
to culpable homicide under Section 299 or murder underSection 300.
b
If a person wilfully drives a motor vehicle into the midst of a crowd
and thereby causes death to some person, it will not be a case of mere
rash and negligent driving and the act will amount to culpable
homicide. Doing an act with the intent to kill a person or knowledge
that doing an act was likely to cause a person's death is culpable
c
homicide. When the intent or knowledge is the direct motivating
force of the act, Section 304-A has to make room for the graver and
more serious charge of culpable homicide. The provision of this
section is not limited to rash or negligent driving. Any rash or
negligent act whereby death of any person is caused becomes
punishable. Two elements either of which or both of which may be d
proved to establish the guilt of an accused are rashness/negligence, a
person may cause death by a rash or negligent act which may have
nothing to do with driving at all. Negligence and rashness to be
punishable in terms of Section 304-A must be attributable to a state
of mind wherein the criminality arises because of no error in
judgment but of a deliberation in the mind risking the crime as well e
as the life of the person who may lose his life as a result of the crime.
Section 304-A discloses that criminality may be that apart from any
mens rea, there may be no motive or intention still a person may
venture or practice such rashness or negligence which may cause the
death of other. The death so caused is not the determining factor. f
9. What constitutes negligence has been analysed in
Halsbury's Laws of England (4th Edition) Volume 34 paragraph 1
(para 3) as follows :
"Negligence is a specific tort and in any given g
circumstances is the failure to exercise that care which the
circumstances demand. What amounts to negligence depends on the
facts of each particular case. It may consist in omitting to do
something which ought to be done or in doing something which
ought to be done either in a different manner or not at all. Where
h
there is no duty to exercise care, negligence in the popular sense has
no legal consequence, where there is a duty to exercise care,
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 83
reasonable care must be taken to avoid acts or omissions which can
be reasonably foreseen to be likely to cause physical injury to persons
a or property. The degree of care required in the particular case
depends on the surrounding circumstances, and may vary according
to the amount of the risk to be encountered and to the magnitude of
the prospective injury. The duty of care is owed only to those persons
who are in the area of foreseeable danger, the fact that the act of the
b defendant violated his duty of care to a third person does not enable
the plaintiff who is also injured by the same act to claim unless he is
also within the area of foreseeable danger. The same act or omission
may accordingly in some circumstances involve liability as being
negligent although in other circumstances it will not do so. The
c material considerations are the absence of care which is on the part of
the defendant owed to the plaintiff in the circumstances of the case
and damage suffered by the plaintiff, together with a demonstrable
relation of cause and effect between the two".
10. In this context the following passage from Kenny's
d Outlines of Criminal Law, 19th Edition (1966) at page 38 may be
usefully noted :
"Yet a man may bring about an event without having
adverted to it at all, he may not have foreseen that his actions would
have this consequence and it will come to him as a surprise. The
event may be harmless or harmful, if harmful, the question rises
e
whether there is legal liability for it. In tort, (at common law) this is
decided by considering whether or not a reasonable man in the same
circumstances would have realised the prospect of harm and would
have stopped or changed his course so as to avoid it. If a reasonable
man would not, then there is no liability and the harm must lie
f where it falls. But if the reasonable man would have avoided the
harm then there is liability and the perpetrator of the harm is said to
be guilty of negligence. The word 'negligence' denotes, and should be
used only to denote, such blameworthy inadvertence, and the man
who through his negligence has brought harm upon another is under
g a legal obligation to make reparation for it to the victim of the injury
who may sue him in tort for damages. But it should now be
recognized that at common law there is no criminal liability for harm
thus caused by inadvertence. This has been laid down authoritatively
for manslaughter again and again. There are only two states of mind
h which constitute mens rea and they are intention and recklessness.
The difference between recklessness and negligence is the difference
between advertence and inadvertence they are opposed and it is a
84 ACQUITTAL AND BAIL CASES ABC 2016(I)
logical fallacy to suggest that recklessness is a degree of negligence.
The common habit of lawyers to qualify the word "negligence" with
some moral epithet such as 'wicked' 'gross' or 'culpable' has been a
most unfortunate since it has inevitably led to great confusion of
thought and of principle. It is equally misleading to speak of criminal
negligence since this is merely to use an expression in order to
explain itself."
b
11. "Negligence", says the Restatement of the law of Torts
published by the American Law Institute (1934) Vol. I. Section 28
"is conduct which falls below the standard established for the
protection of others against unreasonable risk of harm". It is stated
in Law of Torts by Fleming at page 124 (Australian Publication
1957) that this standard of conduct is ordinarily measured by what c
the reasonable man of ordinary prudence would do under the
circumstances. In Director of Public Prosecutions v. Camplin (1978)
2 All ER 168 it was observed by Lord Diplock that "the reasonable
man" was comparatively late arrival in the laws of provocation. As
the law of negligence emerged in the first half of the 19th century it d
became the anthropomorphic embodiment of the standard of care
required by law. In order to objectify the law's abstractions like
"care" "reasonableness" or "foreseeability" the man of ordinary
prudence was invented as a model of the standard of conduct to
which all men are required to conform.
e
12. In Syed Akbar v. State of Karnataka, (1980) 1 SCC 30, it
was held that "where negligence is an essential ingredient of the
offence, the negligence to be established by the prosecution must be
culpable or gross and not the negligence merely based upon an error
of judgment.As pointed out by Lord Atkin in Andrews v. Director of
f
Public Prosecutions ((1937) (2) All ER 552) simple lack of care such
as will constitute civil liability, is not enough; for liability under the
criminal law a very high degree of negligence is required to be
proved. Probably, of all the epithets that can be applied 'reckless'
most nearly covers the case."
g
13. According to the dictionary meaning 'reckless' means
'careless', 'regardless' or heedless of the possible harmful
consequences of one's acts'. It presupposes that if thought was given
to the matter by the doer before the act was done, it would have been
apparent to him that there was a real risk of its having the relevant
h
harmful consequences; but, granted this, recklessness covers a whole
range of states of mind from failing to give any thought at all to
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 85
whether or not there is any risk of those harmful consequences, to
recognizing the existence of the risk and nevertheless deciding to
a ignore it. In R. v. Briggs (1977) 1 All ER 475 it was observed that
a man is reckless in the sense required when he carries out a
deliberate act knowing that there is some risk of damage resulting
from the act but nevertheless continues in the performance of that
act.
b
14. In R. v. Caldwell (1981) 1 All ER 961, it was observed that :-
"Nevertheless, to decide whether someone has been
'reckless', whether harmful consequences of a particular kind will
result from his act, as distinguished from his actually intending such
c harmful consequences to follow, does call for some consideration of
how the mind of the ordinary prudent individual would have reacted
to a similar situation. If there were nothing in the circumstances that
ought to have drawn the attention of an ordinary prudent individual
to the possibility of that kind of harmful consequence, the accused
would not be described as 'reckless' in the natural meaning of that
d
word for failing to address his mind to the possibility; nor, if the risk
of the harmful consequences was so slight that the ordinary prudent
individual on due consideration of the risk would not be deterred
from treating it as negligible, could the accused be described as
reckless in its ordinary sense, if, having considered the risk, he
decided to ignore it. (In this connection the gravity of the possible
e
harmful consequences would be an important factor. To endanger life
must be one of the most grave). So, to this extent, even if one ascribes
to 'reckless' only the restricted meaning adopted by the Court of
Appeal in Stephenson and Briggs, of foreseeing that a particular kind
of harm might happen and yet going on to take the risk of it, it
f involves a test that would be described in part as 'objective' in
current legal jargon. Questions of criminal liability are seldom
solved by simply asking whether the test is subjective or objective."
15. The decision of R. v Caldwell (supra) has been cited with
approval in R v. Lawrence (1981) 1 All ER 974 and it was observed
g
that :
"........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
h
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
86 ACQUITTAL AND BAIL CASES ABC 2016(I)
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 a
the act, he either fails to give any thought to the possibility of there
being any such risk or, having recognized that there was such risk,
he nevertheless goes on to do it".
14A. Normally, as rightly observed by the High Court
b
charges can be altered at any stage subsequent to the framing of
charges. But the case at hand is one where prima facie Section
302IPC has no application."
27. In the overall facts of the case, I have reached to the
conclusion that the case on hand is not one of voluntary commission c
of offence against a person. The harmfulness inflicted intentionally or
knowingly or caused directly and wilfully would attract Section 304
IPC. I am of the view that the mere act of driving a vehicle mindful of
the fact that the same needed some immediate repairs would not be a
criminal act. Prima-facie it appears that the driver as well as the d
cleaner were in knowledge of the fact that there was a cavity beneath
the seat on which unfortunately the deceased was sitting, and despite
such knowledge the driver and the cleaner kept on plying the vehicle.
However, that by itself would not suggest that they had knowledge
that by plying a defective vehicle they were in all probability likely to
cause death of any student travelling in the bus. Yes, they could e
definitely be held liable for a rash or a negligent act, punishable
underSection 304A of the IPC, if ultimately necessary evidence in that
regard comes on record at the time of the trial.
28. In the aforesaid context, the observations made by the
Supreme Court in the case of Keshub Mahindra Vs. State of Madhya f
Pradesh (supra) are very relevant. I have quoted the observations
made in paragraphs 19 and 20 in the earlier part of my judgment and
therefore, I need not reiterate the same.
29. The above takes me to the question whether the applicant
g
herein should face the charge underSection 304A of the IPC or not.
30. In a prosecution for an offence under Section 304A of the
IPC, the Court has to examine whether the alleged act of the accused
is the direct result of a rash and negligent act, and that act was the
proximate and efficient cause of the death without the intervention of h
others' negligence. To put it in other words, whether the mere fact
that the applicant herein as the Chief Administrator of the school
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 87
failed to take appropriate care to ensure the safety of the students by
permitting the defective bus to be plied by itself is sufficient to
a
establish an offence under Section 304A IPC. The answer to this
question will determine whether the applicant's act as alleged by the
prosecution is the causa causans or has there been a causa
interveniens, which has broken the chain of causation so as to make
his act, though a negligent one, not the immediate cause or whether it
b amounts to an act of gross negligence or recklessly negligent conduct.
In this context, it may be observed that in a case of this nature, the
death of a small child aged four however, shocking and regrettable it
may be, ought not to allow the mind to boggle while considering the
aforesaid question.
c
As to what is meant by causa causans, has been explained by
the Supreme Court in the case of Sushil Ansal v. State through
Central Bureau of Investigation, (2014)6 SCC 173, as under :
“As to what is meant by causa causans we may gainfully
d refer to Blacks Law Dictionary (Fifth Edition) which defines that
expression as under:
“Causa causans. - The immediate cause; the last link
in the chain of causation.”
The Advance Law Lexicon edited by Justice Chandrachud,
former Chief Justice of India defines Causa causans as follows:
e
“Causa causans. - The immediate cause as opposed
to a remote cause; the last link in the chain of causation; the
real effective cause of damage”
The expression proximate cause is defined in the 5th Edition
f of Blacks Law Dictionary as under:
Proximate cause. - That which in a natural and continuous
sequence unbroken by any efficient, intervening cause, produces
injury and without which the result would not have occurred.
Wisniewski vs. Great Atlantic & Pacific Tea Company, 226 Pa.
g Super 574 : 323 A2d 744 (1974), A2d at p.748. That which is
nearest in the order of responsible causation. That which stands next
in causation to the effect, not necessarily in time or space but in
causal relation. The proximate cause of an injury is the primary or
moving cause, or that which in a natural and continuous sequence,
h unbroken by any efficient intervening cause, produces the injury and
without which the accident could not have happened, if the injury be
one which might be reasonably anticipated or foreseen as a natural
88 ACQUITTAL AND BAIL CASES ABC 2016(I)
consequence of the wrongful act. An injury or damage is proximately
caused by an act, or a failure to act, whenever it appears from the
evidence in the case, that the act or omission played a substantial a
part in bringing about or actually causing the injury or damage; and
that the injury or damage was either a direct result or a reasonably
probable consequence of the act or omission.”
I may also refer to the earlier decision of the Supreme Court in b
Kurban Hussein Mohamedalli Rangawalla Vs. State of Maharashtra,
AIR 1965 S.C. 1616. On the interpretation of Section 304-A, holding:
“4. We may in this connection refer to Experor V. Omkar
Rampratap, 4 Bom LR 679, where Sir Lawrence Jenkins had to
interpret S. 304-A and observed as follows: c
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 anothers negligence. It d
must be the causa causans; it is not enough that it may have
been the causa 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
S.304-A. It is not necessary to refer to other decisions, for as we have
e
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 S.304-A, for the fire would not have taken place, with the
result that seven persons were burnt to death, without the negligence f
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 proximate and efficient cause without the
intervention of anothers negligence. The appellant must, therefore,
be acquitted of the offence under S.304-A. g

In my view, having regard to the materials on record, the

incident in this case cannot be treated as a direct and proximate cause
of the negligence, even if I assume one on the part of the applicant
herein in not getting the defective bus repaired. Many other factors
might have resulted in the unfortunate incident. It was the Driver and h
the Cleaner who were actually handling the bus. If little care would
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 89
have been taken by the Cleaner to ensure that no student occupied the
seat beneath which there was a cavity, then probably this incident
a
would not have occurred. Therefore, the alleged negligence from the
part of the applicant herein cannot be regarded as the causa causans.
Although it may be a causa sine qua non.
31. It must be pointed out that rashness and negligence are not
b the same things. Mere negligence cannot be construed to mean
rashness. There are degrees of negligence and rashness and 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
c
running the risk or doing such an act with recklessness and
indifference to the consequences. Criminal negligence is gross and
culpable neglect, that is to say, a failure to exercise that care and
failure to take that precaution which, having regard to the
circumstances, it was the imperative duty of the individual to take.
d
Culpable rashness is acting with consciousness that mischievous
consequences are likely to follow although the individual hopes, even
though he hopes sincerely, that such consequences may not follow.
The criminality lies in not taking the precautions to prevent the
happening of the consequences in the hope that they may not happen.
The law, in my view, does not permit a man to be un-cautious on a
e
hope however earnest or honest that hope may be.
32. In the case of - 'A. W. Lazarus v. The State', AIR 1953 All
72 (A), a Bench of the Allahabad High Court held, following the
decisions in - 'Empress of India v. Idu Beg', 3 All 776 (B) and - 'H.W.
f Smith v. Emperor', AIR 1926 Cal 300 (C), that criminal rashness
means hazarding a dangerous or wanton act with the knowledge that
it is dangerous or wanton and the further knowledge that it may
cause injury but done without any intention to cause injury or
knowledge that it would probably be caused. It was pointed out that
g the criminality in such a case lay in running the risk of doing such an
act with recklessness or indifference as to the consequences. The
Bench further held that the criminal negligence under Section 304-A,
I.P.C. was gross and culpable neglect of failure to exercise that
reasonable and proper care and to take precautions to guard against
h injury either to the public generally or to an individual in particular,
which, having regard to all the circumstances attending the charge, it
was the imperative duty of the accused person to have adopted.
90 ACQUITTAL AND BAIL CASES ABC 2016(I)
Another important element which goes to make the offence is that the
act of the accused must be found to be the immediate cause of the
a
death, that is to say, the act and the death must be 'causa causans'.
33. I may here refer to a very instructive judgment of the
House of Lords in - 'Andrews v. Director of Public Prosecutions',
1937-2 All ER 552 (D). In this case Lord Atkin reviewed several of the
earlier cases and delivered the leading opinion of the House. Lord b
Atkin pointed cut that the connotations of 'mens rea' are not helpful
in distinguishing between degrees of negligence, nor do the ideas of
crimes and punishments in themselves carry a jury much further in
deciding whether, in a particular case, the degree of negligence
shown is a crime and deserves punishment. According to Lord Atkin, c
"the principle to be observed is that cases of manslaughter in driving
motor cars are but instances of a general rule applicable to all charges
of homicide by negligence. 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 d
negligence is required to be proved before the felony is established."
34. Lord Atkin observed that the most appropriate epithet
which can be applied to such cases is "reckless". He further pointed
out that "it is difficult to visualise a case of death caused by "reckless"
driving, in the connotation of that term in ordinary speech, which
would not justify a conviction for manslaughter, but it is probably not e
all-embracing, for "reckless" suggests an indifference to risk, whereas
the accused may have appreciated the risk, and intended to avoid it,
and yet shown in the means adopted to avoid the risk such a high
degree of negligence as would justify a conviction."
f
35. In an earlier case Lord Ellenborough had pointed out that
to substantiate the charge of manslaughter the prisoner must be
found to have been guilty of criminal misconduct arising either from
the grossest ignorance or the most criminal inattention. Lord Atkin
explained this observation of Lord Ellenborough in these words : g
"The word "criminal" in any attempt to define a crime is
perhaps not the most helpful, but it is plain that Lord Ellenborough
meant to indicate to the jury a high degree of negligence."
36. Attention was also drawn by Lord Atkin to a passage in a
considered judgment of Lord Hewart, Lord Chief Justice the passage h
to which attention was drawn was this:
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 91
"In a criminal Court, on the contrary, the amount and
degree of negligence are the determining questions. There must be
a 'mens rea'."
But, as was pointed out by Lord Atkin, the connotation of
mens rea do not always prove helpful in determining the guilt of an
accused in a particular case.
b 37. The essence of criminal liability under Section 304-A IPC is
culpable rashness or negligence and not any rashness or negligence.
The difference between the two is what marks off a civil from a
criminal liability. The distinction is often an intricate matter and
depends on the particular time, place and circumstances. In civil law
c negligence means inadvertence, which, if it resulted in injurious
consequences to person or property, may involve liability to
compensate for the damage. In Halsbury's Laws of England, 3rd Edn.
Vol. 28, paragraph 1, it is stated :
''Negligence is a specific tort and in any given
d circumstances is the failure to exercise that care with which the
circumstances demand. What amounts to negligence depends on
the facts of each particular case and the categories of negligence are
never closed. It may consist in omitting to do something which ought
to be done or in doing something which ought to be done, either in a
different manner or not at all. Where there is no duty to exercise
e care, negligence in the popular sense has no legal consequence.
Where there is a duty to exercise care, reasonable care must be taken
to avoid acts or omissions which can be reasonably foreseen to be
likely to cause physical injury to persons or property. The degree of
care required in the particular case depends on the accompanying
f circumstances, and may vary according to the amount of the risk to
be encountered and to the magnitude of the prospective injury."
38. The consequence flows from a state of mind which is blank
or devoid of any advertence, and the liability for such consequence is
to be judged from the standpoint of reasonable foreseeability and the
g failure to exercise the care which such foreseeability necessarily
implies. That I conceive to be the principle of tortious liability for
negligence. Kenny in his "Outlines of Criminal Law'' at page 29
observes,
"But if the reasonable man would have avoided the harm
h
then there is liability and the perpetrator of the harm is said to be
guilty of negligence. The word 'negligence', therefore, in our
92 ACQUITTAL AND BAIL CASES ABC 2016(I)
jurisprudence is used to denote blameworthy inadvertence, and the
man who through his negligence has brought harm upon another is
under a legal obligation to make reparation for it to the victim of the a
injury, who may sue him in tort for damages. But it should now be
recognised that at common law there is no criminal liability for harm
thus caused by inadvertence.................The truth may be that he did
not foresee the consequences as a reasonable man would have done,
and that he was negligent in the true sense of the word, and therefore b
civilly, although not criminally, liable."
39. Kenny further points out that for criminal liability for
negligence, there must be something more than such blameworthy
inadvertence. This aspect is also adverted to in paragraph 1374 of
c
Halsbury's Laws of England, 3rd Edn. Volume 10,
"A higher degree of negligence is necessary to render a
person guilty of manslaughter than to establish civil liability against
him. Mere carelessness is not enough. Negligence in order to render
a person guilty of manslaughter must be more than a matter of d
compensation between subjects; it must show such disregard for the
life and safety of others as to amount to a crime against the State.
Whether negligence is to be regarded as of such a nature is a question
for the jury, after they have been properly directed by the Judge as
to the standard to be applied, and depends on the facts of the
particular case. The number of persons affected by a single act of
e
negligence does not affect the decree of negligence."
40. While on this aspect, it is also instructive to refer to two
English cases. Rex v. Williamson, 1807-3 C and P 635, was a case
where a man who practised as an accoucheur, owing to a mistake in
his observation of the actual symptoms, inflicted on a patient terrible f
injuries from which she died. After pointing out that in a civil case
once negligence was proved, the degree of negligence was irrelevant,
Lord Ellenborough, the Lord Chief Justice, said.
"In a criminal court, on the contrary, the amount and degree
of negligence are the determining questions. There must be mens g
rea........ In explaining to juries the test which they should apply to
determine whether the negligence in a particular case, amounted or
did not amount to a crime, Judges have used epithets such as
'culpable', 'criminal', 'gross', 'wicked', 'clear', 'complete'. But
whatever epithet be used and whether an epithet be used or not, in h
order to establish criminal liability the facts must be such that, in the
opinion of the jury, the negligence of the accused went beyond a mere
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 93
matter of compensation between subjects and showed such disregard
for the life and safety of others, as to amount to a crime against the
a State and conduct deserving punishment."
41. Mere negligence or rashness is, therefore, not enough to
bring a case within the ambit of Section 304A I. P. C. Negligence or
rashness proved by evidence must be such as should necessarily carry
b
with it a criminal liability. Whether such liability is present may
depend on the degree of culpability having regard in each case to the
particular time, place and circumstances. If it is merely a case of
compensation or reparation for injury or damage caused to a person
or property, it is clearly not punishable under either of the sections.
The culpability to be criminal should be such as concerns not merely
c
the person injured or property damaged but the safety of the public
on the road. But the nature and extent of the injury or damage will be
irrelevant in fixing criminal liability for negligence under the sections.
42. I may quote with profit the case of Ambalal D. Bhatt Vs.
d State of Gujarat, reported in (1972) 3 SCC 525, wherein the following
observations made by the Supreme Court are worth taking note of.
8. The learned Advocate contends that even if one batch
number was given to several lots prepared on 12-11-62 as was done
in respect of batch no 211105, the evidence discloses that this was
not an isolated case but such practice was uniformly followed in S.
e C. L. Ltd. for which the appellant could not alone be held liable. In
the circumstances the non- compliance with the rules for giving a
batch number to every lot does not make the act of the appellant the
causa causans of the death of the persons who were injected with
glucose saline prepared by him because it was not only the duty of
f the Analyst Prabhakaran to test the material before they are issued to
the injection department but also to test the solution in such a way
as would trace lead nitrate in the sodium chloride content of the
solution. As Prabhakaran had not applied the proper test and that
too knowing fully well that several lots were given one batch
g number, he cannot be absolved of his responsibility to take
representative samples for testing them instead of testing only one
bottle out of 450 bottles comprising batch no. 211105. On this
premise it is contended that thoughsection 304A covers various
fields of activity, an offence is committed only if a person charged is
h shown to have neglected to take such action as he is reasonably
expected to take to avoid injury to others and that such reasonable
steps that are expected to be taken by him should show that there was
94 ACQUITTAL AND BAIL CASES ABC 2016(I)
a failure to take such elementary steps it was necessary for him to
take. Inasmuch as in all cases under section 304A there is a casual
chain which consists of many links, it is only that which contributes a
to the cause of all causes, namely, the causa causans and not causa
sine qua non which fixes the capability. In other words, it is
submitted that it is not enough for the prosecution to show that the
appellant's action was one of the causes of death. It must show that it
is the direct consequence, which in this case has not been established. b
On the other hand, according to the learned Advocate the appellant
is separated by two important steps which intervene before the
glucose saline is sold for being administered to the needy. These are :
(1) that not only should the materials be tested but the solution
should be tested properly to detect the dangerous components of the c
preparation which was the duty of the Chief Analyst; and (2) that the
production report and the analysis report have to be seen by the
Production Superintendent who is to satisfy himself that proper tests
have been carried out before certifying them for sale. The persons
who are directly responsible for the saline solution to be certified for d
sale are the Chief Analyst as well as the Production Superintendent
and not the appellant.
9. It is, however, the case of respondent State that had the
appellant not given a single batch number to all the four lots when
he prepared the offending glucose saline, the analysis by the Chief
Analyst would analysis by the Chief Analyst would have certainly e
discovered the heavy deposits of lead nitrate in the sodium chloride
and the lot which contained this would have been rejected. As the
appellant has been negligent in conforming to the rules, the deaths
were the direct consequence of that negligence.
10. It appears to us that in a prosecution for an offence f
under section 304A, 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 g
contravention of the provisions of the Act and the Rules would itself
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 12-11-62 in h
preparing batch no. 211105 was the cause of deaths and whether
those deaths were a direct consequence of the appellant's act that is,
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 95
whether the appellant's act is the direct result of a rash and negligent
act and that act was the proximate and efficient cause without the
a 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 cause causans; it is not enough
that it may have been the causa sine qua non". This view has been
adopted by this Court in several decisions.In Kurban Hussein
b Mohem-medali Rangwala v. State of Maharashtra, 1965-2 SCR 622
= (AIR 1965 SC 1616), the accused who had manufactured wet
paints without a licence was acquitted of the charge under section
304A because it was held that the mere fact that he allowed the
burners to be used in the same room in which varnish and
c 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
d fire which broke out, but was also due to the overflowing of froth out
of the barrels. In Suleman Rahiman Mulani v. State of Maharashtra
(1968) 2 SCR 515 = (AIR 1968 SC 829) 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 by itself was no sufficient
to warrant a conviction under section 304A. It would be different if
e it can be established as in the case of Balachandra v. State of
Maharashtra, (1968) 3 SCR 766 = (AIR 1968 SC 1319) that deaths
and injuries caused by the contravention of a prohibition in respect
of the substance 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
f
even friction or percussion could cause an explosion, that
contravention would be the causa causans.
11. Bearing these principles in view, what we have to see is :
(1) whether there was contravention of the rule? If so, to what
g extent that contravention by the appellant contributed to the non-
discovery of lead nitrate in sodium chloride content of the glucose
saline in Batch No. 211105? (2) Whether sodium chloride for which
the said solution was prepared was obtained by the appellant from
sources other than the Stores of S. C. I. Ltd.? and (3) Whether the
h method adopted in testing the said batch by Prabhakaran would have,
but for the contravention of the rules requiring the giving of one batch
number to each lot, detected the presence of lead nitrate when he
96 ACQUITTAL AND BAIL CASES ABC 2016(I)
analysed samples of the offending batch of glucose saline prepared by
the accused. The answers to these questions will determine whether
the appellant's act is the causa causans or has there been a cause a
interveniens which has broken the chain of causation so as to make his
act, though a negligent one, not the immediate cause or whether it
amounts to an act of gross negligence or recklessly negligent conduct.
In this context it may be observed that in a case of this nature where as
many as 12 persons lost their lives as a result of the parenteral b
administration of the drug comprised in Batch No. 211105 prepared
by the appellant, those deaths however shocking and regrettable they
may be, ought not to allow the mind to boggle while appreciating the
evidence which must necessarily be free from any such consideration."
43. I may also quote with profit a decision of the Supreme c
Court in the case of Balwant Singh Vs. State of Punjab, reported in
1994 Supp (2) SCC 67. The following observations of the Supreme
Court are worth taking note of.
"8. Then the question would be whether an offence under d
Sec. 304-A, I.P.C, is made out? The provisions of this Section apply
to cases where there is no intention to cause death and no knowledge
that the act done in all probabilities will cause death. Therefore this
provision is directed at offences outside the range of Ss. 299 and 300,
I.P.C. and obviously contemplates those cases into which neither
intention nor knowledge enters. The words "not amounting to
e
culpable homicide" in the Section are very significant and it must
therefore be understood that intentionally or knowingly inflicted
violence directly and wilfully caused is excluded. The Section applies
only to such acts which are rash or negligent and are directly the
cause of death of another person. In other words, a rash act is
primarily an over hasty act as opposed to a deliberate act but done f
without due care and caution. Then the question whether the
conduct of the accused amounted to culpable rashness or negligence
depends on the amount of care and circumspection which a prudent
and reasonable man would consider it to be sufficient and this
depends on the circumstances in each case." g
44. In a very recent pronouncement of the Supreme Court in the
case of Dr. P.B Desai Vs. State of Maharashtra and anr., reported in
AIR 2014 SC 795=ABC 2014 (I) 39 SC, the Supreme Court has explained
in details as to when criminal liability would be attracted in cases of
medical negligence. It is no doubt true that the Supreme Court was h
dealing with an issue whether the role of the appellant as a doctor in
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 97
that case amounted to a rash or a negligent act as to endanger the life
of the patient. The Supreme Court made the following observations:-
a
"(4) Breach of Duty to Take Care: Consequences
42. If the patient has suffered because of negligent act/
omission of the doctor, it undoubtedly gives right to the patient to
sue the doctor for damages. This would be a civil liability of the
b doctor under the law tort and/or contract. This concept of negligence
as a tort is explained in Jacob Mathews v. State of Punjab and
Another 2005(6) SCC1, in the following manner:
10. The jurisprudential concept of negligence defines any
precise definition. Eminent jurists and leading judgments have
c assigned various meanings to negligence. The concept as has been
acceptable to Indian jurisprudential thought is well stated in the
Law of Torts, Ratanlal & Dhirajlal (24th Edn., 2002, edited by
Justice G.P. Singh).
Negligence is the breach of a duty caused by the omission to
d do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human
affairs would do, or doing something which a prudent and reasonable
man would not do. Actionable negligence consists in the neglect of
the use of ordinary care or skill towards a person to whom the
defendant owes the duty of observing ordinary care and skill, by
e which neglect the plaintiff has suffered injury to his person or
property. The definition involves three constituents of negligence: (1)
A legal duty to exercise due care on the part of the party complained
of towards the party complaining the formers conduct within the
scope of the duty; (2) breach of the said; and (3) consequential
f damage. Cause of -action for negligence arises only when damage
occurs; for, damage is a necessary ingredient of this tort.
43. Such a negligent act, normally a tort, may also give rise
to criminal liability as well, though it was made clear by this Court
in Jacobs Case (supra) that jurisprudentially the distinction has to be
g drawn between negligence under Civil Law and negligence under
Criminal Law. This distinction is lucidly explained in Jacobs Case,
as can be seen from the following paragraphs:
12. The term negligence is used for the purpose of fastening
the defendant with liability under the civil law and, at times, under
h the criminal law. It is contended on behalf of the respondents that in
both the jurisdictions, negligence is negligence, and jurisprudentially
98 ACQUITTAL AND BAIL CASES ABC 2016(I)
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 a
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 b
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 Lord c
Diplock spoke in a Bench of five and the other Law Lords agreed with
him. He reiterated his opinion in R. v. Caldwell3 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 d
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 e
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
f
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 g
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.
h
14. In order to hold the existence of criminal rashness or
criminal negligence it shall have to be found out that the rashness
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 99
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
a 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 stated: (All ER p. 556
C) Simple lack of care such as will constitute civil liability is not
b 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
c
required in criminal cases. In Riddell v. Reid4a (AC at p. 31) Lord
Porter said in his speech µ A higher degree of negligence has always
been demanded in order to establish a criminal offence than is
sufficient to create civil liability.

d 15. The fore-quoted statement of law in Andrews has been

noted with approval by this Court inSyad Akbar v. State of
Karnataka. The Supreme Court has dealt with and pointed out with
reasons the distinction between negligence in civil law and in
criminal law. Their Lordships have opined that there is a marked
difference as to the effect of evidence viz. the proof, in civil and
e
criminal proceedings. In civil proceedings, a mere preponderance of
probability is sufficient, and the -- defendant is not necessarily
entitled to the benefit of every reasonable doubt; but in criminal
proceedings, the persuasion of guilt must amount to such a moral
certainty as convinces the mind of the Court, as a reasonable man,
beyond all reasonable doubt. Where negligence is an essential
f
ingredient of the offence, the negligence to be established by the
prosecution must be culpable or gross and not the negligence merely
based upon an error of judgment.
44. Thus, in the civil context while we consider the moral
g implications of negligent conduct, a clear view of the state of mind of
the negligent doctor might not require strictly. This is for the reason
the law of tort is ultimately not concerned with the moral culpability
of the defendant, even if the language of fault is used in determining
the standard of care. From the point of view of civil law it may be
appropriate to impose liability irrespective of moral blameworthiness.
h
This is because in civil law two questions are at issue: Was the
defendant negligent? If so, should the defendant bear the loss in this
100 ACQUITTAL AND BAIL CASES ABC 2016(I)
particular set of circumstances? In most cases where negligence
has been established, the answer to the second question will be in the
affirmative, unless the doctrine of remoteness or lack of foresee ability a
militates against a finding of liability, or where there is some policy
reason precluding compensation. The question in the civil context is,
therefore, not about moral blame, even though there will be many
cases where the civilly liable defendant is also morally culpable.
b
(5) Criminal Liability : When attracted
45. It follows from the above that as far as the sphere of
criminal liability is concerned, as mens rea is not abandoned, the
subjective state of mind of the accused lingers a critical
consideration. In the context of criminal law, the basic question is c
quite different. Here the question is: Does the accused deserve to be
punished for the outcome caused by his negligence? This is a very
different question from the civil context and must be answered in
terms of mens rea. Only if a person has acted in a morally culpable
fashion can this question be answered positively, at least as far as
d
non strict liability offenses are concerned.
46. The only state of mind which is deserving of punishment
is that which demonstrates an intention to cause harm to others, or
where there is a deliberate willingness to subject others to the risk of
harm. Negligent conduct does not entail an intention to cause harm,
but only involves a deliberate act subjecting another to the risk of e
harm where the actor is aware -of the existence of the risk and,
nonetheless, proceeds in the face of the risk. This, however, is the
classic definition of recklessness, which is conceptually different from
negligence and which is widely accepted as being a basis for criminal
liability." f
45. For the foregoing reasons, I am of the view that so far as
the applicant herein is concerned, he stands on a different footing as
compared to the other accused. The only material against him in the
entire charge-sheet is a statement to the effect that in the periodical
meetings between the parents and the management of the school, the g
issue as regards the poor condition of the buses being plied to pick up
and drop the students was discussed, but the same was not paid heed
to. On such allegations, the applicant herein is sought to be put to trial
for the offence of culpable homicide not amounting to murder and in
the alternative for the offence under Section 304A IPC. In my view, h
the applicant should not be asked to face the trial either for the
offence of a rash or a negligent act punishable under Section 304A of
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 101
the IPC or Section 304 IPC. The persons who could be said to be
directly responsible for the unfortunate death of the student are the
a
driver of the vehicle, including the cleaner. This observation, of
course, is prima-facie and subject to the evidence that may be led at
the time of the trial. However, the applicant's act of not paying heed
to the requests made by the parents regarding the necessary repairs to
be carried out in the buses cannot be said to be the causa causans, but
b there was a cause interveniens, which broke the chain of causation so
as to make the act of the applicant though a negligent one, not the
immediate cause.
46. At this stage, I may deal with the decision relied upon by
c Mr. Dabhi, the learned APP. The Supreme Court in the case of State of
Maharashtra vs. Salman Salimkhan & Anr. (supra), had the occasion
to consider an identical issue. In the said case, the respondent was
originally charged of an offence punishable under section 304-A, 279,
337, 338, 427, IPC and section 134(a)(b) read with sections 181 and 185
d
of the Motor Vehicles Act, 1998 as also under section 66(1)(b) of the
Bombay Prohibition Act. All these offences are triable by a court of
Magistrate of competent jurisdiction. The charge-sheet, at a later
stage, came to be modified based on the additional statement of the
complainant, and instead of section 304-A, IPC, section 304, Part II,
IPC was substituted which is an offence exclusively triable by a Court
e of Session. The learned Magistrate, who had taken cognizance of the
offence, committed the said case to the Court of Session for trial. On
the framing of the charge under section 304, Part II, IPC, the accused
filed Criminal Application No.463 of 2003 in the Court of Session
alleging that the facts as narrated in the complaint did not constitute
f an offence punishable under section 304, Part II, IPC and if at all, only
a charge for an offence punishable under section 304-A could be
framed against him, apart from other offences triable by the Court of
Magistrate. The said application came to be rejected by the Sessions
Court and the Sessions Judge, thereafter, proceeded to frame charges,
g
one of which, was for an offence punishable under section 304, Part II,
IPC.
47. Being aggrieved by the dismissal of his application and the
consequential framing of charge under section 304, Part II, IPC, the
accused preferred a criminal application under section 482 of the
h Code before the Criminal Appellate Bench of the High Court of
Judicature at Bombay. The High Court allowed the said application
and quashed the order passed by the learned Sessions Judge framing
102 ACQUITTAL AND BAIL CASES ABC 2016(I)
charge under section 304, Part II, IPC against the accused while it
maintained the other charges and directed the Magistrate to frame de
novo charges under various sections including one under section 304- a
A, IPC. 36. The State of Maharashtra, feeling dissatisfied, filed special
leave petition before the Supreme Court and challenged the order
passed by the High Court. The Supreme Court made the following
observations:
b
"Mr. Harish N Salve, learned senior counsel representing
the respondent-accused, per contra, contended that from a plain
reading of the complaint which is the only material available at this
stage for the purpose of framing charges, no reasonable person could
ever have come to the conclusion that the respondent ever had any
knowledge that by his act of driving the motor vehicle, he would c
cause such an act which would lead to the death of any person. He
further submitted that from the material on record itself it is clear
that if at all any act of the respondent is responsible for the death of
the victim same cannot be termed anything other than a rash and
negligent act punishable under section 304A. Learned senior counsel d
further submitted that since the learned Sessions Judge while
rejecting the application of the petitioner filed before it in altering the
charge from section 304 Part II to 304A, IPC, had itself passed a
lengthy order which indicated that the said court had formed a
conclusive opinion as to the nature of offence which definitely would
have prejudiced the case of the respondent in the trial, the High e
Court was left with no choice but to decide this question as to the
nature of offence if at all committed by the respondent.
But for the fact that two courts below i.e. the Sessions Court
and the High Court having gone into this issue at length and having
expressed almost a conclusive opinion as to the nature of offence, we f
would not have interfered with the impugned order of the High
Court because, as stated above, neither of the sides would have been
in any manner prejudiced in the trial by framing of a charge either
under section 304A or section 304 Part II, IPC except for the fact
that the forum trying the charge might have been different, which by g
itself, in our opinion, would not cause any prejudice. This is because
at any stage of the trial it would have been open to the concerned
court to have altered the charge appropriately depending on the
material that is brought before it in the form of evidence. But now by
virtue of the impugned judgment of the High Court even if in the h
course of the trial the Magistrate were to come to the conclusion that
there is sufficient material to charge the respondent for a more
ABC 2016(I) Girishbhai Maganlal Pandya Vs. State of Gujarat(Guj.) 103
serious offence than the one punishable under section 304A, it will
not be possible for it to pass appropriate order. To that extent the
a prosecution case gets preempted.
We are of the opinion that though it is open to a High Court
entertaining a petition under section 482 of the Code to quash
charges framed by the trial court, same cannot be done by weighing
the correctness or sufficiency of evidence. In a case praying for
b
quashing of the charge, the principle to be adopted by the High Court
should be that if the entire evidence produced by the prosecution is to
be believed, would it constitute an offence or not. The truthfulness,
the sufficiency and acceptability of the material produced at the time
of framing of charge can be done only at the stage of trial. By relying
c upon the decisions of the apex Court most of which were with
reference to appeals arising out of convictions, we think the High
Court was not justified in this case in giving a finding as to the non-
existence of material to frame a charge for an offence punishable
under section 304 Part II, IPC, therefore, so far as the finding given
d by the High Court is concerned, we are satisfied that it is too
premature a finding and ought not to have been given at this stage.
At the same time we are also in agreement with the arguments of
learned counsel for the respondents that even the Sessions Court
ought not to have expressed its views in such certain terms which
indicates that the Sessions Court had taken a final decision in regard
e to the material to establish a charge punishable under section 304
Part II, IPC.
Therefore, we think it appropriate that the findings in regard
to the sufficiency or otherwise of the material to frame a charge
punishable under section 304, Part II, IPC of both the courts below
f should be set aside and it should be left to be decided by the court
trying the offence to alter or modify any such charge at an
appropriate stage based on material produced by way of evidence.
The next question which then requires our consideration is
whether in view of our above finding, the charge framed by the
g Sessions Judge for an offence punishable under section 304 Part II,
IPC be sustained or one under section 304A as has been done by the
High Court, should be retained ?
We have been informed that pursuant to the judgment of the
High Court, the Metropolitan Magistrate, 12th Court, Bandra,
h
Mumbai, has already framed fresh charges under section 304A and
other provisions mentioned hereinabove and the trial has commenced.
104 ACQUITTAL AND BAIL CASES ABC 2016(I)
Since any interference at this stage would not further the cause of
justice and would lead only to delay the course of justice, we think it
appropriate that the proceedings before the said Magistrate's Court a
should continue and the trial should proceed on the basis of the
charges framed by it but we make it very clear that at any appropriate
stage if the Magistrate comes to the conclusion that there is sufficient
material to charge the respondent for a more serious offence than the
one punishable under section 304A, he shall proceed to do so without b
in any manner being hindered or influenced by the observations or
findings of the High Court in the impugned order or by the order of
the Sessions Court which framed the charge punishable under section
304 Part II, IPC. Such decision of the Magistrate shall be purely based
on the material brought in evidence at the trial." c
48. The issue before the Supreme Court in the afore-noted case
was whether the accused should face the trial for the offence under
Section 304, Part-II IPC or Section 304A IPC. The Supreme Court took
the view that such issues should be left best to the trial Court to
decide and the Sessions Court or the High Court should not d
undertake such exercise. I am of the view that this decision on which
the learned APP has placed strong reliance is not in any manner
helpful to the State because I am not deciding whether the applicant
herein should face the trial for the offence under Section 304 IPC or
Section 304-A IPC. I have taken the view on the basis of the materials
on record, more particularly, the case against the applicant herein, e
that the applicant deserves to be discharged from the prosecution as a
whole. So far as civil liability is concerned, the school can be held
liable for the tortuous act or liability.
49. Dictating this judgment was a very painful experience. The f
very thought of a four year old child getting crushed beneath the
tyres of his own school bus makes my heart bleed with pain and
agony. I can also imagine the pain and agony the parents of the
deceased must be undergoing even as on today. However, such
thoughts should not allow the mind of a judge to get boggled, g
otherwise justice cannot be done. However, harsh one may find the
law, but at the same time, the law remains the law and it has got to be
respected.
50. In the result, this petition is allowed. The application
Exh.24 filed by the applicant in Sessions Case No. 19 of 2011 is h
allowed. The applicant herein is ordered to be discharged from the
Sessions Case No. 19 of 2011.
ABC 2016(I) Manoj Prabhakar Loharvs.Rahemat Bee Mohd Hasan And Anr. (Bom) 105

51. The trial shall proceed further against the other co-accused,
in accordance with law. However, before proceeding further to frame
a
the charge against the other co-accused, the trial Court shall bear in
mind the observations made by this Court so far as Section 304 IPC is
concerned. Rule is made absolute.
Result: -
b Petition allowed.

ABC 2016 (I) 105 BOM

ACQUITTAL & BAIL CASES
c HIGH COURT OF BOMBAY
(Indira K. Jain, J.)
Criminal Application No. 632 of 2009
Decided on 14 December, 2015
Aurangabad Bench
d
MANOJ PRABHAKAR LOHAR - APPELLANT(s).
Versus
RAHEMAT BEE MOHD HASAN AND ANR - RESPONDENT(s).
Law Covered:- (A) Code of Criminal Procedure, 1973 — Section
e 197 & 482 —Private complaint — in respect of police excess and ill-
treatment — on, before and after the arrest — Held, The alleged
offensive conduct is reasonably connected with the performance of
official duty of the Applicant— learned Magistrate could not have
taken cognizance of the case without previous sanction of the State
Government — Proceedings set aside. (Para 20)
f
(B) Code of Criminal Procedure, 1973 — Section 197 — Scope
of — Public servant is entitled to protection not only in regard to an
offence alleged to have been committed by him while acting as a
public servant — but also in respect to the offences alleged to have
g been committed by him while purporting to act in discharge of his
official duty. (Para 19)
(C) Code of Criminal Procedure, 1973 — Section 197 —
Protection under — Object of —To protect responsible public
servants against the institution of possibly vexatious criminal
h proceedings for offences alleged to have been committed by them —
while they are acting or purporting to act as public servants — D.T.
Virupakshappa Vs. C. Subash —Relied. (Para 19)