• Anusuiya Kariyam W/o Shri Sachin Kariyam Aged About 40 Years R/o. Vil- lage v. 1. The State Of Chhattisgarh Through District- Magistrate Rajnandgaon, Distt.- Rajnandgaon
Case Details
1 2025:CGHC:18544-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1385 of 2025 • Anusuiya Kariyam W/o Shri Sachin Kariyam Aged About 40 Years R/o. Vil- lage- Aasra, Thana- Dongargaon, Distt.- Rajnandgaon (C.G.) (Age Correctly Mentioned) ... Petitioner(s) versus 1. The State Of Chhattisgarh Through District- Magistrate Rajnandgaon, Distt.- Rajnandgaon (C.G.) 2. Station House OfÏcer Police Station - Dongargaon, Distt.- Rajnandgaon (C.G.) ---- Respondents (Cause title taken from Case Information System) For petitioners For Respondent/State : Mr. Sangharsh Pandey, G.A. : Mr. Rajendra Patel, Advocate. Ramesh Sinha, Chief Justice Hon'ble Shri Hon’ble Shri Arvind Kumar Verma, Judge Order on Board Per Arvind Kumar Verma, Judge 24/04/2025 1. 2.
Legal Reasoning
then it would make amply clear that no offence or prima facie case is made out against the petitioner in the facts and circumstances of the case. He prays for quashment of criminal proceedings in Criminal Case No. 315/2025. 11. On the other, learned State counsel opposes the submissions made by the learned counsel for the petitioners and submits that the investigation has been done strictly in accordance with law and after completion of investigation the final report/charge-sheet has been filed before the trial Court and the learned trial Court had already taken the cognizance and the trial is in progress. 12. We have heard learned counsel for the parties and perused the materials available on record. 13. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge- sheet should be exercised sparingly and only in exceptional cases and Courts should not ordinarily interfere with the investigations of cognizable offences. However, where the allegations made in the FIR 8 or the complaint even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the FIR or the charge-sheet may be quashed in exercise of powers under Article 226 of the Constitution of India or inherent powers under Section 528 of the BNSS. 14. In the present case, admittedly, after completion of the investigation, charge-sheet has been filed against the petitioner and the learned trial Court has taken cognizance of the offences under Section 304-A/34 of IPC and the case has been fixed for framing of charge. 15. From perusal of the FIR and charge-sheet, it transpires that a hospital memo was received at P.S. Dongargaon from the CHC Dongargaon with regard to the information of dead patient with averment that a male person of age 2½ years was brought to CHC Dongargaon on 22.11.2023 and was certified to be dead on 2:35 pm, the name of the patient is Bharat Kumar Kanwar S/o Shri Satish Kumar Kanwar so on the basis of the said information merg intimation was recorded, post mortem was done in which it is stated that the cause of death is asphyxia due to drowning and merg investigation has been initiated and the statements of witnesses were recorded, however, the FIR was registered on 21.12.2024 against the unknown persons u/s 304-A. It was revealed from the statements of the witnesses that on the date of incident the deceased Bharat Kumar Kanwar aged about 2½ years was playing near the Anganbadi Center as usual with his friends and his house is situated about 30-50 meters from the place of incident and near the Anganbadi Center one septic tank is present which is not 9 covered and is also filled with some water and while playing the deceased accidentally fell into the septic tank and he died due to drowning in the water of the septic tank. It is also stated in the statements that the villagers had earlier advised the Sarpanch, Village Secretary and the present petitioner (Anganbadi Worker) to close/cover the lid of the septic tank but due to negligence of the concerned persons the above incident has taken place. After the completion of the investigation the chargesheet was filed by adding the names of the petitioner and other co-accused persons namely Smt. Ahilya Bai, Kajal Kariyam and Kishan Lal Koliyare by adding section 34 of IPC. Therefore, it cannot be said that no cognizable offence is made out. Hence, the present petition does not fall in any of such category, wherein, this Court can exercise jurisdiction under Section 528 of the BNSS. 16. In view of the above, we do not find it a case to quash the FIR bearing Crime No. 296 of 2024 dated 21.12.2024, charge-sheet dated 28.01.2025 filed by the Police Station Dongargaon, District Rajnandgaon (C.G.) and the order taking cognizance dated 06.02.2025 for the offence punishable under Section 304-A/34 and the consequential criminal proceedings bearing Criminal Case No. 315/2025 pending before the learned trial Court, as such, this petition is dismissed. Sd/- (Arvind Kumar Verma) Judge Sd/- (Ramesh Sinha) Chief Justice Jyoti Digitally signed by JYOTI JHA Date: 2025.04.28 10:34:44 +0530
Arguments
Heard Mr. Rajendra Patel, learned counsel for petitioners. Also heard Mr. Sangharsh Pandey, learned Government Advocate for the State/Respondents. The present petition has been filed by the petitioners with the following relief(s):- 2 “It is therefore prayed that this Hon’ble Court may kindly be allowed and the charge-sheet/Final Report No. 18/2025 dated 28.01.2025 of Crime No. 296/2024 for offence punishable under Section 304(A), 34 of IPC registered at P.S. Dongargaon District Rajnandgaon (C.G.) and the proceedings of Criminal Case No. 315/2025 pending before the JMFC Rajnandgaon as well as the order of taking cognizance dated 06.02.2025 with respect to the petitioner may kindly be quashed, in the interest of justice. 3. Brief facts of the case are that as per prosecution’s version, a hospital memo was received at P.S. Dongargaon from the CHC Dongargaon with regard to the information of dead patient with averment that a male person of age 2½ years was brought to CHC Dongargaon on 22.11.2023 and was certified to be dead on 2:35 pm, the name of the patient is Bharat Kumar Kanwar S/o Shri Satish Kumar Kanwar so on the basis of the said information merg intimation was recorded, post mortem was done in which it is stated that the cause of death is asphyxia due to drowning and merg investigation has been initiated and the statements of witnesses were recorded, however, the FIR was registered on 21.12.2024 against the unknown persons u/s 304-A. It was revealed from the statements of the witnesses that on the date of incident the deceased Bharat Kumar Kanwar was playing near the Anganbadi Center as usual with his friends and his house is situated about 30-50 meters from the place of incident and near the Anganbadi Center one septic tank is present which is not covered and is also filled with some water and while playing the deceased accidentally fell into the septic tank and he died due to drowning in the water of the septic tank. It is also stated in the statements that the villagers had earlier advised the Sarpanch, Village Secretary and the present petitioner 3 (Anganbadi Worker) to close/cover the lid of the septic tank but due to negligence of the concerned persons the above incident has taken place. After the completion of the investigation the chargesheet was filed by adding the names of the petitioner and other co-accused persons namely Smt. Ahilya Bai, Kajal Kariyam and Kishan Lal Koliyare by adding section 34 of IPC. Based on the allegation in the FIR bearing Crime No. 730/2024, registered at Police Station Ratanpur, District Bilaspur, the petitioners were registered under Sections 109, 221, 132 and 324(4) of the Bharatiya Nyaya Sanhita, 2023. The petitioners were taken into custody and their case was subsequently investigated by the police authorities. 4. Learned counsel for the petitioners would submit that the septic tank has been constructed by the Gram Panchayat and it was the duty of the Gram Panchayat to cover the tank as they have constructed it and because of the omission of the same by the Gram Panchayat the petitioner cannot be held liable. The Gram Panchayat is responsible for maintenance of the septic tank not the petitioner, she is only the Anganbadi worker, her duty is to serve at the Anganbadi Center only and since there was no legal duty casted upon her and there was no such breach of any legal duty the ingredient of negligent act as mentioned in section 304-A of IPC is not fulfilled. Even otherwise the petitioner had informed the Gram Panchayat several times about the open septic tank but no necessary steps were taken and she has also mentioned this fact in her reply submitted before the CEO in the departmental proceedings. 5. Learned counsel for the petitioner further submit that the petitioner has 4 also been suspended from her service due to the said incident and the further proceedings of which are pending till date, further, no criminal liability of the petitioner can be made out as there is no mens rea or knowledge to commit the offence. The septic tank was situated in the open area as there was no boundary wall of the anganbadi center and further it is not the case where the deceased child has escaped the custody of the petitioner, instead the house of the deceased is situated in the nearby area, he was playing with his friends usually and the said fact was also not in the notice of the petitioner. 6. Learned counsel for the petitioner further submits that as per section 304-A there must be some negligent Act by the accused but in the instant case there is no such act or omission by the petitioner so as to bring home the offence under section 304-A. The essential ingredients of Section 304A of IPC are that (1) There must be the death of a person; (2) The death must be caused by the act of the accused; (3) The death must be caused due to any rash or negligent act of the accused; and (4) the act of the accused must not amount to culpable homicide. Section 304A of IPC applies when there is a direct link between the rash or negligent act of the accused to the death of the person that is in question. The act must result in the immediate cause for the death. A conscientious reading of the words used in Section 304A of IPC makes it clear that that the act must be reasonably capable of resulting in death, which the perpetrator of the act takes the risk of causing and also that the mens rea must fall short of it. 5 7. Learned counsel for the petitioner relied upon a judgment of the Hon’ble Supreme Court in the matter of Malay Kumar Ganguly vs Sukumar Mukherjee & Ors, reported in AIR 2010 SUPREME COURT 1162 2009 (9) SCC 221 Hon'ble Court held as under :- 176. The essential ingredients of Section 304-A are as under: (i) Death of a person. (ii) Death was caused by the accused during any rash or negligent act.(ii) Act does not amount to culpable homicide. And to prove negligence under criminal law, the prosecution must prove: (i) The existence of a duty. (ii) A breach of the duty causing death. (iii) The breach of the duty must be characterised as gross negligence.(See R. v. Prentice (1994 QB 302: (1993) 3 WLR 927: (1993) 4 All ER 935]. 178. Criminal negligence is the failure to exercise duty with reasonable and proper care and employing precautions guarding against injury to the public generally or to any individual in particular. It is, however, well settled that so far as the negligence alleged to have been caused by medical practitioner is concerned, to constitute negligence, simple lack of care or an error of judgment is not sufÏcient. Negligence must be of a gross or a very high degree to amount to criminal negligence. 180. The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be (sic of a) much high degree. A negligence which is not of such a high degree may provide a ground for action in civil law but cannot form the basis for prosecution." 8. Further, learned counsel for the petitioner also relied upon a judgment of the Hon’ble Supreme Court in the matter of Suleman Rehiman Mulani v. State of Maharashtra, 1967 SCC OnLine SC 337: (1968) 2 SCR 515: (1968) 2 SCJ 314: AIR 1968 SC 829 Hon'ble Supreme Court held as under :- 6 "10. Section 304-A says "Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." The requirements of this section are that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of accused was the proximate cause of the death. There must be direct nexus between the death of a person and the rash or negligent act of the accused. As mentioned earlier there is no evidence to show that it was rash or the negligent act of the accused that caused the death of the deceased." 9. Learned counsel for the petitioner relied upon a judgment of the Hon’ble Supreme Court in the matter of Jacob Mathew vs State Of Punjab & Anr decided on 5 August, 2005 AIR 2005 SUPREME COURT 3180 = 2005 (6) SCC 1 Hon'ble Supreme Court held as under :- (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly." "It has been held that while negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; criminal negligence is the gross 7 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 having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. In our opinion, the factor of grossness or degree does assume significance while drawing distinction in negligence actionable in tort and negligence punishable as a crime. To be latter, the negligence has to be gross or of a very high degree." 10. Learned counsel for the petitioner submits that bare perusal of the law laid down in the above mentioned cases would show and if it is applied