A mere presence or negligence does not establish criminal liability under IPC unless backed by intent or positive action.

O R D E R

This is a criminal revision petition filed under Sections 397 and

401 of the Code of Criminal Procedure . Petitioner is the 2nd accused in S.C.No.542/2016 pending before the Additional Sessions Court, Thalassary, where himself and the 1st accused face allegations under Section 304 read with 34 of the Indian Penal Code . The unfortunate incident, which led to the registration of crime No.415/2015 of Payyavoor police station, had happened on 15.7.2015 at 15.45 hours. The petitioner is a teacher in Hindi in Cherupushpa U.P. School, Chandanakampara. That day the incident had happened in bus No.KL-59 L 3288 owned by the said school while taking the children back to their respective houses. The bus was driven by the 1st accused and the petitioner was temporarily deployed that day for taking care of the children, in the absence of the 'Ayah'.

2. Going by the charge sheet, that day at 15:45 hours when the bus reached at a place by name Mavumchal in Payyavoor amsom, the 1st accused, knowing that his act would cause the death of the child, kept open the hydraulic door of the bus causing the child to fall on the road through the door and then the rear tyre of the vehicle ran over the child and caused his death. While the bus was moving ahead, it fell into a pit and in the shake that followed, the bag carried by the four year old boy, Godwin, S/o. Abhilash, who was sitting near the side seat of the door, fell down; when he was about to catch hold of the bag, the child happened to slip out of the bus through the door and the hind left wheel ran over the child resulting in his instantaneous death. Thus Annexure- A1 FIR was registered in Payyavoor police station against the driver of the bus alleging offence under Sections 279 and 304A of the IPC .

3. After completion of investigation, charge sheet was laid alleging offence under Section 304 read with 34 of the IPC against the driver as well as the petitioner, showing him as the 2nd accused. When appeared before the Sessions Court, he moved an application under Section 227 of the Cr.P.C. which was dismissed by the Court by the impugned order dated 02.12.2020. By the said order, the application for discharge was dismissed. Aggrieved by the same the petitioner has moved this Court in revision under Section 397 of the Cr.P.C.

4. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor elaborately.

5. Inviting my attention to Annexure-A2 report of the Motor Vehicles Inspector issued after inspecting the vehicle, the learned counsel pointed out that the pneumatic control door of the bus was not functioning properly and at the time of the accident, it was remaining open. According to the learned counsel, even assuming that there was some negligence or act which resulted in the death of the child, only the driver can be held responsible and the petitioner who was only travelling along with the children had no role in the control of the vehicle or the door. Referring to Sections 299 and 304 of the IPC he said that in order to attract any ingredient under Section 304 there must be positive act played by the accused persons. Moreover, it is far-fetched to say that he had acted in furtherance of any common intention for causing the death of the child. Independently also such an allegation will not lie against the petitioner.

6. Inviting my attention to a certificate issued by the Head Master dated 20.07.2015, the learned Senior Public Prosecutor submitted that he was deployed that day to take care of the children travelling in the bus. According to him, there are materials to suggest that at the time of the incident he was standing at the door. Learned Public Prosecutor argued that the petitioner can prove his innocence only after trial.

7. After hearing counsel on both sides, I have no doubt in my mind that the allegations against the petitioner are far-fetched and unfounded. In order to attract an offence under Section 304 of the IPC , as rightly point