The presence of an overt act coupled with criminal intention or knowledge is necessary for culpable homicide under Section 299 of the Indian Penal Code.

JUDGMENT :

(Sunil B. Shukre, J.)

1. Rule. Rule made returnable forthwith. Heard finally, by consent of learned counsel for the Petitioners and learned APP for Respondent No.1 State.

2. It is the submission of the learned counsel for the Petitioners that even though charge-sheet is filed under Section 304 read with Section 34 of the Indian Penal Code against both the Petitioners and although the learned Judicial Magistrate First Class has committed the case to the Sessions Court for its trial for an offence punishable under Section 304 of the Indian Penal Code, the fact is that by no stretch of imagination can it be stated that any offence of culpable homicide not amounting to murder as explained by the Exception 2 of Section 300 of the Indian Penal Code is committed in this case. He further submits that in this case, there is no homicide much less culpable, committed by the Petitioners and, for committing the offence of culpable homicide, some overt act on the part of the accused and that too with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death and as provided under Section 299 of the Indian Penal Code is required. He submits that such intention is conspicuously absent from the allegations made in the FIR. He relies upon the law laid down in the case of Shantibhai J. Vaghela and Anr. V. State of Gujarat, (2012) 13 SCC 231.

3. Learned APP for the Respondent-State submits that the allegations made against the Petitioners are specific in nature and it is because of their failure to provide proper safety belts and safety measures and leaving by them exposed vertical iron bars in the column, that the unfortunate death has occurred in the present case and therefore, it would be a matter of trial as to whether or not where there was any intention on the part of the accused persons in doing such an act as was likely to cause a fatal injury. He further submits that Petitioner No.2 has not been chargesheeted only because he is absconding and such conduct of Petitioner No.1 would dis-entitle him from invoking the jurisdiction of this Court.

4. Learned counsel for the Petitioners submits that the fact that Petitioner No.2 has been granted anticipatory bail itself shows that the Petitioner No.2 is not absconding and false charge-sheet has been filed in that regard. Learned counsel for the Petitioners submits that Petitioner No.2 has made his appearance before the Sessions Court and therefore, it cannot be said that his conduct is bad.

5. The submission of the learned counsel for the Petitioners regarding Petitioner No.2 not being an absconding accused anymore is accepted. As it is not in dispute that he has appeared before the Sessions Court, and therefore, there is no need for us to consider the conduct of Petitioner No.2 now.

6. As regards the merits of the matter, we find that if any criminal proceedings are to be quashed and set aside by this Court, the parameter on the basis of which an accused person is found to be fit for his being discharged from the criminal case by the Sessions Court under Section 227 of Criminal Procedure Code would, along with other relevant factors, also be relevant. For the sake of convenience, Section 227 of Cr.P.C. is reproduced as under:

“Section 227. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”

7. It is clear from the provisions made in Section 227 of the Criminal Procedure Code that after the learned Sessions Judge considers that there is no sufficient ground for proceeding against the accused then only he can discharge the accused for the reasons to be recorded in writing by him. It also shows that if there are sufficient grounds for proceeding against the accused i