Allowed

Madhusudan Agrawal v. State of Chhattisgarh

Chhattisgarh HC1 Sept 2023CRMP/262/2020

Case brief

AI extract

What is this about?

The High Court allowed two criminal miscellaneous petitions filed by construction contractors challenging the validity of an FIR registered under Section 304A IPC for the death of two minors who fell into a water pit at a restricted railway construction site. Relying on Supreme Court precedents regarding proximate cause, the court quashed the FIR and consequential proceedings.

What did the court decide?

Criminal Miscellaneous Petitions Cr.M.P No 262/2020 and Cr.M.P No.98/2020 allowed; First Information Report and all consequential proceedings quashed.

Madhusudan Agrawal Vs State of Chhattisgarh — Cheque Dishonour | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRMP No. 98 of 2020

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Budhen Singh S/o Shree Dhirendra Singh Gurwal, Aged About 28 Years, R/o Mangla Chowk, Police - Station - Civil Lines, Bilaspur, District - Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh Through Officer-in-Charge, Police-Station - Bodhghat, District - Bastar, Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh

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Dulbo S/o Somaru Kashyap, Aged About 21 Years, R/o Metguda, Jawahar Nagar Ward, Jagadalpur, District - Bastar Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh

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---- Respondents

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CRMP No. 262 of 2020

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Madhusudan Agrawal S/o Shree Kanhaiya Lal Agrawal, Aged About 56 Years, R/o Narmada Nagar, Police Station Civil Lines, Bilaspur, District Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh Though Officer-in-Charge, Police Station Bodhghat, District Bastar, Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh

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Dulbo S/o Somaru Kashyap, Aged About 21 Years R/o Metguda, Jawahar Nagar Ward, Jagadalpur, District Bastar, Chhattisgarh., District : Bastar(Jagdalpur), Chhattisgarh

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---- Respondents

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(Cause-title taken from Case Information System)

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For Petitioners : - Mr. Mahendra Dubey, Advocate. For State/Respondent No.1 :- Mr. Himanshu Kumar Sharma, Panel Lawyer. For Respondent No.2 :- None, though served.

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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01.09.2023

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The Petitioners Madhusudan Agrawal and Budhen Singh, by way of these

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Criminal Miscellaneous Petitions have challenged the legality and validity of the impugned First Information Report/Crime no.33313014180252/2018 dated 09/08/2018 (ANNEXURE-A/1) registered against them at Police-stationBodhghat, District Bastar, Chhattisgarh for an offence punishable under Section

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304A of the Indian Penal Code. They have prayed for quashing of the impugned FIR.

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Undisputed facts of the case are that the

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Complainant/Informant/Respondent no. 2 intimated the police that in the morning hours on 09/08/2018 his nephews (Bhatija) Nitin Kashyap, aged about 7 years and Sahil Kashyap, aged about 10 years along with Prakash Kashyap had gone to play in Railway Colony, Jagdalpur, District Bastar CG. It was further stated that at about 8.20 am, Prakash Kashyap came back and told that both kids have drowned into a water pit in railway colony upon which he went to the spot and found both the kids drowned in a pit filled with water and were lying dead. Aforesaid intimation prompted the police to register Merg no. 24/2018 and Merg no. 25/2018.

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The Bodhghat Police on enquiry of Mergs and after investigating the matter found that the place of occurrence is owned by the railway and construction work of Railway Quarters on the said site was being carried by the Contractor Firm M/S Madhusudan Aarawal, Bilaspur, District Bilaspur CG and as a part of said construction work, the pit was dug in which rain water was filled. The Bhodhghat Police prima-facie found that the pit in which both the kids drowned and died, was dug by the proprietor of the firm Madhusudan Agrawal and left the pit open without making any arrangement of security in which water was filled. It is alleged that the rash and negligent act of the petitioner Madhusudan Agrawal has caused the death of the kids making out an offence under Section 304A of the Indian Penal Code thereafter the police registered the impugned Crime/FIR no. 33313014180252/2018 against the petitioner Madhusudan Agrawal and on further being informed that the work of digging the pit was given on sub-contract to the petitioner Budhen Singh, he has been made an accused in the instant case.

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Petitioners would submit that Madhusudan Agrawal is the proprietor of firm M/S Madhusudan Agrawal and work of construction of Type-Il Railway

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Quarters at Railway Colony, Jagadalpur, District Bastar CG was being done by his firm as per the Contract Agreement No. 12/CE/C/BBS/VSKP/ECoR/2017 dated 17/02/2017 entered with the Railway and the power of Attorney holder of the petitioner Madhusudun Agrawal has subcontracted the work of excavation of pit to the petitioner Budhen Singh vide agreement dated 18/04/2018 (AnnexureA/4). They would further submit that the alleged place of incident is the railway colony and it was under construction and place where the alleged pit was dug, was a restricted/prohibited area and surrounded by the boundary wall where entry of public is prohibited as per the Railway which is certified by the Railway vide certificate dated 11/08/2018 (Annexure-A/5) and there was fencing around the pit. The petitioners bringing the order dated 03/07/2019 of Collector, Jagdalpur, District Baster, CG (Annexure-P/6) on record submit that the parents of both the deceased kids, claiming the death of kids being result of an accident/natural calamity have received a compensation of Rs. 4,00,000/- each from the Chhattisgarh Government.

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Learned counsel for the petitioners would submit that the deceased kids themselves trespassed the boundary wall and entered the restricted construction area of Railway and despite there being proper fencing around pit slipped into pit, drowned in the water and died due to their own negligence. They submit that if the whole narration of impugned FIR is accepted in totality, no offence under Section 304A of IPC is made out against them and prayed for quashing of impugned FIR. Counsel for the petitioners placed reliance upon the judgment of the Supreme Court delivered in the matter of Sushil Anshal Vs State through Central Bureau of Investigation , reported in (2014) 6 SCC 173 and further reliance is placed on the Order/Judgment dated 28/07/2023 passed by the coordinate bench of this Court in CRMPNo. 897/2016.

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On the other hand, learned Panel Lawyer appearing for the respondent/State would oppose the submissions made by learned counsel for the petitioners and submit that no case for indulgence of this Court under

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Section 482 of the Cr.P.C. is made out by the petitioners and the instant petitions deserve to be dismissed.

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Notice issued to the informant has been served to him, but he did not appear to press this matter.

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I have heard learned counsel for the parties and perused the impugned order and other documents appended with the petition.

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The Hon’ble Supreme Court in the matter of Sushil Ansal (supra) has held that one of the basic ingredients for committing an offence under Section 304A of Indian Penal Code is that the rash or negligent act of the accused ought to be direct immediate and proximate cause of the death and that the principle of law that the death must be shown to be the direct immediate and proximate result of the rash or negligent act is well accepted. It has been held by the Hon’ble Supreme Court while dealing with the doctrine of causa causans that for offence under Section 304 A to be proved, it is not only necessary to establish that the accused was either rash or grossly negligent but also that such rashness or gross negligence was the cause that resulted in the death of the victim. Para 80 to 84 of the said judgment dealing with the issue are quoted as follows:

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“80. We may now advert to the second and an equally, if not, more important dimension of the offence punishable under Section 304-A IPC viz. that the act of the accused must be the proximate, immediate or efficient cause of the death of the victim without the intervention of any other person’s negligence. This aspect of the legal requirement is also settled by a long line of decisions of the courts in this country. We may at the outset refer to a Division Bench decision of the High Court of Bombay in Emperor v. Omkar Rampratap [(1902) 4 Bom LR 679] where Sir Lawrence Jenkins speaking for the Court summed up the legal position in the following words:

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“... to impose criminal liability under Section 304-A of the Indian Penal Code, it is necessary that the act should have been the direct result of a rash and negligent act of the accused and that act must be proximate and efficient cause without the intervention of another negligence. It must have been the causa causans; it is not enough that it may have been the causa sine qua non.”

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The above statement of law was accepted by this Court in Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra [AIR 1965 SC 1616]. We shall refer to the facts of this case a little later especially because Mr Jethmalani, learned counsel for the appellant Sushil Ansal,

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placed heavy reliance upon the view this Court has taken in the fact situation of that case.

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Suffice it to say that this Court has in Kurban Hussein case (supra) accepted in unequivocal terms the correctness of the proposition that criminal liability under Section 304-A IPC shall arise only if the prosecution proves that the death of the victim was the result of a rash or negligent act of the accused and that such act was the proximate and efficient cause without the intervention of another person’s negligence. A subsequent decision of this Court in Suleman Rahiman Mulani v. State of Maharashtra [AIR 1968 SC 829] has once again approved the view taken in Omkar Rampratap case that the act of the accused must be proved to be the causa causans and not simply a causa sine qua non for the death of the victim in a case under Section 304-A IPC.

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To sum up: for an offence under Section 304-A to be proved it is not onlynecessary to establish that the accused was either rash or grossly negligent but also that such rashness or gross negligence was the causa causans that resulted in the death of the victim.

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As to what is meant by causa causans we may gainfully refer to Black’s Law Dictionary (5th Edn.) which defines that expression as under:

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“Causa causans.—The immediate cause; the last link in the chain of causation.”

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”The Advance Law Lexicon edited by Justice Chandrachud, former Chief Justice of India defines causa causans as follows:

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“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.”

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The expression “proximate cause” is defined in the 5th Edn. of Black’s Law Dictionary as under:

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“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 v.Great Atlantic & Pacific Tea Co.[226 Pa Super 574] , 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, 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 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 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.”

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It is revealed from the record that deceased kids died due to falling in the

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pit situated in restricted construction site of Railway which is surrounded by the boundary wall and there is no justification for the deceased kids entering the restricted area of construction site of Railway and in this factual situation, it

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cannot be held that either rashness or gross negligence of the petitioners was causa causans that resulted in the death of kids.

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Considering the Submissions advanced by the learned Counsel for the parties, particularly considering the contents of impugned FIR in which complainant stated that the kids themselves had gone to play in the restricted railway construction area and fell down in the pit and died, further, applying the principles of law laid down by the Hon'ble Supreme Court in Sushil Ansal case and taking note of the order dated 28/07/2023 passed by the coordinate Bench in Cr.M.P. No 897/2016 quashing the offence under section 304A of Indian Penal Code registered under the identical facts, I am of the view that the petitioners have succeeded in making out a case for interference of this Court under Section 482 of the Criminal Procedure Code.

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Accordingly, Criminal Miscellaneous Petitions, Cr.M.P No 262/2020 and Cr.M.P No.98/2020 are allowed and the First Information Report/Crime no.33313014180252/2018 dated 09/08/2018 (ANNEXURE-A/1) and investigation thereof registered against the Petitioners at Police-stationBodhghat, District Bastar, Chhattisgarh including all consequential proceedings are hereby quashed.

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Sd/- (Rakesh Mohan Pandey) Judge

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Aadil

Madhusudan Agrawal v. State of Chhattisgarh

Case brief

What is this about?

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Madhusudan Agrawal v. State of Chhattisgarh

Case brief

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