Allowed

Nissam v. State of Kerala

Kerala HC27 Feb 2012Crl.MC/209/2012

Case brief

AI extract

What is this about?

The High Court quashed proceedings against an accused manager under Sections 279 and 304 A IPC, holding that the driver's rash driving was the proximate cause of death, not the accused's alleged failure to appoint a cleaner.

What did the court decide?

The petitioning accused was acquitted by way of quashing all further proceedings against him in Crl.MC.No. 209 of 2012 and Annexure B Final Report.

Nissam Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN

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MONDAY, THE 27TH DAY OF FEBRUARY 2012/8TH PHALGUNA 1933

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Crl.MC.No. 209 of 2012 () ------------------------CC.581/2009 of J.M.F.C.-II,ATTINGAL

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PETITIONER/ACCUSED NO.2:

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NISSAM, AGED 45 YEARS, S/O.POOKUNJU LABBA, NISSAM MANZIL, PUTHENKADAVU KANIYAPURAM, THIRUVANANTHAPURAM DISTRICT.

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BY ADV. SRI.K.ABDUL JAWAD

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RESPONDENTS/COMPLAINANT:

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1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR

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HIGH COURT OF KERALA, ERNAKULAM.682 031.

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2. SHAJI,

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S/O.ABDUL RAHEEM, AGED 37 YEARS,

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JASSEENA MANZIL, PUTHUKKURICHI,

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KADHINAMKULAM VILLAGE,

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THIRUVANANTHAPURAM DISTRICT.695001.

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R1 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27-02-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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DSV/-

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'CR'

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P.S.GOPINATHAN, J.

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---------------------------------------Crl.M.C.NO. 209 OF 2012

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Dated this the 27^th day of February, 2012

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O R D E R

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In this petition under Section 482 of the Code of Criminal Procedure, the petitioner, who is the 2^nd accused in C.C.No.581/2009 on the file of the Judicial Magistrate of the First Class -II, Attingal, for the offences under Sections 279 and 304 A read with 34 of the Indian Penal Code, seeks an order to quash Annexure B Final Report with a plea that the offences alleged are not made out against the petitioner.

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The facts of the case in brief are as follows:-

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On 11/06/2008 at about 4 P.M. the first accused, a driver of a school bus bearing Registration No.KL01 S 470, drove the bus at the school compound in a rash and negligent manner so as to endanger human life and as a result, Sachu @ Arif Mohammed, aged 13 years, a student of the Kaniyapuram Muslim High School, of which the

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Crl.M.C.NO. 209 OF 2012

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petitioner was the manager, fell down from the bus and sustained severe injuries to which the boy succumbed. The allegation against the petitioner is that, as the manager of the school, he was bound to appoint a cleaner in the bus and his failure to appoint the cleaner caused the student to fall down from the bus and sustain injuries. With that pleading, the petitioner was arrayed as second accused with the aid of Section 34 IPC.

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3.The learned counsel for the petitioner would content that there is no statement by any of witnesses to come to a conclusion that there was failure to appoint the cleaner as alleged in the final report. Canvassing attention to the statement of CW.2 Tharesh, a school teacher, the counsel would submit that CW2 only stated that he did not find the cleaner at the time of accident. There is no whisper in his statement that the petitioner had not appointed a cleaner. His further statement is that one Rijas was the cleaner and that at the time of accident, Rijas was not found in the school bus.

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Crl.M.C.NO. 209 OF 2012

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According to the learned counsel that statement does not mean that cleaner was not appointed. I find merit in the submission. There is also no mention that Rijas was absent from the bus with the knowledge of the petitioner or that the petitioner had any common intention with the first accused for rash or negligent driving. The statement of no other witness refers about the cleaner or the failure of the petitioner to appoint the cleaner so as to implicate the petitioner. The further argument that was advanced by the learned counsel for the petitioner is that even if there is failure to appoint a cleaner in the bus that would not amount to any offence, either under Section 279 or under Section 304 A of the Indian Penal Code. According to the learned counsel, the accident was not because of the direct or proximate cause of the failure to appoint the cleaner so as to implicate the petitioner. In support of this argument, the learned counsel had relied upon the decisions in Kurban Hussein Mohamedalli Rangawalla V. State of Maharashtra (A.I.R. 1965 Supreme Court 1616) and the decision in Ambalal D.

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Crl.M.C.NO. 209 OF 2012

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Bhatt V. The State of Gujarat (1972 Crl.L. J. 727). In the former decision, at paragraph 4 it is held as follows:

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“It is clearly the negligence of Hatim which was the direct or proximate cause of the file breaking out, though the fact that burners were kept in the same room in which turpentine and varnish were stored was indirectly responsible for the fire breaking out and spreading so quickly. Even so in order that a person may be guilty under S.304-A, the rash or negligent act should be the direct or proximate cause of the death.”

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In the latter decision their Lordships, giving reliance to the former decision as well as in Emperor V. Omkar Rampratap, (4 Bom LR 679), it is held.

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“To impose criminal liability under

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Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and

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Crl.M.C.NO. 209 OF 2012

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negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non.”

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Having carefully gone through the averments in the final report and the statement of the CW.2, I find that very specific case of the prosecution is that the bus was driven by the 1^st accused in a rash and negligent manner and that resulted the accident. There is nothing to come to a conclusion that in the given set of facts, the accident would not have occurred, if the cleaner was appointed. Adding to the above, as I mentioned earlier, the prosecution has no case that the cleaner was not appointed with any intention to allow or enable the 1^st accused drive the bus in a rash or negligent manner so as to endanger human life. It is also crucial to note that by the statement of CW2 what is discernible is that the cleaner was absent in the bus at the time of

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Crl.M.C.NO. 209 OF 2012

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occurrence. If that is so, the cleaner was appointed by the petitioner but at the relevant time the cleaner was absent. There is nothing on record to come to a conclusion that the fact that the cleaner was absent in the bus was known to the petitioner or that the absence of the cleaner was as a result of any common intention of the petitioner and the first accused.

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Therefore, I find that from the allegations in Annexure B report there is nothing to show that there was failure on the side of the petitioner to appoint the cleaner or that such failure was the direct or proximate cause of death of the boy so as to send the petitioner for trial. Whereas the proximate and direct cause is the rash or negligent driving of the 1^st accused. No offence under Section 279 or 304 A IPC is made out to send the petitioner for trial. The trial of the 1^st accused with the petitioner is only an abuse of the process. Therefore, it would be appropriate to interfere in exercise of the powers vested on this court under

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Crl.M.C.NO. 209 OF 2012

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Section 482 of the Code of Criminal Procedure.

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In the result, this petition is allowed and all further proceedings as against the petitioner in pursuance to Annexure B Final Report would stand quashed.

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P.S.GOPINATHAN JUDGE

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DSV/-

Nissam v. State of Kerala

Case brief

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Nissam v. State of Kerala

Case brief

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