T.Krishnamoorthy v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE DEBANGSU BASAK CRR/12/2021 T. Krishnamoorthy ...

Petitioner Vs.

The State ...

Respondent For the petitioner : Mrs. Anjili Nag, Advocate For the State : Mr. Sumit Karmakar, Advocate Heard on : December 07, 2021 Judgment on :December 10, 2021 DEBANGSU BASAK, J.

1.

The present Revisional Application has been directed against the first information report bearing No. 81 of 2020 dated December 5, 2020 and the charge-sheet bearing No. 02 of 2021 dated January 15, 2021 filed in such police complaint. 2.

Learned advocate for the petitioner has submitted that the petitioner has not committed any criminal offence. The petitioner

has been implicated falsely in the first information report. Police has filed the impugned charge-sheet against the petitioner without any basis.

3.

She has submitted that, the petitioner is not the owner of the building concerned. It is alleged in the first information report that the petitioner allegedly engaged four labourers for the purpose of painting of house. It has been also alleged that, one of the labourer who died, pulled a wire and such wire was allegedly damaged, because of which he sustained electric shock and subsequently succumbed. She has submitted that, at the highest the petitioner can be sued for damages in a Civil Court by the heirs of the deceased. The petitioner cannot be charged under section 304(A)/34 of the Indian Penal Code. She has drawn the attention of the Court to the charge-sheet as also to the first information report.

She has submitted that, the existence of an allegedly damaged live wire at a place where the labourers were asked to do painting work at the house does not constitute an offence under Section 304A/34 of the Indian Penal Code. In support of such contention she has relied upon 2003 ILR (Karnataka) 4849 (Daljith Singh Ghai vs. State) and an unreported decision of this Hon'ble Court in CRR No. 011 of 2020 (Shri Murali Mohan vs. The State).

4.

Learned advocate appearing for the State has submitted that, the charge-sheet discloses the complicity of the petitioner in the offence. He has submitted that, the issue as to whether there was any negligence on the part of the petitioner and whether the incident is such that the petitioner can be tried under Sections 304(A)/34 of the Indian Penal Code is to be decided by the Trial Court. Such an issue according to him, is a mixed question of fact and law.

5.

Learned advocate for the State has submitted that, the petitioner had filed a petition for discharge before learned trial Court and did not press the same. Rather the petitioner has approached the High Court. Moreover, the same points as sought to be contended now can be raised at the time of recording the pleas under Section 251 of the Code of Criminal Proceeding, 1973. He has submitted that, the present petition be dismissed. 6.

The impugned first information report and the charge-sheet have genesis in an incident occurring on December 5, 2020. The impugned first information report had been registered with the Humfrygunj Police Station on December 5, 2020 on the statement of the complainant. In the first information report, the complainant has stated that, he had taken up the work of

painting a newly constructed house of the petitioner situated opposite to Middle School, Manglutan.

The complainant alongwith three persons including the deceased had been executing such painting work. At around 12 Noon on December 5, 2020 when the complainant alongwith three others were engaged in the job of painting, they were resting having their lunch when the deceased had connected his mobile phone with speaker and was listening to songs. Subsequently after the mobile phone of the deceased become power drained and in order to charge such mobile phone the deceased had pulled a wire from the ground floor to the first floor when by reason of damage in such wire the deceased sustained electric shock. The complainant had switched off the main switch. The complainant has called for police assistance. The complainant had taken the deceased in an Ambulance to the Primary Health Centre, Manglutan where the doctor declared the deceased dead. According to the complainant, the incident had occurred as petitioner kept a live wire in a negligent manner without proper safety.

7.

On the basis of the such first information report and the post mortem report the investigation officer had submitted the impugned charge sheet, charging the petitioner herein under Section 304 (A) of the Indian Penal Code. Aggrieved by such

action of the police, the petitioner has filed the present Revisional Application.

8.

In Daljith Singh Ghai (supra), a worker had slipped from third floor of factory while he was peeping down and died. In the facts of that case, the Court had held that the act of the deceased worker of peeping from the third floor cannot be attributed to the accused stating that there was rash or negligent act on the part of the accused. It cannot be said that negligence of the accused was patent to import mens rea. Mere carelessness is not sufficient to prosecute for the offence under section 304 (A) of the Indian Penal Code. In the facts of the present case, it has to be ascertained whether the petitioner had any connection with the damaged live wire on the floor or not. Such question is an issue of fact which requires trial for adjudication.

9.

In Shri Murali Mohan (supra), one worker was electrocuted and had subsequently succumbed to death while working in the marine dockyard for clearing one private boat. In the facts of that case, the Court had held that, failure to provide safety equipment to the labourers and failure to take due care and caution will have civil consequences without incurring criminal law. In the present case, it is not the question whether petitioner had failed to provide safety equipments, it is a question whether the

damaged live wire was lying at the premises or not and the complicity of the petitioner, if any, therein. 10.

An act of a party may entail both civil and criminal liabilities. Existence of a civil liability in respect of the same incident ipso facto does not absolve the person concerned from criminal liability. Such a person can be proceeded against to have an adjudication on both his civil and criminal liabilities. 11.

In the facts of the present case, there has been a death of a labourer engaged by the petitioner. A police complaint has been lodged against the petitioner. The police on conclusion of investigations have submitted a charge-sheet against the petitioner under Section 304(A)/34 of the Indian Penal Code. The petitioner has claimed that the petitioner is not the owner of the house where the labourers were engaged for the painting job. Ownership of the house has nothing to do with the charge of negligence against the petitioner. The petitioner had engaged the labourers for the painting job. It has to be ascertained as to whether the petitioner was negligent in keeping a damaged live wire or not leading to the death. That issue has to be left to be decided at trial as the petitioner has failed to establish by unimpeachable evidence at this stage that the petitioner cannot be held responsible.

12.

The petitioner has a civil liability arising out of the death of the deceased also. The existence of such civil liability of the petitioner is no ablution of the criminal liability of the petitioner. The nature and extent of the criminal liability, if any, of the petitioner has to be decided at the trial, in the facts and circumstances of the present case.

13.

Since an issue of fact has to be tried at the trial and since at this stage it cannot be said with certainty that petitioner is not liable as charged, it would be inappropriate to quash the proceeding as against the petitioner at this stage. 14.

In such circumstance, CRR/12/2021 is dismissed. (DEBANGSU BASAK, J.)