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GUJARAT HIGH COURT
Nikhil S. Kariel, J.
Dharmendrabhai @ Bakabhai
Joitaram Patel and Ors. —Applicants
versus
State of Gujarat and Ors. —Respondents
R/Criminal Misc. Application No.5325 of 2013 with R/Criminal Misc. Application
No.25358 of 2017
Decided on 6.5.2022
(A) Indian Penal Code, 1860 – Sections 304 (Part-II), 337, 338 and 114 – Criminal Procedure Code, 1973 – Section 482 – Murder – Culpable homicide not amounting to murder and grievous hurt – Quashing petition – While FIR alleges commission as well as omission on part of applicants, which according to FIR, had led to death of three labourers, technical experts had clearly opined that incident was a construction accident and not on account of any human negligence – FIR as well as charge-sheet papers do not indicate any overt act by commission or even an act of omission on part of any of accused – Act in question, more particularly for alleging offence under Sections 337 and 338 of IPC, should be extremely grossed – In instant case, neither FIR nor charge-sheet papers reveal any act of commission or omission by applicants herein which could be so gross so as to bring said act under ambit of Sections 337 and 338 of IPC – Neither FIR nor charge-sheet papers even prima facie point out to any mens rea of applicants which is essential for a negligent act to be brought in ambit of criminal liability – Neither allegations in FIR taken it at face value nor material collected during investigation reveal commission of any offence by present applicants – Impugned FIR deserves to be quashed, as to ensure that ends of justice are secured – Impugned FIR as well as all other consequential proceedings arising therefrom, quashed and set aside qua applicants. (Paras 11, 13, 16, 22, 24, 26, 27 and 28)
(B) Indian Penal Code, 1860 – Sections 337 and 338 – Grievous hurt – Negligence in civil law may not be necessarily a negligence in criminal law – Act which is sought to be punished is act which is done rashly or negligently resulting in either endangering of human life or personal safety – Primary ingredient of offence punishable under Sections 337 and 338 and offence punishable under Section 304A is that act concerned should be done rashly or negligently. (Paras 19.1, 20 and 21)
Result: Applications allowed. Criminal Proceedings quashed.
Key Points:- The judgment holds that the act must be done rashly or negligently with a high degree of negligence (gross) to attract Sections 337, 338, and 304A; mere civil negligence or non-gross negligence cannot support criminal liability. (!) (!) (!) (!) (!) (!) - Technical reports by government/experts concluded the incident was a construction accident not caused by human negligence; FIR/charge-sheet lacked prima facie evidence of overt acts or mens rea by the applicants; these findings support quashing the FIR. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) - The court relies on extraordinary/inherent powers to quash proceedings where the allegations do not prima facie constitute an offence or are unsupported by evidence. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) - The decision emphasizes that there must be at least prima facie material showing act done with knowledge likely to cause death for 304(Part-II); absence of such material leads to quashing. (!) (!) (!)
JUDGMENT (ORAL)
Nikhil S. Kariel, J.—Heard learned Senior Advocate Mr. J.M. Panchal with Advocate Mr. Nandish Thacker for Thakkar and Pahwa Advocates for the applicants and learned APP Ms. M.D. Mehta for the respondent-State in Criminal Misc. Application No. 5325 of 2013 and learned Advocate Mr. K.P. Raval with learned Advocate Mr. Manav Mehta for the applicants and learned APP Ms. M.D. Mehta for the respondent-State in Criminal Misc. Application No. 25358 of 2017.
2. Issue Rule in Criminal Misc. Application No. 5325 of 2013. Learned APP 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 being C.R. No.I- 29 of 2013 registered with Mahidharpura Police Station, Surat, on 28.02.2013, for the offences punishable under Section 304 (Part-II), 337, 338 and 114 of the Indian Penal Code.
4. The said FIR which is registered at the instance of the respondent No.2 in both the applications, being the Police Sub Inspector, Mahidharpura Police Station, inter alia alleges that the incident in question had happened near the Delhigate Cross Road, opposite to Amisha Hotel, Lucky Tower, on Una Pani Road, in the jurisdiction of the Police Station concerned with regard to a construction of a flyover on the said road. It is alleged that on 26.02.2013 at 19:15 Hours, when the construction of RCC work a structure of iron cage was being made along with work of tying of vertical iron rods of 25 m.m. in thickness and 18 meters in length and whereas it is alleged that the accused who had taken contract of building the flyover, caused the work be done in an irresponsible manner and whereas an accident had happened when the vertical iron rods had fallen on the iron cage structure, inside which, the workers were working, resulting in death of three workers and injuries sustained by three other workers.
5. The applicants of Criminal Misc. Application No. 5325 of 2013 are the Directors of one M/s Rajkamal Builders Infrastructure Pvt. Ltd., who had entered into a contract for building of the flyover with the Surat Municipal Corporation and the applicants of Criminal Misc. Application No.25358 of 2017 are the engineers working for M/s S.N. Bhobe Associates Pvt. Ltd., who had entered into a project management contract with the Surat Municipal Corporation.
6. Learned Senior Advocate Mr. J.M. Panchal for the applicants would submit that the applicants of Criminal Misc. Application No. 5325 of 2013, are Directors of the company named hereinabove, and the said company is well known private company established in the year 1979 and whereas it is holding ‘AA’ Category licence since the year 1999. Learned Senior Advocate Mr. Panchal would submit that the said company has constructed approximately 50 to 60 bridges and flyovers in the State of Gujarat. It is further submitted by the learned Senior Advocate that the company has constructed various flyovers in Ahmedabad also, prominent among them being the flyovers at Shivranjini Cross Road, Helmet Cross Road, AEC Cross Road, and whereas the company has also constructed over bridges in Ahmedabad, prominent among them being the Sabarmati-AEC over bridge and the railway over bridge at Sola, etc.. It is further submitted by the learned Senior Advocate that the work of the over bridge in question was started in the year 2009 and whereas the work order had been revised in the year 2011. Learned Senior Advocate Mr. Panchal would submit that while the work of construction was being carried out, as per supervision of engineers of the M/s S.N. Bhobe Associates Pvt. Ltd. who were engaged as Project Management Consultant. According to the learned Senior Advocate, the incident in question was an accident and whereas the applicants as Directors of the company could not be held vicariously liable for the alleged negligence with regard to incident in question, more particularly the applicants as Directors were neither present at the site nor had
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