( 1 ) THIS revision has been filed under S. 482 of the Code of Criminal Procedure, against taking cognizance of the offence punishable under S. 304-A of the IPC, by the Judicial Magistrate First Class, Durg.

( 2 ) THE facts of the case are that the applicant No. 1 is a Superintendent working in the Bhilai Steel Plant, while the applicant No. 2 is a Chowkidar in The Bhilai Club, which is managed by the Officers of the Bhilai Steel Plant. Membership is open to the Officers of the Bhilai Steel Plant, HSCL, MECON and other Officers of SAIL posted at Bhilai, on payment of prescribed admission and monthly fees according to the bye-laws. The Governing Body of the said Club is an Elected Body. The applicant No. 1 was an Honorary Secretary of the said Club. The Club has a swimming pool. Entry into the pool is restricted to the members and their dependents. No guest is allowed. A Chowkidar is posted on the gate of the swimming pool, who permits the entry on presentation of the admission card.

( 3 ) ON 10-5-1988, one Rameshchandra, aged about 13 years, at 6-00 p. m. , entered into the swimming pool on the basis of the admission card of his father. Another boy, by name Rishi Aggarwal, aged about 17 years, surreptitiously entered into the premises. The Chowkidar could not have the knowledge of his entry into the swimming pool. Both the boys remained in the swimming pool for about an hour. About 18 to 20 persons were also present in the swimming pool. After a while, Rishi Agarwal was not seen and Rameshchandra became worried about him. The Luna Moped of Rishi and his clothes were in the premises, but Rishi could not be noticed. He, therefore, informed his parents and, subsequently, the parents of Rishi were informed. After a vigorous search, the dead body of Rishi was recovered from the swimming pool. The police-station Bhilai Nagar registered the crime No. 22/88 under S. 304-A of the I. P. C. Statements of number of persons were recorded and challan was presented in the Court of Judicial Magistrate First Class, Durg. From the charge-sheet, it appears that the police is of the view that there was no lifesaving guard, nor was there any notice of caution on the swimming pool. Hence, the applicants are alleged to be liable for their inaction hence their rash and negligent act.

( 4 ) THE argument of the learned counsel for the applicants is that the applicants did not commit any act which could be said to be rash or negligent which has to be proximate and immediate cause of death. The learned counsel relied on the cases reported in A. D. Bhatta v. State of Gujarat, AIR 1972 SC 1150 : 1972 Cri LJ 727, Kurban Hussain Mohd. Rangawalla v. Maharashtra State, AIR 1965 SC 1616 : 1965 (2) Cri LJ 550) and Suleman Rehiman v. State of Maharashtra, AIR 1968 SC 829 : (1968 Cri LJ 1013 ). The deceased Rishi Agarwal entered into the swimming pool surreptitiously and without notice of the Chowkidar. Had the Chowkidar seen him entering into the premises, he would not have permitted his entry. The death of Rishi Agarwal was merely accidental and not because of any act of the applicants. There is a difference between a tort and crime. The alleged negligence may give a cause of action under a tort, but not an action under criminal law. It is finally submitted that, by proceeding against the applicants, there would be an abuse of the process of the Court. Hence, the entire proceedings are liable to be quashed.

( 5 ) CRIMINAL rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the 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 in particular, which