Murray-Aynsley J:

It is only necessary to refer to one Indian Case an that is the case of Idu Bej reported in 3 Allahabad 776. He submits that all the authorities clearly show that to justify a conviction under s. 304A there must be wicked or gross negligence. Brodie, Assistant legal advisor for the respondent: To take a car out on the road with its brakes so maladjusted as to cause the car to swing violently across the road whenever the brakes are applied with any force is an act of gross negligence for which, whatever standard of negligence is adopted as the proper one, the accused is punishable under the Penal Code. He refers to Empress vs Bhutan, 1894, 16 All 472.

This appeal gives rise to an interesting point of law namely whether the degree of negligence required to support a conviction under s. 304A of the Penal Code is the same as that required to support a conviction for manslaughter under English Law. The text book writers and the Indian decisions seem to support the view that they do. But it appears to me to be dangerous to construe the Penal Code and similar Enactments by reference to similar provisions of English Law. Those responsible for the drafting of the Indian Penal Code deliberately departed from English Law in many important respects and I think one can only look at the Code as it stands and construe it as one would any other enactment. In English law there is for the purpose of the Criminal Law a double standard of negligence. In the judgment of Lord Atkin in Andrews v. Director of Public Prosecutions 1937 AC 576, it is held that negligence may be great enough to support a conviction for "driving without due care and attention", or for "driving recklessly or at a speed or in a manner which is dangerous to the public", but not great enough to support a conviction for manslaughter. That learned Lord says - "it is perfectly possible that a man may "drive at a speed or in a manner dangerous to the public and cause death and yet not be guilty of manslaughter". I do not think that is possible here. The section contains the words "rash" and "negligence". The latter word is one in common usage, both as a legal term and otherwise. I do not consider that there is any reason for giving it a special meaning in this case.

I would not go so far as to say that the degree of negligence necessary to support a civil action should be applied without reservation. A criminal charge and a civil action should be approached in a different spirit. But English Law has as I have said a double standard of negligence in criminal law, and I do not consider that s. 304A gives any basis for the suggestion that such a double standard should be applied here.

In the present case the learned Magistrate has held that the Appellant was guilty of negligence but not of such negligence as would be considered sufficient for conviction for manslaughter in England. In my opinion the facts of the case disclose a substantial and serious degree of negligence. Whether or no in the present case it would be sufficient for a conviction for manslaughter, it is in my opinion sufficient for a conviction under s. 304A, and the appeal must be dismissed.

Appeal Dismissed.