ORDER
Ramesh, J.
1. Heard the learned Counsel appearing for the petitioners and the learned HCGP.
2. This petition is filed assailing the order of the JMFC., Chittapur, in directing the registration of the case against the petitioners for the offence punishable under Section 304A IPC by order dated 1.3.2000 in C.C. No. 131/2000 wherein the facts are on 7.4.1998, at about 1.30 PM or so, one Jalaluddin, an employee of M/s. Associated Cement Cos. Ltd. whose service was being utilised in the factory premises at Wadi has stationed himself in the third floor of the factory building at the time the complainant Babulal was also accompanying the deceased and they were engaged in lifting iron weights weighing 50 kgs. for weighing kiln material and from the ground floor those weights were being tied by a rope by Basavaraj and they were lifting the same and they had to lift about 100 such iron weights. Since morning they had lifted 17 such weights and while lifting the 18th weight, rope was dropped and, while Basavaraj was in the process of tying the rope on the ground floor the deceased Jalaluddin went near the pulley on the 3rd floor and was peeping through the hole near the pulley by kneeling down and while watching the tying of the rope to the weight the said Jalaluddin slipped and fell down from the third floor and sustained severe head injury and on the way to a major hospital he succumbed to the injuries.
3. On this UDR complaint was registered. Later, after completion of the investigation, a charge sheet was filed for the offence under Section 304A IPC. The same has been assailed in this petition challenging the taking cognizance and contending that there is no negligence or rashness on the part of the petitioner in relation to the death of Jalaluddin as no basic essential ingredient of constituting the offence under Section 304A IPC. is made out.
4. The point that arises for consideration in this petition is whether taking cognizance of the offence under Section 304A IPC, by the JMFC., Chittapur, against the petitioner and the proceeding pending therein is liable to be quashed.
Case referred: AMBALAL D.BHATT v. THE STATE OF GUJARAT
5. At the outset it is the argument of the Counsel appearing for the petitioners that to attract the offence under Section 304A there must be rash and negligent act and also it is submitted that to attract the offence as defined under Section 36 IPC there must be either an act or omission to fix up the liability and submitted that there is neither an act nor omission to constitute an offence and to fix up the liability on the petitioners.
6. It is well settled that the very foundation to constitute an offence there must be an act or omission on the part of the petitioner as defined under Section 36 of the Act but for the purpose of Section 304A IPC there must be rash or negligent act on the part of the petitioner which has led to the death of the deceased. As noted in the averments of the complaint, the death of the deceased was due to the slip when he was peeping down through the hole near a pulley to see whether the stone had been tied to the rope. The allegation is that the occupier has not provided safety and protective measures which led to the fall and consequently death of the deceased. This act of the deceased cannot be attributed to the petitioners stating that there was a rash or negligent act on the part of the petitioners. Under the facts and circumstances of the case the degree of negligence or omission is the determining factor to call the act as criminal and in addition to that, there must be mens rea in criminal negligence. On the facts noted, it cannot be said that negligence of the accused was so patent to import mens rea. Mere carelessness is not sufficient to prosecute for the offence under Section 304A IPC. Of course, when he was peeping through the pulley from the third floor towards the ground, and if there was no safety being provided, it is altogether a different act which does not attract Section 304A IPC and there may be civil consequence for not providing proper measure in safeguarding the interest of the employees or else occupier is liable under the provisions of the Factories Act, if there is violation of any of the conditions regarding safety measures. Patently as noted, none of the ingredients are made out to attract the offence under Section 304A IPC. Despite the fact that the complaint has been filed, cognizance taken and the charge sheet filed, there is nothing that survives for consideration to proceed against the petitioners since at the inception itself when the act alleged does not attract the penal clause under Section 304A and the same has been reinforced in the above cited decision of the Apex Court, that the act causing death “must be the causa causans; i.e. the act of causing death must be causa sine qua non”.
7. In view of the above observations, the petition is allowed. The proceedings before the J.M.F.C., Chittapur in CC No. 131/00 against the petitioners taking cognizance thereunder by order dt. 1.3.00 for the offence under Section 304A IPC. are quashed.