Gujarat High CourtDharmendrabhai @ Bakabhai Joitaram ... vs State Of Gujarat on 6 May, 2022Author:Nikhil S. KarielBench:Nikhil S. KarielR/CR.MA/5325/2013                            JUDGMENT DATED: 06/05/2022\n\n\n\n\n              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n               R/CRIMINAL MISC.APPLICATION NO. 5325 of 2013\n                                  With\n               R/CRIMINAL MISC.APPLICATION NO. 25358 of 2017\n\nFOR APPROVAL AND SIGNATURE:\n\n\nHONOURABLE MR. JUSTICE NIKHIL S. KARIEL\n\n==========================================================\n\n1      Whether Reporters of Local Papers may be allowed          No\n       to see the judgment ?\n\n2      To be referred to the Reporter or not ?                  No\n\n3      Whether their Lordships wish to see the fair copy No\n       of the judgment ?\n\n4      Whether this case involves a substantial question No\n       of law as to the interpretation of the Constitution\n       of India or any order made thereunder ?\n\n==========================================================\n       DHARMENDRABHAI @ BAKABHAI JOITARAM PATEL & 5 other(s)\n                            Versus\n                  STATE OF GUJARAT & 1 other(s)\n==========================================================\nAppearance:\nMR J M PANCHAL, SR. ADVOCATE with MR NANDISH THACKER, ADVOCATE for\nTHAKKAR AND PAHWA ADVOCATES(1357) for the Applicant(s) No. 1,2,3,4,5,6\nNOTICE SERVED BY DS for the Respondent(s) No. 2\nMS M D MEHTA, APP for the Respondent(s) No. 1\n==========================================================\n\n     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL\n\n                             Date : 06/05/2022\n                         COMMON ORAL JUDGMENT1.       Heard learned Senior Advocate Mr. J.M. Panchal with Advocate Mr.\nNandish Thacker for Thakkar and Pahwa Advocates for the applicants and\nlearned APP Ms. M.D. Mehta for the respondent-State in Criminal Misc.\nApplication No. 5325 of 2013 and learned Advocate Mr. K.P. Raval withPage 1 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                               JUDGMENT DATED: 06/05/2022\n\n\n\nlearned Advocate Mr. Manav Mehta for the applicants and learned APP Ms.\nM.D. Mehta for the respondent-State in Criminal Misc. Application No.\n25358 of 2017.2.       Issue Rule in Criminal Misc. Application No. 5325 of 2013. Learned\nAPP Ms. Mehta waives service of Rule on behalf of the respondent-State.3.       The applicants of both the applications pray for quashing of the FIR\nbeing C.R. No.I- 29 of 2013 registered with Mahidharpura Police Station,\nSurat, on 28.02.2013, for the offences punishable under Section 304( Part-\nII), 337, 338 and 114 of theIndian Penal Code.4.       The said FIR which is registered at the instance of the respondent\nNo.2 in both the applications, being the Police Sub Inspector, Mahidharpura\nPolice Station, inter alia alleges that the incident in question had happened\nnear the Delhigate Cross Road, opposite to Amisha Hotel, Lucky Tower,\non Una Pani Road, in the jurisdiction of the Police Station concerned with\nregard to a construction of a flyover on the said road. It is alleged that on\n26.02.2013 at 19:15 Hours, when the construction of RCC work a structure\nof iron cage was being made along with work of tying of vertical iron rods\nof 25 m.m. in thickness and 18 meters in length and whereas it is alleged\nthat the accused who had taken contract of building the flyover, caused the\nwork be done in an irresponsible manner and whereas an accident had\nhappened when the vertical iron rods had fallen on the iron cage structure,\ninside which, the workers were working, resulting in death of three workers\nand injuries sustained by three other workers.5.       The applicants of Criminal Misc. Application No. 5325 of 2013 are\nthe Directors of one M/s Rajkamal Builders Infrastructure Pvt. Ltd., who\nhad entered into a contract for building of the flyover with the Surat\nMunicipal Corporation and the applicants of Criminal Misc. Application No.Page 2 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                              JUDGMENT DATED: 06/05/2022\n\n\n\n25358 of 2017 are the engineers working for M/s S.N. Bhobe Associates\nPvt. Ltd., who had entered into a project management contract with the\nSurat Municipal Corporation.6.       Learned Senior Advocate Mr. J.M. Panchal for the applicants would\nsubmit that the applicants of Criminal Misc. Application No. 5325 of 2013,\nare Directors of the company named hereinabove, and the said company is\nwell known private company established in the year 1979 and whereas it is\nholding 'AA' Category licence since the year 1999. Learned Senior Advocate\nMr. Panchal would submit that the said company has constructed\napproximately 50 to 60 bridges and flyovers in the State of Gujarat. It is\nfurther submitted by the learned Senior Advocate that the company has\nconstructed various flyovers in Ahmedabad also, prominent among them\nbeing the flyovers at Shivranjini Cross Road, Helmet Cross Road, AEC\nCross Road, and whereas the company has also constructed over bridges in\nAhmedabad, prominent among them being the Sabarmati-AEC over bridge\nand the railway over bridge at Sola, etc.. It is further submitted by the\nlearned Senior Advocate that the work of the over bridge in question was\nstarted in the year 2009 and whereas the work order had been revised in the\nyear 2011. Learned Senior Advocate Mr. Panchal would submit that while\nthe work of construction was being carried out, as per supervision of\nengineers of the M/s S.N. Bhobe Associates Pvt. Ltd. who were engaged as\nProject Management Consultant. According to the learned Senior Advocate,\nthe incident in question was an accident and whereas the applicants as\nDirectors of the company could not be held vicariously liable for the alleged\nnegligence with regard to incident in question, more particularly the\napplicants as Directors were neither present at the site nor had they done\nany act leading to the accident. Learned Senior Advocate would further\nsubmit that while there is no provision in theIndian Penal Code, which\nenvisages criminal liability vicariously, even otherwise according to thePage 3 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                              JUDGMENT DATED: 06/05/2022\n\n\n\nlearned Senior Advocate, there was no negligence, at the site, on the part of\nthe applicants, on account of which the accident had happened.6.1      Learned Senior Advocate Mr. Panchal would submit that insofar asSection 304(Part-II) is concerned, the essential ingredient that the act was\ncaused with the knowledge that it is likely to cause death but without the\nintention to cause death is not found in the present incident, more\nparticularly the applicants not having done any act. Furthermore, insofar as\noffences punishable underSections 337and338is concerned, there is a\nclear absence of the reckless and negligence being gross and therefore also\nthe said offences could not be alleged. Thus, submitting learned Senior\nAdvocate would submit that this Court may quash the impugned FIR.6.2      In support of his submissions, learned Senior Advocate Mr. J.M.\nPanchal has relied upon the decisions of the Hon'ble Apex Court in case ofShamsher Khan Vs. State (NCT of Delhi), reported in (2000) 8 SCC 568, in\ncase ofKeshub Mahindra Vs. State of M.P., reported in (1996) 6 SCC 129,\nand in case ofM/S Thermax Ltd. and others Vs. K.M.Johny and others,\nreported in (2011) 13 SCC 412.7.       Submissions of learned Senior Advocate Mr. J.M. Panchal have been\nrelied upon by learned Advocate Mr. K.P. Raval appearing for the applicants\nof Criminal Misc. Application No. 25358 of 2017. Additionally, learned\nAdvocate Mr. Raval would submit that the applicants of the said application\nwere working as engineers with one M/s S.N. Bhobe Associates Pvt. Ltd.\nand whereas the said company had entered into a contract as Project\nManagement Consultant with the Surat Municipal Corporation for\nconstruction of flyover bridge at the Delhi Gate Junction, Ring Road, Surat.\nLearned Advocate Mr. Raval would submit that as per the said agreement,\nthe applicants were the engineers in charge at the site in question andPage 4 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                JUDGMENT DATED: 06/05/2022\n\n\n\nwhereas according to learned Advocate Mr. Raval, the engineers in charge\nwere more or less required to supervise anything with regard to any financial\nliability being incurred by the Corporation. Learned Advocate would further\nsubmit that the applicants were having general supervision of the project,\nand reading of the FIR as also the charge-sheet filed therein, would not\nreveal any act done by the applicants which had led to the incident in\nquestion. As such, it is submitted that the applicants were neither present at\nthe site nor the incident had happened under the direct supervision or\ncontrol of the applicants. Most importantly, learned Advocate would rely\nupon the two reports being (i) report by the Superintending Engineer\nDesigns (R & B) Circle, Gandhinagar, at the instance of the Surat Municipal\nCorporation, which would show that the incident in question was a\nconstruction accident and (ii) report by the Sardar Vallabhbhai National\nInstitute of Technology, Surat, which has also been requested by the Surat\nMunicipal Corporation to give its technical opinion as regards the cause of\nthe accident and according to the said report, submitted by Sardar\nVallabhbhai National Institute of Technology, the incident was a\nconstruction accident and not on account of any human negligence. Learned\nAdvocate would submit that since there was no reason coming forth, as to\nwhy the accident had happened, therefore the reports were called for from\nthe technical experts and whereas the technical experts had visited the site\nand had submitted the reports mentioned hereinabove, wherein it is clearly\nopined that the incident was a construction accident. Learned Advocate\nrelying upon the said reports would submit that while the FIR inter alleges\ncommission of offence punishable underSections 304(Part-II), 337 and 338\nread withSection 114of the Indian Penal Code, and whereas, there is no\neverment in the FIR which would show culpability or negligence on the part\nof the applicants. In any case, learned Advocate would submit that since the\ntechnical experts had opined that the incident was a construction accident,Page 5 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                JUDGMENT DATED: 06/05/2022\n\n\n\nand not on account of any human negligence, therefore, the impugned FIR\nmay be interfered with by this Court.8.       Both the learned Advocates appearing for the applicants in both the\nmatters would emphasize of the fact that for offence punishable underSection 304(Part-II) or evenSections 337and338of the IPC, essential\ningredient would be the intent of the accused i.e. the requirement of mens\nrea and whereas in the instant case there was no mens rea, insofar as the\napplicants are concerned which had led to the incident in question.9.       These petitions are strongly opposed by learned APP Ms. M.D.\nMehta for the respondent-State, who would submit that the applicants, due\nto lack of supervision at the site of the project, had caused the accident in\nquestion which had resulted in the death of three persons and serious\ninjuries being caused to other three persons. Learned APP would submit\nthat whether the applicants were involved or not, whether they were\nresponsible for supervising the project or not, whether they had any mens\nrea or not, are all the issues which could be agitated by the applicants at the\nstage of trial and whereas according to learned APP, this Court at this stage\nmay not interfere with the FIR.10       Heard learned Advocates for the parties who have not submitted\nanything else.11.      At the outset it is required to be noted that while the FIR inter alia\nalleges commission as well as omission on the part of the applicants, which\naccording to the FIR, had led to the death of three labourers, whereas, two\nreports by technically competent bodies i.e. one by the Road and Building\nDepartment of the State Government and the second by the Sardar\nVallabhbhai National Institute of Technology, are produced on record. The\nreport by the Superintending Engineer Designs (R& B) Circle, Gandhinagar,Page 6 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                 JUDGMENT DATED: 06/05/2022\n\n\n\nreferred to hereinabove, after observation of the site visit and information\ngathered from the Surat Municipal Corporations' officials etc. inter alia has\nobserved in conclusion at Para 7(f) as under :"7 (f)     the design details and construction methodology\n             followed during construction of RCC retaining wall especially\n             during placing & fixing of reinforcement of retaining wall,\n             provisions of tender specifications and Standard Engineering\n             Practice have been followed. In spite of all, the tragic incident\n             took place, which is accidental. This incident is "a construction\n             accident."12.    Likewise the Sardar Vallabhbhai National Institute of Technology,\nSurat, as referred to hereinabove, has also submitted a report at the request\nof the Surat Municipal Corporation. The Sardar Vallabhbhai National\nInstitute of Technology, in its report at Para 3.0 under the heading of\nInference has observed as under :"3.0 INFERENCE :From above it can be inferred that the work of\n             preparing reinforcement for retaining wall footing was\n             completed up to STEP NO.8 mentioned above and incident\n             took place while preparing for tying horizontal reinforcement for\n             supporting vertical reinforcement at this stage due to unknown\n             and unforeseen reasons the vertical bar of 25mm lost it's\n             vertically (also due to heavy self weight) and started titling and\n             collided with nearby vertical reinforcement bar and due to this\n             all nearby vertical bars due to later impact of falling bars fell\n             down on footing cage, due to the weight and impact of these\n             heavy bars the footing cage got compressed and deformed,\n             leading to injuries to labours working in the cage.Based on our experience, perception and judgment, we\n             can "strongly" say that, this "incidence" is clearly "construction\n             accident" and not any "Human Negligence"."13.    Thus, it appears that the technical experts had clearly opined that thePage 7 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                   JUDGMENT DATED: 06/05/2022\n\n\n\nincident was a construction accident and not on account of any human\nnegligence. Keeping in view these opinions of the experts, the submissions\nof the part of the applicants would require examination.14.    It is contended by the applicants that for alleging an offence underSection 304(Part-II) of theIPC, there should be some material to prima\nfacie indicate that the act which had caused death was done by the accused\nwith at least such a knowledge that they were by such an act likely to cause\ndeath. As far as the Directors of the company i.e. applicants of Criminal\nMisc. Application No. 5325 of 2013 are concerned, it is submitted that the\nsaid applicants being Directors of the company, were not even present at\nthe site when the incident in question had happened, nor were the Directors\nin any way either by the act of commission or omission responsible for the\nact, more particularly the act having not been done by the applicants.In this\nregard, this Court seeks to rely upon the decision of the Hon'ble Apex\nCourt in case ofShamsher Khan(supra), where the Hon'ble Apex Court\nwas dealing with an aspect inter alia with regard toSection 304of the IPC.\nParagraphs No. 10, 11, 12 and 13 ofthe said decisionbeing the relevant, the\nsame are reproduced hereinbelow for benefit."10. The appellant was convicted underSec. 304and308of\n            the IPC. Both the offences relate to commission and attempt to\n            commit culpable homicide respectively. So culpable homicide is\n            the common factor in both courts.Section 299of the Indian\n            Penal Code defines culpable homicide, which has three alternative\n            requirements. They are :-1. doing an act with the intention of causing death of a\n                       person, or2. doing an act with the intention of causing such bodily\n                       injury as is likely to cause such death, or3. doing an act with the knowledge that he is likely by\n                       such act to cause death of another person.Page 8 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                   JUDGMENT DATED: 06/05/202211. Learned counsel for the respondent State made an endeavour\n           to bring the case within the ambit of the third alternative, as the\n           case cannot possibly be brought under any of the other two. The\n           act proved to have been committed by the appellant alongwith\n           Babu Khan in this case is manufacture of explosive substances\n           like bombs. Hence what is to be established is, the above act must\n           have been done with the knowledge that such act by itself was\n           likely to cause death. If some other act had intervened which the\n           offender did not do consciously which triggered the explosions\n           that could not be counted as the act for that offender. No\n           evidence had been let in by the prosecution to show that mere\n           manufacture of such bombs is likely to cause death of any person,\n           nor any evidence for showing that appellant had the knowledge\n           that by manufacturing bombs death would possibly be caused to\n           any human being without any other act being done.12. We may also point out that prosecution has not brought out\n           any circumstance by which the Court could remotely attribute\n           knowledge to the appellant that by manufacturing and possessing\n           bombs death of any person was a likely consequence. By\n           manufacturing a bomb, alone no one can normally think that it\n           would explode without anything more done. Here something\n           more would have happened which caused the explosion, what\n           was that additional act is unknown to us. At any rate there is no\n           material to show that the appellant had done that additional act.13. In view of the aforesaid legal position, we find no scope to\n           bring the proved facts within the ambit ofSec. 299of the IPC. If\n           so, the question of culpable homicide would stand at bay. We,\n           therefore, find it legally difficult to confirm the conviction either\n           for the offences underSec. 304or forSec. 308of the IPC. As a\n           corollary we set aside the conviction and sentence passed on the\n           appellant in regard to those two counts."According to the Hon'ble Apex Court, insofar as the culpable\nhomicide which is an essential requirement of an offence underSection 304inter alia requires that the act in question must have been done with the\nknowledge that such act by itself was likely to cause death and if some otherPage 9 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                   JUDGMENT DATED: 06/05/2022\n\n\n\nact had intervened which the offender did not do consciously then that\ncould not be counted as the act for that offender. It would be pertinent to\nmention that the Hon'ble Apex Court was examining a conviction of a\nperson who had manufactured bombs inside a residence and whereas the\nbombs had exploded which led to death and injury and whereas it was undersuch circumstances, on the legal aspect as observed hereinabove that the\nHon'ble Apex Court had set aside the conviction and sentence for offence\npunishable underSections 304and308of the IPC.15.   This Court also seeks to rely upon the observations of the Hon'ble\nApex Court in case ofKeshub Mahindra(supra). It would be pertinent to\nmention here that the Hon'ble Apex Court inthe said decisionwas\nconsidering an aspect with regard to framing of charge against accused of\nthe Bhopal Gas Tragedy, whereas the applicants before the Hon'ble Apex\nCourt were chairman and other officials of the company in question.\nParagraph No. 20 ofthe said decisionbeing relevant for the present\npurpose, is quoted hereinbelow for benefit."20.       It, therefore, become necessary for us now to address\n            ourselves on this moot question. As noted earlier the main\n            charge framed against all these accused is underSection 304Part\n            II,IPC. So far as accused No's. 2, 3, 4 and 12 are concerned they\n            are also charged with offences underSections 326,324, IPC and\n            429IPCread withSection 35IPC while accused 5 to 9 are.\n            charged substantially with these offences also. We shall first deal\n            with the charges framed against the concerned accused under the\n            main provisions ofSection 304Part II,IPC. A look atSection\n            304Part II shows that the concerned accused can be charged\n            under that provision for offence of culpable homicide not\n            amounting to murder and when being so charged if it is alleged\n            that the act to the concerned accused is done with the knowledge\n            that it is likely to cause death but without any intention to cause\n            death or to cause such bodily injury as is likely to cause death the\n            charge offences would fall underSection 304Part II. However\n            before any charge underSection 304Part II can be framed, the\n            material on record must at least prima facie show that thePage 10 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                   JUDGMENT DATED: 06/05/2022\n\n\n\n          accused is guilty of culpable homicide and the act allegedly\n          committed by him must amount to culpable homicide. However,\n          if the material relied upon for framing such a charge against the\n          concerned accused falls short of even prima facie indicating that\n          the accused appeared to be guilty of an offence of culpable\n          homicideSection 304Part I or Part II would get put of the\n          picture. In this connection we have to keep in viewSection\n          299of the Indian Penal Code which defines culpable homicide. It\n          lays down that:"Whoever causes death by doing an act with the\n                    intention of causing death, or with the intention of\n                    causing such bodily injury as is likely to cause death, or\n                    with the knowledge that he is likely by such act to cause\n                    death, commits the offence of culpable homicide."Consequently the material relied upon by the prosecution for\n          framing a charge underSection 304Part II must at least prima\n          facie indicate that the accused had done an act which had caused\n          death with at least such a knowledge that he was by such act\n          likely to cause death. The entire material which the prosecution\n          relied upon before the Trial Court for framing the charge and to\n          which we have made a detailed reference earlier, in our view,\n          cannot support such a charge unless it indicates prim a facie that\n          on that fateful night when the plant was run at Bhopal it was run\n          by the concerned accused with the knowledge that such running\n          of the plant was likely to cause deaths of human beings. It cannot\n          be disputed that mere act of running a plant as per the\n          permission granted by the authorities would not be a criminal act.\n          Even assuming that it was a defective plant and it was dealing\n          with a very toxic and hazardous substance like MIC the mere act\n          of storing such a material by the accused in tank Mo: 610 could\n          not even prima facie suggest that the concerned accused thereby\n          had knowledge that they were likely to cause death of human\n          beings. In fairness to prosecution it was not suggested and could\n          not be suggested that the accused had an intention to kill any\n          human being while operating the plant. Similarly on the aforesaid\n          material placed on record it could not be even prima facie\n          suggested by the prosecution that any of the accused had a\n          knowledge that by operating the plant on that fateful night\n          whereat such dangerous and highly volatile substance like MIC\n          was stored they had the knowledge that by this very act itself they\n          were likely to cause death of any human being.Consequently in\n          our view taking the entire material as aforesaid on its face value\n          and assuming it to represent correct factual position inPage 11 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                      JUDGMENT DATED: 06/05/2022\n\n\n\n          connection with the operation of the plant at Bhopal on that\n          fateful night it could not be said that the said material even prima\n          facie called for framing of a charge against the concerned accused\n          underSection 304Part II,IPCon the spacious plea the said act\n          of the accused amounted to culpable homicide only because the\n          operation of the plant on that night ultimately resulted in deaths\n          of number of human beings and cattle. It is also pertinent to note\n          that when the complaint was originally filed suo motu by the\n          police authorities at Bhopal and the criminal case was registered\n          at the police station Hanumanganj, Bhopal as case No, 1104/84\n          it was registered underSection 304-Aof the IPC. We will come\n          to that provision a little later. Suffice it to say at this stage that on\n          the entire material produced by the prosecution in support of the\n          charge it could not be said even prima facie that it made the\n          accused liable to face the charge underSection 304Part II. In\n          this connection we may refer to a decision of the Calcutta High\n          Court to which our attention was drawn by learned senior\n          counsel Shri Rajendra Singh for the appellants; In the case\n          ofAdam Ali Taluqdar and Ors. v. King-Emperor, AIR (1927)\n          Calcutta 324 a Division Bench of the Calcutta High Court made\n          the following pertinent observa-tions while interpretingSection\n          304Part II-read withSection 34IPC :"Although to constitute an offence underS. 304, Part 2,\n                    there must be no intention of causing death or such\n                    injury as the offender knew was likely to cause death,\n                    there must still be a common intention to do an act with\n                    the knowledge that it is likely to cause death though\n                    without the intention of causing death. Each of the\n                    assailants may know that the act, they are jointly doing,\n                    is one that is likely to cause death but have no intention\n                    of causing death, yet they may certainly have the\n                    common intention to do that act and thereforeS. 34can\n                    apply to a case UnderS. 304, Part 2;"Once we reach the conclusion that the material produced by the\n          prosecution before the Trial Court at the stage of framing of\n          charges did not even prima fade connect the accused with any act\n          done with the knowledge that by that act itself deaths of human\n          beings would be caused the accused could not be even charged\n          for culpable homicide and consequently there would be no\n          question of attractingSection 304Part II against the concernedPage 12 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                   JUDGMENT DATED: 06/05/2022\n\n\n\n             accused on such material. When on the material produced by the\n             prosecution no charge could be framed against any of the\n             accused underSection 304Part II there would remain no\n             occasion to press in service the applicability ofSection 35, (PC in\n             support of such a charge for those accused who were not actually\n             concerned with the running of the plant at Bhopal, namely,\n             accused Nos, 2,3, 4 and 12."The Hon'ble Apex Court in addition to holding in the above\nparagraph that for alleging an offence underSection 304(II)of the IPC,\nthere should be at least some material relied upon by the prosecution, which\nwould prima facie indicate that the accused had done an act which had\ncaused death with at least knowledge that such act was likely to cause death.\nThe Hon'ble Apex Court had further drawn a distinction with regard to\naccused who were not concerned with running plant, more particularly\nobserving that "...The entire material which the prosecution relied upon\nbefore the Trial Court for framing the charge and to which we have made a\ndetailed reference earlier, in our view, cannot support such a charge unless it\nindicates prima facie that on that fateful night when the plant was run at\nBhopal it was run by the concerned accused with the knowledge that such\nrunning of the plant was likely to cause deaths of human beings...".Thus, in the considered opinion of this Court, having regard to the\nlawlaid down bythe Hon'ble Apex Court interpreting the essential\ningredients for an offence underSection 304(II)being that there must be\nsome an act being done by the accused and whereas such act must have\nbeen done with the knowledge that such act by itself was likely to cause\ndeath.16.      As far as the facts of the present case are concerned, it appears that\nthe FIR as well as the charge-sheet papers do not indicate any overt act byPage 13 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                 JUDGMENT DATED: 06/05/2022\n\n\n\ncommission or even an act of omission on the part of any of the accused\nbefore this Court i.e. either the accused being the Directors of the company\nor the accused being the engineers in charge with regard to overall\nsupervision, being directly responsible for the death and injury in question\nand whereas since there is no material to show any act done by the present\napplicants, there would not be any question of such act being done by the\npresent applicants with the knowledge that the act would cause death. These\nobservations without precluding the original submissions, based upon the\nreports that the incident in question was a construction incident which did\nnot occur on account of human negligence.17.Insofar as the offence punishable underSections 337and338of the\nIPC are concerned, this Court seeks to rely upon the observations of the\nHon'ble Apex Court in case ofJacob Mathew Vs. State of Punjab and\nanother, reported in (2005) 6 SCC 1.18.In case ofJacob Mathew(supra) the Hon'ble Apex Court had after\nelaborately discussing various aspects of the term negligence had inter alia\nconcluded as regards the ordinary meaning of the term negligence at\nparagraph no. 48(1) which is reproduced hereinbelow for benefit:"48.      (1) Negligence is the breach of a duty caused by\n            omission to do something which a reasonable man guided by\n            those considerations which ordinarily regulate the conduct of\n            human affairs would do, or doing something which a prudent\n            and reasonable man would not do. The definition of negligence\n            as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice\n            G.P. Singh), referred to hereinabove, holds good. Negligence\n            becomes actionable on account of injury resulting from the act or\n            omission amounting to negligence attributable to the person\n            sued. The essential components of negligence are three: 'duty',\n            'breach' and 'resulting damage'."18.1 Furthermore at paragraph no. 48(5) the Hon'ble Apex Court hasPage 14 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                  JUDGMENT DATED: 06/05/2022\n\n\n\nexplained the difference between negligence in civil law and negligence in\ncriminal law. The said paragraph is quoted hereinbelow for benefit:"48. (5) The jurisprudential concept of negligence differs in civil\n            and criminal law. What may be negligence in civil law may not\n            necessarily be negligence in criminal law. For negligence to\n            amount to an offence, the element of mens rea must be shown to\n            exist. For an act to amount to criminal negligence, the degree of\n            negligence should be much higher i.e. gross or of a very high\n            degree. Negligence which is neither gross nor of a higher degree\n            may provide a ground for action in civil law but cannot form the\n            basis for prosecution."19.   Having regard to the observations of the Hon'ble Apex Court as\nquoted hereinabove, it could be stated that insofar as the ordinary meaning\nof the term negligence, the same would amount to an act of a breach of duty\ncaused by omission to do something or commission of doing some act\nwhich should not have been done more particularly in context of a\nreasonable man guided by considerations which regulate the normal conduct\nof human affairs. In other words wherever the term negligence is used in its\nnormal sense, the same would require doing something which should not be\ndone or not doing something which should be done more so the acts of\ndoing and not doing being in the context of how a reasonable person would\nor would not act in the given circumstances. Furthermore, for negligence to\nbecome actionable there has to be an injury resulting from the negligence in\ndoing something or in not doing something. According to the Hon'ble Apex\nCourt there are three essential components of negligence i.e. (a) duty, (b)\nbreach and (c) resulting damage.19.1 Insofar as the difference between negligence in civil and criminal law,\nthe Hon'ble Apex Court has inter alia observed and clarified that a\nnegligence in civil law may not be necessarily a negligence in criminal law.\nAccording to the Hon'ble Apex Court for negligence to amount to anPage 15 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                 JUDGMENT DATED: 06/05/2022\n\n\n\noffence the element of mens rea i.e culpable state of mind should be shown\nto exist. Furthermore according to the Hon'ble Apex Court for negligence\nto be termed as criminal negligence, the degree of negligence should be of a\nmuch higher level i.e. gross negligence of a very higher degree. Furthermore\nthe Hon'ble Apex Court has also clarified that negligence which is neither\ngross nor of a higher degree cannot be basis for prosecuting a person and\nthere may be a remedy in the civil law with regard to the same.20.    A plain reading of the scheme ofSections 337and338would reveal\nthat the act which is sought to be punished is the act which is done rashly or\nnegligently resulting in either endangering of human life or personal safety.\nUnderSection 337of the Indian Penal Code an injury of hurt or simple hurt\nis envisaged and underSection 338injury in the nature of grievous hurt is\nbeing envisaged more particularly on account of an act done so rashly or\nnegligently.21.    The primary ingredient of offence punishable underSections 337and338and offence punishable underSection 304Ais that the act concerned\nshould be done rashly or negligently. Though the consequence of the rash\nand negligent act and the resultant punishment are varying as per the gravity\nof the consequence but at the same time the underlying factor to impose\ncriminal liability in all the above sections being that the act should be done\nrashly or negligently. While the Hon'ble Apex Court in case ofJacob\nMathew(supra) has inter alia held that the term rash and negligent to be\nread as qualified by the word 'gross' whereas insofar asSections 337and338, the statute itself has qualified the expression rashly or negligently with\nthe term 'so'.Furthermore in case ofJacob Mathew(supra) the Hon'ble\nApex Court has also held that for negligence to amount to criminal\nnegligence, the degree of negligence should be very high, i.e gross. It could\nthus be held that for an act to amount to criminal negligence as per SectionsPage 16 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                 JUDGMENT DATED: 06/05/2022\n\n\n\n337 and 338, the negligence should be of a higher degree. For an act to be\ncategorized as a rash and negligent act underSections 337and338, it is\nrequired to be shown that the recklessness or negligence was of a very high\ndegree.22.   Having regard to the legal position emerging from the decision of the\nHon'ble Apex Court in case ofJacob Mathew(supra), it appears to this\nCourt, that while the act in question, more particularly for alleging offence\nunderSections 337and338of the IPC, should be done so recklessly and\nnegligently i.e. the act should be extremely grossed. In the instant case,\nneither the FIR nor the charge-sheet papers reveal any act of commission or\nomission by the applicants herein which could be so gross so as to bring the\nsaid act under the ambit ofSections 337and338of the IPC.23.   Having regard to the overall discussion, observations and conclusion,\nin the considered opinion of this Court, more particularly relying upon the\nreports i.e. the report of the Superintending Engineer Designs (R & B)\nCircle, Gandhinagar, State Government, as well as the report of the Sardar\nVallabhbhai National Institute of Technology, Surat, while it clearly appears\nthat the incident in question was a construction accident, as far as the\napplicants in the both applications i.e. the applicants of Criminal Misc.\nApplication No. 5325 of 2013 being the Directors and the applicants of\nCriminal Misc. Application No. 25358 of 2017 being the engineers in\ncharge, could not be stated to have committed any act, either with the\nknowledge, that such act would cause death, though without intention, so as\nto attract the offence punishable underSection 304(Part-II) of theIPC, nor\nis there any prima facie material to show that the applicants had done any\nact which was grossly negligent and reckless, for invoking offence\npunishable underSections 337and338of the IPC.Page 17 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                  JUDGMENT DATED: 06/05/202224.    Furthermore, in the considered opinion of this Court, neither the FIR\nnor the charge-sheet papers even prima facie point out to any 'mens rea' -\nculpable intent of the applicants which is essential for a negligent act to be\nbrought in the ambit of criminal liability as held by the Hon'ble Apex Court\nin the case ofJacob Mathew(supra).25.    This Court, at this stage, seeks to rely upon the decision of the\nHon'ble Apex Court in case ofState of Haryana and others Vs. Bhajan Lal\nand others, reported in 1992 Supp. (1) SCC 335, where the Hon'ble Apex\nCourt has laid down certain categories of cases by way of illustrations,\nwherein extraordinary power underArticle 226of the Constitution of India\nor inherent powers underSection 482of the Code of Criminal Procedure\ncould be exercised by this Court for quashing of an FIR, either to prevent\nabuse of the process of any Court or otherwise to secure ends of justice.\nPara No.102 ofthe said decisionbeing relevant for the present purpose, the\nsame is reproduced hereinbelow for benefit."102. In the backdrop of the interpretation of the various\n                relevant provisions of the Code under Chapter XIV and of\n                the principles of law enunciated by this Court in a series of\n                decisions relating to the exercise of the extraordinary power\n                underArticle 226or the inherent powers underSection 482of\n                the Code, which we have extracted and reproduced above,\n                we give the following categories of cases by way of illustration\n                wherein such power could be exercised either to prevent\n                abuse of the process of any court or otherwise to secure the\n                ends of justice, though it may not be possible to lay down any\n                precise, clearly defined and sufficiently channelised and\n                inflexible guidelines or rigid formulae and to give an\n                exhaustive list of myriad kinds of cases wherein such power\n                should be exercised.(1) Where the allegations made in the first information\n                       report or the complaint, even if they are taken at their\n                       face value and accepted in their entirety do not prima\n                       facie constitute any offence or make out a case against\n                       the accused.Page 18 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                   JUDGMENT DATED: 06/05/2022\n\n\n\n                      (2) Where the allegations in the first information report\n                      and other materials, if any, accompanying the FIR do\n                      not disclose a cognizable offence, justifying an\n                      investigation by police officers underSection 156(1)of\n                      the Code except under an order of a Magistrate within\n                      the purview ofSection 155(2)of the Code.(3) Where the uncontroverted allegations made in the\n                      FIR or complaint and the evidence collected in support\n                      of the same do not disclose the commission of any\n                      offence and make out a case against the accused.(4) Where, the allegations in the FIR do not constitute a\n                      cognizable offence but constitute only a non-cognizable\n                      offence, no investigation is permitted by a police officer\n                      without an order of a Magistrate as contemplated underSection 155(2)of the Code.(5) Where the allegations made in the FIR or complaint\n                      are so absurd and inherently improbable on the basis of\n                      which no prudent person can ever reach a just\n                      conclusion that there is sufficient ground for proceeding\n                      against the accused.(6) Where there is an express legal bar engrafted in any\n                      of the provisions of the Code or the concerned Act\n                      (under which a criminal proceeding is instituted) to the\n                      institution and continuance of the proceedings and/or\n                      where there is a specific provision in the Code or the\n                      concerned Act, providing efficacious redress for the\n                      grievance of the aggrieved party.(7) Where a criminal proceeding is manifestly attended\n                      with mala fide and/or where the proceeding is\n                      maliciously instituted with an ulterior motive for\n                      wreaking vengeance on the accused and with a view to\n                      spite him due to private and personal grudge."The instant case, in the considered opinion of this Court, would be\ncovered by Instance No.1 ofthe said decisionof the Hon'ble Apex Court,\nmore particularly in the considered opinion of this Court, even if the\nallegations made in the FIR had taken at their face value and accepted inPage 19 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                 JUDGMENT DATED: 06/05/2022\n\n\n\ntheir entirety do not prima facie constitute any offence or make out a case\nagainst the accused. Furthermore, it also appears that the present case would\nalso covered by Instance No.3 ofthe said decisioninasmuch as,\nuncontroverted allegations made in the FIR and the evidence collected in\nsupport thereof, not disclosing commission of any offence and make out a\ncase against the accused.26.    As observed hereinabove, it clearly appears that neither the\nallegations in the FIR taken it at face value nor the material collected during\nthe investigation reveal commission of any offence by the present\napplicants. Thus, the impugned FIR, in the considered opinion of this\nCourt, deserves to be quashed, as to ensure that the ends of justice are\nsecured.27.    From the charge-sheet papers, it does not appear that the applicants\nby their any act of commission or omission, more particularly from the\nperspective of a reasonable man as to what such a person would do or\nwould not do in the given circumstance, do not appear to have committed\nany reckless or negligent act to which either endanger human life and cause\nhurt or endanger human life or personal safety of others and cause grievous\nhurt. In the considered opinion of this Court, more particularly relying upon\nthe observations of the technical experts who were otherwise neither\nconnected with the incident nor had any kind of interest in the incident in\nquestion, had opined that the incident was an accident and whereas the\nexperts had also, more particularly the report of the the Sardar Vallabhbhai\nNational Institute of Technology, had also excluded the factor of human\nnegligence from the accident. Under such circumstances, having regard to\nthe discussion on the lawlaid down bythe Hon'ble Apex Court in this\nregard, in the considered opinion of this Court, there was no material in the\ncharge-sheet which would even prima facie show that the present applicantsPage 20 of 21Downloaded on : Fri May 06 21:27:03 IST 2022R/CR.MA/5325/2013                                JUDGMENT DATED: 06/05/2022\n\n\n\nhad committed a reckless and negligent act which had led to the accident in\nquestion.28.    Having regard to the above discussion, observations and finding,\nthese applications deserve to be allowed. Hence, the impugned FIR being\nC.R. No.I- 29 of 2013 registered with Mahidharpura Police Station, Surat,\nfor the offences punishable underSection 304(Part-II), 337, 338 and 114 of\ntheIndian Penal Code, as well as all other consequential proceedings arising\ntherefrom, are hereby quashed and set aside qua the applicants herein. Rule\nis made absolute to the aforesaid extent.(NIKHIL S. KARIEL,J)\nBDSONGARAPage 21 of 21Downloaded on : Fri May 06 21:27:03 IST 2022