Criminal Revision No.42 of 2018

6th September, 2018.

Petitioner Counsel: Mr. S.D. BORKUTE
Respondent Counsel: Mr. V.A. THAKRE, Mr. RAJNISH VYAS

Cases Cited:
M.S. Grewal Vs. Deep Chand Sood, 2001(4) ALL MR 496 (S.C.)=(2001) 8 SCC 151 [Para 8,17,22]
Sushil Ansal Vs. State, 2014 ALL SCR 1162=(2014) 6 SCC 173 [Para 8,18,22]
Suleman Rahimkhan Vs. State of Maharashtra, AIR 1968 SC 829 [Para 9,11,21]

JUDGMENT

JUDGMENT :- Heard Mr. Borkute, learned counsel for the applicant, Mr. V.A. Thakre, learned Additional Public Prosecutor for respondent no.1/State and Mr. R.R. Vyas, learned counsel for respondent no.2.

2. The revision is preferred by the complainant in Sessions Trial No. 107 of 2015. The learned Sessions Judge, Wardha, in exercise of powers under Section 227 of the Code of Criminal Procedure, has discharged the respondent no.2/accused from Sessions Trial No.107 of 2015 for offences punishable under Sections 279, 304, 304-A, 337 and 338 of the Indian Penal Code and Sections 184 and 185 of the Motor Vehicles Act read with Rule 3(74)(A)(B) of the Maharashtra Motor Vehicles (Regulations for School buses) Rules, 2011.

3. The relevant facts for deciding the issue involved in the present revision are as under:-

The present applicant lodged first information report with the respondent no.1 on 23.04.2014 claiming that his son Ashay, aged about 9 years, is studying in Bodhisattva Dr. Babasaheb Ambedkar Public School, Gunjkheda, in the academic year 2013-2014. It is further claimed that he was transported in a school van bearing No. MH-32-C-373 on 23.04.2014 at about 8 a.m.. The said vehicle met with an accident with truck, in which there were about 11 passengers. The said van was driven by one Nilesh Tamgadge and also two teaching staff was being transported in the said van. The said van dashed against the truck from backside, as a consequence, said Ashay, son of the complainant, another student aged about 5 years Samrat Praful Kale, died on the spot, whereas the remaining students and teaching staff were injured resulting into registration of the Crime for an offence punishable under Sections 279, 337, 304-A read with Section 184 and 185 of the Motor Vehicles Act and other relevant provisions of the Maharashtra Motor Vehicles (Regulations for School buses) Rules, 2011.

4. Upon investigation, in all four accused were chargesheeted which includes Nilesh Tamgadge-driver of the vehicle, Mohd. Salim Abdul Gaffar-driver of the truck, Chandrasen Dongre i.e. present respondent no.2, Lata Tembhurne/Lata Dangre-wife of the respondent no.2 as the accused for an offence punishable under Section 279, 304, 304-A and 337 of the Indian Penal Code read with Section 184 and 185 of the Motor Vehicles Act, and other relevant sections of the Maharashtra Motor Vehicles (Regulations for School buses) Rules, 2011.

5. The present respondent no.2-, who is accused no.3, moved an application under Section 227 of the Cr.P.C. for discharge on 18.06.2006 before the District and Sessions Judge, Wardha, in which it is claimed in the alleged incident, which has resulted into filing of the charge-sheet against him, he was not on the spot of the incident. According to him, the applicant cannot be charge-sheeted for both the offences i.e. under Section 304 and 304-A of the I.P.C. He is neither owner of the vehicle nor he has driven the same. The witnesses have not stated any active role being played by the applicant in the offence in question and as such he cannot be held responsible.

6. The said claim was objected by the Additional Public Prosecutor by filing a reply, praying rejection of the prayer. By the order impugned dated 02.12.2017, the learned Additional Sessions Judge, allowed the application and discharged the applicant/accused in exercise of powers under Section 227 of the Cr.P.C. As such this revision.

7. The learned counsel for the applicant would invite attention of this Court to the charge-sheet and submit that the vehicle in question in which in the ill-fated students and the teaching staff was transported, was not registered as a school bus/school van and there are no safety features in the said vehicle. According to him, the accused no.1 who hold a learner's licence was driving the van under the influence of liquor, who is an employee of the present respondent no.2, a fact which is ignored by the learned Sessions Judge. He would then urge that the post mortem report depicts the cause of death due to head injury. The accused no.4 who is owner of the said vehicle, is the wife of this respondent no.2/accused no.3 and it is the present respondent no.2 who is the President of the Educational Society for whom the school children and teaching staff was transported, is a person behind using the vehicle for an illegal use of the vehicle. He would then invite attention of this Court to the statement of witness Sunil Dayaram Wankhede, so as to claim that the fact that the accused no.1 was not competent to drive the vehicle was brought to the notice of the present respondent no.2 and still he has permitted the accused no.1 to drive the vehicle. According to him, learned Sessions Judge ignoring the statements of witnesses recorded under Section 161 of the Cr.P.C., has proceeded to discharge the accused. He has prayed for quashing of the order impugned.

8. Per contra, learned APP Mr. Thakre, would strenuously urge that the learned Sessions Judge has committed an error of law in exercising the jurisdiction in discharging the accused. He supports the contention raised by the learned counsel for the applicant and submits that the view expressed by the learned Judge is contrary to the settled principles. From the contents in the charge-sheet, it can be easily inferred that the ingredients of sections are prima facie satisfied. He would also rely upon the judgment of the Apex Court in the matter of M.S. Grewal .vs. Deep Chand Sood reported in (2001) 8 Supreme Court Cases 151 : [2001(4) ALL MR 496 (S.C.)], particularly paragraphs 24 and 25. In addition, he would draw support from the judgment of the Apex Court in the matter of Sushil Ansal .vs. State reported in (2014) 6 Supreme Court Cases 173 : [2014 ALL SCR 1162] paragraphs 56, 59, 69, 72, 76 to 79 and 125 so as to claim that the respondent no.2 can very well be held responsible for the offences with which he is charged.

9. Mr. Vyas, learned counsel for the respondent no.2 who is accused no.3 and is discharged, would invite attention of this Court to the judgment of the Apex Court in the matter of Suleman Rahimkhan .vs. State of Maharashtra reported in AIR 1968 SC 829, particularly paragraphs 3,6,8,9 and 12 so as to justify the order passed by the learned Sessions Judge. According to him, there is no direct nexus between the death of the students, the accident occurred and the present respondent no.2. He would then urge that in the case referred supra, the Apex Court has held that there is no presumption in law that a person who possesses only learner's licence and possesses no licence at all, did not know driving. He would then urge that there is no material on the record to infer rash and negligent driving and in any case the fact remains that the applicant was not at the driving seat. In addition, the submissions of Mr. Vyas is that the criminal negligence and the civil negligence are based on different parameters. According to him, for an offence of criminal negligence, there has to be mens rea on the part of the respondent no.2, which is absent in this case. He sought rejection of the present application as according to him there is no error of jurisdiction or error of law.

10. Considered rival submissions.

11. Perused the case diary in detail including the statements of witnesses recorded under Section 161 of the Cr.P.C. In an application under Section 227 of the Cr.P.C at Exh.30, the applicant has claimed that he is a bank employee as well as trustee of International Buddhist Mission Trust, the society registered under the Societies Registration Act, 1860, which is running a school viz. Bodhisattva Dr. Babasaheb Ambedkar Public School since 2007. According to him, there was no intention to cause death and he cannot be charged simultaneously under Section 304 or Section 304-A of the I.P.C. He has claimed in the application that the cause of death was due to parking of the truck in the middle of the road, with whom the van is dashed, in which the students were transported. He has also referred to a statement of witness Sunil Wankhede in paragraph 12 including that of the statement of other witnesses. According to him but for his status as a trustee of the school, he has no other role to play in the matter. He has also claimed that he has no knowledge that such act of engaging accused no.1 would cause death or bodily injury. The learned Sessions Judge in most cryptic manner, for the following reasons, has allowed the application:-

(a) the applicant is a trustee and not driver of the vehicle, as such he cannot be held responsible,

(b) there was no mens rea on the part of the applicant as can be inferred from the judgment of the Apex Court in the matter of Suleman Rahimkhan (supra),

(c) there is no presumption in law that a person holding learner's licence does not know driving and

(d) there is no direct nexus of the applicant with the offence in question.

12. The applicant's wife is also a co-accused who is charge-sheeted in the crime in question, in whose name the vehicle i.e. van in question was registered. Admittedly the said van is not registered as a school bus.

13. In the investigation, the statement under Section 161 of the Cr.P.C. was recorded of various witnesses including that of the parents of the students who were transported, the teachers and also the employees of the school. Sunil Wankhede claimed to be working in the school, run by the present applicant. In his statement, he stated that the applicant, Director and President of the Society, has appointed all teaching staff and he was authorized to supervise the working of the staff. According to him the school was not owning any school bus. From 2014, accused no.4 Lata wife of the applicant, who is owner of the ill-fated van, was being pressed into service for transporting the school kids and the teaching staff, which was driven by accused no.1 Nilesh, who was working as Peon in the said school. According to him, he had specifically told to the applicant that the accused no.1 is not able to drive the van in question properly and he should not permit to drive the said vehicle. However, the applicant has still permitted accused no.1 to drive the said vehicle. He has also stated in his statement that the fact about the accused no.1 is not having any experience and is not having a permanent driving licence was brought to the notice of the respondent no.2, which was also not acted upon by the present applicant. He has stated that if the present applicant would have accepted the suggestions of the said witness, the accident could have been avoided. The other witnesses to the incident including complainant Ashok, has stated that if the van in question would have been driven by the accused no.1 in a safe manner, the accident would not have happened and it is the present applicant, being the President of the Society, equally responsible. Similarly statement as given by another parents whose son Samrat, aged about 5 years died, viz. Praful Kale and so also the parents of the other students and the teaching staff of the applicant's school.

14. In the aforesaid background, if this Court appreciates the aspect of criminal negligence on the part of the present applicant, the fact remains that he is admittedly President of the Society and entire administration was carried out by him under his supervision, which includes pressing into service the ill-fated van in which two students have lost their life, for transporting the staff and students, employing unskilled driver i.e. accused no.1, not acting on the suggestion given by employee of the school Sunil Wankhede,

15. The fact that by employing an unskilled driver, who has secured the van from the house of the respondent no.2 for transporting the minor students and teaching staff and was under influence of the liquor, cannot be presumed at this stage, is not a fact within the knowledge of the respondent no.2. He having employed such a unskilled person whose driving may be dangerous to the life of the students and the staff, the vehicle not having safety gadgets as prescribed under the relevant School Bus Rules, is a fact is also within the knowledge of the respondent no.2. The statement of Sunil Wankhede, who was an employee of the respondent no.2, in categorical terms speaks of the fact about likelihood of accident because of the driving of the van by accused no.1, which was brought to the knowledge of the respondent no.2, is also required to be appreciated. From the aforesaid, the only inference which in my opinion, can be drawn, is the act on the part of the applicant cannot be ignored or viewed as a non-negligent act. There is material on the record that the act of the respondent no.2 of employing accused no.1 and using a vehicle owned by his wife, in the capacity of the President of the Society, for transporting the minor students, which is not fitted with any safety gadgets as that of the school van, may cause danger to the life of the students, was also within the knowledge of the respondent no.2 and still he has proceeded to use the van through the accused no.1. As such the very ingredients of Section 304-A of the I.P.C. are very much satisfied.

16. It is settled law that the defence of the accused is not required to be appreciated at the stage of deciding the application under Section 227 of the Cr.P.C. for discharge. The prosecution case as is brought before the Court through the charge-sheet is required to be accepted a prima facie truth for deciding the application for discharge and there is enough material from the statements of the witnesses recorded under Section 161 of the Cr.P.C., the other evidence such as learner's licence of the accused no.1, the medical test carried out by Doctor of accused no.1 who was found to be under influence of liquor, speaks voluminous about the satisfaction of ingredients of Section 304-A of the I.P.C.

17. In the matter of M.S. Grewal [2001(4) ALL MR 496 (S.C.)] (supra), the Apex Court in paragraphs 23 and 24 has observed thus : -

"23. Turning attention however on to the issue of vicarious liability, one redeeming feature ought to be noticed at this juncture that to escort the children was the duty assigned to the two teachers and till such time thus the period of escorting stands over, one cannot but ascribe it to be in the course of employment the two teachers were assigned to escort the students : the reason obviously being the children should otherwise be safe and secure and it is the act of utter negligence of the two teachers which has resulted in this unfortunate tragedy and thus it is no gainsaying that the teachers were on their own frolic and the school had done all that was possible to be done in the matter safety of the children obviously was of prime concern so far as the school authorities are concerned and till such time the children return to school, safe and secure after the picnic, the course of employment, in our view continues and thus resultantly, the liability of the school.

24. A profitable re-capitulation of facts depict that the criminal court has already found both the teachers guilty of utter negligence and convicted them under Section 304A IPC (which provides that whoever causes the death of any person by doing any rash or negligence act not amounting to culpable homicide shall be punished with). We are not inclined to record anything contra, save what stands recorded by the District Court in the criminal proceeding but we are constrained to record our anguish over the conduct of the teachers escorting the students even a simple rule of discipline and safety would have prompted the teachers not only not to go to the river where they went but no where near the river ought to have been the guiding factor children are children, fun and frolic stand ingrained in them and it is School/Teachers deputed for escorting who ought to be reasonably careful since entrusted with the safety this entrustment ought to have infused a sense of duty which should have prompted them to act not in the manner as they have so acted."

18. In the matter of Sushil Ansal [2014 ALL SCR 1162] (supra), the Apex Court was dealing with similar issue in regard to a fire at Uphar Cinema in New Delhi. The Apex Court held that such person who have grossly neglected in taking care and safety of the victims, can be held criminally liable. The Court has proceeded to appreciate what is meant by the rash and negligent act in the backdrop of requirement under Section 304-A of the I.P.C. The Apex Court in paragraphs 56, 57, 58, 59, 69 and 72 has observed thus: -

"56. Section 304A of the IPC makes any act causing death by a rash or negligent act not amounting to culpable homicide, punishable with imprisonment of either description for a term which may extend to two years or with fine or with both. It reads:

"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 imprisonment of either description for a term which may extend to two years, or with fine, or with both."

57. The terms 'rash' or 'negligent' appearing in Section 304A extracted above have not been defined in the Code. Judicial pronouncements have all the same given a meaning which has been long accepted as the true purport of the two expressions appearing in the provisions. One of the earliest of these pronouncements was in Empress of India v. Idu Beg ILR (1881) 3 All 776, where Straight J. explained that in the case of a rash act, the criminality lies in running the risk of doing an act with recklessness or indifference as to consequences. A similar meaning was given to the term 'rash' by the High Court of Madras in Nidamarti Negaghushanam, In re (1871-74) 7 Mad HCR 119, where the Court held that culpable rashness meant acting with the consciousness that a mischievous and illegal consequence may follow, but hoping that it will not. Culpability in the case of rashness arises out of the person concerned acting despite the consciousness. These meanings given to the expression 'rash', have broadly met the approval of this Court also as is evident from a conspectus of decisions delivered from time to time, to which we shall presently advert. But before we do so, we may refer to the following passage from "A Textbook of Jurisprudence" by George Whitecross Paton reliance whereupon was placed by Mr. Jethmalani in support of his submission. Rashness according to Paton means "where the actor foresees possible consequences, but foolishly thinks they will not occur as a result of his act".

58. In the case of 'negligence' the Courts have favoured a meaning which implies a 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 which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection.

(iii) What constitutes Negligence?:

59. The expression 'negligence' has also not been defined in the Penal Code, but, that has not deterred the Courts from giving what has been widely acknowledged as a reasonably acceptable meaning to the term.

69. In Dabwali Fire Tragedy Victims Association v. Union of India and Ors., (2001) 1 ILR Punjab & Haryana 368 to which one of us (Thakur J.) was a party, the High Court of Punjab & Haryana held that both the school, as well as the owners of a premises on which the school function was held, were liable as occupiers for the tragic death of 406 persons, most of them children, caused by a fire which broke out on the premises during the function. In dealing with the question whether the owners of the premises, Rajiv Marriage Palace, being agents of the school could be held accountable, the High Court held as follows:

"..The School ought to have known that in a function which is open to general public, a Pandal with a capacity of 500 to 600 persons spread over no more than an area measuring 100' x 70', a gathering of 1200 to 1500 persons could result in a stampede and expose to harm everyone participating in the function especially the children who were otherwise incapable of taking care of their safety. The school ought to have known that the availability of only one exit gate from the Marriage Palace and one from the Pandal would prove insufficient in the event of any untoward incident taking place in the course of function. The School ought to have taken care to restrict the number of invitees to what could be reasonably accommodated instead of allowing all and sundry to attend and in the process increase the chances of a stampede. The School ought to have seen that sufficient circulation space in and around the seating area was provided so that the people could quickly move out of the place in case the need so arose. Suffice it to say that a reasonably prudent School Management organizing an annual function could and indeed was duty bound to take care and ensure that no harm came to anyone who attended the function whether as an invitee or otherwise, by taking appropriate steps to provide for safety measures like fire fighting arrangements, exit points, space for circulation, crowd control and the like. And that obligation remained unmitigated regardless whether the function was held within the School premises or at another place chosen by the Management of the School, because the children continued to be under the care of the School and so did the obligation of the School to prevent any harm coming to them. The principle of proximity creating an obligation for the School qua its students and invitees to the function would make the School liable for any negligence in either the choice of the venue of the function or the degree of care that ought to have been taken to prevent any harm coming to those who had come to watch and/or participate in the event. Even the test of foreseeability of the harm must be held to have been satisfied from the point of view of an ordinary and reasonably prudent person. That is because a reasonably prudent person could foresee danger to those attending a function in a place big enough to accommodate only 500 to 600 people but stretched beyond its capacity to accommodate double that number. It could also be foreseen that there was hardly any space for circulation within the Pandal. In the event of any mishap, a stampede was inevitable in which women and children who were attending in large number would be worst sufferers as indeed they turned out to be. Loose electric connections, crude lighting arrangements and an electric load heavier than what the entire system was geared to take was a recipe for a human tragedy to occur. Absence of any fire extinguishing arrangements within the Pandal and a single exit from the Pandal hardly enough for the people to run out in the event of fire could have put any prudent person handling such an event to serious thought about the safety of those attending the functioning especially the small children who had been brought to the venue in large numbers..."

72. To sum up, negligence signifies the breach of a duty to do something which a reasonably prudent man would under the circumstances have done or doing something which when judged from reasonably prudent standards should not have been done. The essence of negligence whether arising from an act of commission or omission lies in neglect of care towards a person to whom the defendant or the accused as the case may be owes a duty of care to prevent damage or injury to the property or the person of the victim. The existence of a duty to care is thus the first and most fundamental of ingredients in any civil or criminal action brought on the basis of negligence, breach of such duty and consequences flowing from the same being the other two. It follows that in any forensic exercise aimed at finding out whether there was any negligence on the part of the defendant/accused, the Courts will have to address the above three aspects to find a correct answer to the charge."

19. The Apex Court then proceeded to consider the doctrine of causa causans while considering the dimensions for an offence punishable under Section 304-A of the I.P.C.

20. In the case in hand, what can be inferred from the material evidence available on the record and the conduct of the applicant as can be inferred, is that the accused was grossly negligent and his such negligence was the causa causans that resulted into death of the two minor students.

21. All these aspects particularly the requirement under Section 304-A of the IPC are very restrictively appreciated by the learned Sessions Judge keeping in mind the judgment in the matter of Suleman Rahimkhan (supra). The learned Sessions Judge has even not bothered to or taken pains to refer to the statements of the witnesses recorded under Section 161 of the Cr.P.C. and has proceeded to discharge the accused in most casual manner.

22. The least that was expected of the learned Sessions Judge is while dealing with an application for discharge under Section 227 of the Cr.P.C. , is to go through the evidence available on the record and consider whether the same satisfies the very ingredients of the Section with which the accused is charged. The learned Sessions Judge in a most ignorant and casual manner has proceeded to discharge the accused without considering the law laid down by the Apex Court in the matter of Sushil Ansal [2014 ALL SCR 1162] (supra) and also M.S. Grewal [2001(4) ALL MR 496 (S.C.)] (supra). Learned Sessions Judge should have been more diligent in a serious offence like the one in which two minor students have lost their life.

23. For the aforesaid reasons, the order passed by the learned Sessions Judge, impugned in the present revision is not sustainable. As such the revision is allowed, having noticed that the learned Sessions Judge has exceeded its jurisdiction in discharging the accused. As such the order impugned dated 02.12.2017 passed by the Sessions Judge in Sessions Trial No. 107 of 2015 is hereby quashed and set aside. It is directed that the accused be tried for the offence with which he is charged with. Let the trial be expedited in the facts and circumstances of the case, particularly having regard to the fact that the act of the management of indulging into such a gross and negligent criminal act, resulting into the death of the children, should be taken to its logical end expeditiously. The trial Judge shall decide the trial within a period of six months from today.

24. Unnecessary adjournments or non-cooperation on the part of the accused be viewed seriously and if the accused fails to cooperate, the learned Sessions Judge in expeditious disposal of the trial, the court may take out proceedings for cancellation of bail.

Revision allowed.