Important Point – Moral culpability of recklessness is not located in a desire to cause harm.

1. By this writ application under Article 226 of the Constitution of India, the petitioner- original accused No. 2 has prayed for the following reliefs:

“9 (a) To allow this petition:

(b) Your Lordship be pleased to issue a writ of mandamus or any other writ, order or direction, quashing and setting aside the FIR at Annexure A being I-CR No. 54 of 2014 registered with Lunawada Police Station, Mehisagar, qua the petitioner.

(c) Pending admission, final hearing and disposal of this petition, to stay the further proceedings of the FIR being I-CR No. 54 of 2014 registered with Lunawada Police Station, Mahisagar, qua the petitioner.

(d) To pass any other and further orders as may be deemed fit and proper.”

2. It appears that on 13th May, 2014, the petitioner herein and two other co-accused (accused No. 1 and accused No. 3) purchased the land bearing survey No. 498, part - 21 admeasuring 4047 sq. mtrs. by way of a registered Sale Deed.

3. On 23th May 2014, the accused No. 1 executed a Memorandum of Understanding for the development of the land with the accused No. 4 and accused No. 5. The accused No. 1, thereafter, preferred an application with the Central Gujarat Electricity Company.

4. On 26th May, 2014, the accused No. 1 preferred an application with the Central Electricity Company for shifting of the High Tension Electric Line passing over the property. On 9th June, 2014, the Electricity Company gave an estimate for shifting of the High Tension electric line to the accused No. 1.

5. On 1st July, 2014, the accused No. 1 made payment for shifting of the High Tension electric line to the Electricity Company.

6. The incident in question occurred on 19th July, 2014. It is the case of the prosecution that in the land in question, some excavation work was undertaken and the soil which was excavated was dumped in one part of the land. Since the soil was dumped, it became somewhat like a big heap. The deceased was passing through the land with his cattle. He entered the land with his cattle and is set to have climbed over the heap of soil which was dumped and got electrocuted by coming in contact with the High Tension electric line. On such accusation, the applicant herein is sought to be prosecuted for the offence of culpable homicide not amounting to murder punishable under Section 304 of the Indian Penal Code.

7. I have heard Mr. I.H. Syed, the learned counsel appearing for applicant, Mr. S.P. Hasurkar, the learned counsel appearing for the complainant and Mr. H.K Patel, the learned Additional Public Prosecutor appearing for the respondent - State of Gujarat.

8. In my view, even if the entire case of the prosecution is accepted as true, none of the ingredients to constitute the offence of culpable homicide not amounting to murder under Section 304 of the Indian Penal Code is satisfied. I have considered this issue at length in the case of Girish Maganlal Pandya vs. State of Gujarat, Criminal Miscellaneous Application No. 2942 of 2014 decided on 23rd March, 2015. In the said decision, I have considered the fine distinction between Section 304A i.e. rash or negligent act and Section 304 i.e. culpable homicide not amounting to murder. I quote the relevant observations as under:

“15. The relevant portion of Section 304 of the IPC reads as under:-

Whoever commits culpable homicide not amounting to murder shall be punished with and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;

With if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death.”

16. A plain reading of the above Section makes it clear that it is in two parts. The first part of the Section is generally referred to as “Section 304 Part-I” whereas the second part as “Section 304, Part-II”. It would thus, appear that if such bodily injury as is likely