Sekar v. State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 19.8.2009CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULCrl.R.C.No.1661 of 2008andM.P.No.1 of 2008SekarPetitionervs. State of TamilnaduSHO Mylam Police Station,Villupuram District. RespondentCriminal Revision Case filed under sections 397 and 401Cr.P.C. to call for the records in Crl.M.P.No.20 of 2008 inS.C.No.117 of 2008 dated 21.11.2008 on the file of the AdditionalDistrict and Sessions Judge, Fast Track Court No.2, Tindivanam,quash the same and discharge the petitioner.For petitioner: Mr.I.Subramaniam, Senior Counsel for Mr.M.DevarajFor respondent : Mr.N.Kumanan, Govt. Advocate (Crl. Side)ORDERThe first accused in S.C.No.117 of 2008 on the file of thelearned Additional District and Sessions Judge (Fast Track CourtII), Tindivanam filed a petition invoking the provision undersection 227 of the Code of Criminal Procedure seeking dischargefrom the criminal proceedings but, the learned Additional Districtand Sessions Judge (Fast Track Court II), Tindivanam chose todismiss the plea for discharge. Hence, the present criminalrevision case before the court. 2. The petitioner would contend that he is the proprietor andlicence holder of Sri Sakthi Explosive situate at Padirapuliyur andThenalapakkam. He is a licenced blaster entitled to detonate theexplosive under the Explosives Act, 1908. He entered into amemorandum of undertaking dated 7.4.2007 with M/s.SPL InfrastructureConstruction which is engaged in the business of laying and https://hcservices.ecourts.gov.in/hcservices/ expanding Highways. Under the terms of the said M.O.U, hedespatched electric detonators and certain quantity of slurry in ajeep belonging to the petitioner. An accident was reported. Theinvestigation would reveal that the explosion was as a result ofthrowing of mud on the explosive laden vehicle when smoke was comingtherefrom by the people thronged to the place. Neither slurry northe detonator ignited by itself. Further, the accident had takenplace only on account of the negligence on the part of the deceasedaccused 2, 3 and 4. They did not warn the general public and as aresult of their callous behaviour, the explosion had taken placecausing loss to life and property. No ingredients of the offencesunder sections 324, 326, 429, 286 and 304(ii) of the Indian PenalCode were made out. Therefore, he has sought for discharge fromthe criminal prosecution. 3. The respondent police, having investigated the case, filedfinal report as against the petitioner and five others of whom A2,A3 and A4 had died in the accident itself. The charge would readthat the petitioner and other accused committed offences undersections 324, 326, 427, 429, 168, 268, 286 and 304 part II of theIndian Penal Code read with section 4 of the TNPPD Act and alsounder sections 9B(1)(b) 3(c)(ii) of the Explosives Act, 1884 andsection 3(b) of the Explosive Substance Act, 1908. 4. The Trial Court, having adverted to the materials on record,has come to a decision that there is a prima facie case forcharging the petitioner/first accused under the aforesaid penalprovisions and consequently dismissed the petition seekingdischarge. 5. Learned Senior Counsel appearing for the revision petitionerwould confine his argument with respect to the charge under section304(ii) of the Indian Penal Code and section 3(b) of the ExplosiveSubstances Act. Though the revision petitioner challenged thecharge as against him under the aforesaid penal provisions andpreferred the revision challenging the dismissal of the plea for thedischarge from the entire criminal proceedings, now the revisionpetitioner wants the charge under section 304(ii) of the IndianPenal Code and section 3(b) of the Explosive Substances Act bedropped. 6. The learned Senior Counsel appearing for the petitionerwould submit that even as per the own showing of the prosecution, itis only a case of pure accident. Just because many precious liveswere lost in the accident and property damage to the tune of severallakhs also has been caused on account of the accident, no motive canbe attributed to the petitioner for the occurrence which took placeon account of the accidental explosion. He would also submit thatthe statements collected by the investigating agency would disclose https://hcservices.ecourts.gov.in/hcservices/ that on account of throwing of sand over the explosive ladenvehicle, the accident had taken place. Further, the criminalnegligence on the part of A2, A3 and A4 in not cautioning the publicto go away to a safe distance has also contributed to the accident.It is his submission that ignoring the statements given by thewitnesses in this case, the Trial Court has chosen to dismiss thepetition seeking discharge in its entirety. 7. Learned Government Advocate (Criminal Side) would vehementlysubmit that two witnesses examined by the prosecuting agency haveclearly spoken to the fact that the petitioner, who was specificallycautioned about the probable accident, took risk and directed thedriver to ply the vehicle. Therefore, the materials collected wouldshow that the petitioner, with the knowledge that the detonator andthe slurry, if transported combinedly, would in all probabilitycause explosion, transported those materials in one vehicle.Therefore, the petitioner/first accused shall not be relieved of thecharges under section 304(ii) of the Indian Penal Code and section3(b) of the Explosive Substances Act. 8. The statements of the witnesses including the experts in thefield of Explosive Substances recorded by the investigating agencywould disclose prima facie that there had been criminal negligenceon the part of the petitioner in transporting the explosivesubstance. Let us refer to the statements of Shanmugam, Rajendranand Murugadas recorded by the investigating agency. Shanmugam is ashot fire licence holder. He had obtained licence having undergonetraining before the Explosive Controller. The petitioner also isadmittedly a shot fire licence holder. The said Shanmugam hadwarned against combined transportation through the vehicle electricdetonator and slurry on the fateful day when the vehicle was loadedwith electric detonator and slurry. A2 to A4 who were engaged byA1 for the purpose of transporting of those explosives also informedthe petitioner/first accused in a very submissive manner that ifdetonator and slurry were taken together in a vehicle, it woulddefinitely cause explosion. In fact, they refused to take thevehicle with electric detonator and slurry. But, the petitionerherein informed them that he would shoulder the responsibility anddirected them to take the vehicle to the destination. 9. Rajendran also has given a statement that those unfortunateaccused viz., A2 to A4, before loading the electric detonator andslurry in the same vehicle, cautioned the petitioner that it woulddefinitely explode and they would also die in the explosion. Thepetitioner seems to have informed them that nothing would happen andif anything took place adversely, he was prepared to take theresponsibility. Murugadas also has given statement that those ill-fated accused viz., A2 to A4 warned the petitioner and brought tohis knowledge the serious consequences. The abovesaid statements of https://hcservices.ecourts.gov.in/hcservices/ witnesses on record would go to show prima facie that the petitionerherein who was thoroughly informed of the grave consequences, choseto take the risk. The aforesaid materials would indicate that hehad knowledge that the transportation of electric detonator withslurry in the same vehicle was likely to cause death and that hehad maliciously caused the explosion with explosive substances viz.,electric detonator and slurry resulting in loss of many lives andproperties. 10. It is not a mere accident on account of rash and negligenceact of the accused inviting penal provision under section 304 A ofthe Indian Penal Code. The statements of the witnesses referred toabove would clearly indicate that though the petitioner had nointention to cause the death, he had the knowledge (being shot firelicensee), having been posted with serious consequences even on theday of the accident that his act was likely to cause death. 11. The learned Senior Counsel appearing for the petitionercited the decision reported in NARESH GIRI v. STATE OF M.P. ((2008)1 SCC (Cri.) 324). That was a case where the bus driven by theaccused was hit by a train at railway crossing resulting in deathand injuries to passengers. Charges were framed under section 302of the Indian Penal Code and alternatively under sections 304, 325and 323 of the Indian Penal Code . The Supreme Court has held inthat case that no knowledge can be attributed to the accused that hewas aware that his act would probably result in death. Such anaccident caused by the driver of the bus by parking the vehicle atthe railway crossing will attract only offence under section 304 Aof the Indian Penal Code and not the penal provision under section304(II) of the Indian Penal Code. 12. The learned Senior Counsel appearing for the petitionercited yet another decision in PRABHAKARAN v. STATE OF KERALA ((2009)1 SCC (Cri.) 873). That was a case where the driver of the busdrove the vehicle at enormous speed inspite of the caution given bythe passengers to stop the vehicle. But, unfortunately, the vehicledashed against a school child. The Supreme Court has held that justbecause the driver of the bus ignored the passengers' andpedestrians' cries cautioning him to stop the vehicle which wasdriven at a reckless speed, no knowledge that his act would probablyresult in death could be attributed. That was a case where thedriver, of course, drove the vehicle in a rash and negligent speedwith an idea to get past the school children who also raised theirhands to stop the vehicle, but, unfortunately, he dashed against oneof the school children and stopped the vehicle 15 to 20 feet aheadof the place of occurrence. That was a case of pure motor accidenton account of reckless driving inspite of caution. In the instantcase, the petitioner is a shot fire licence holder. He is aware ofthe serious consequences of transporting the electric detonator https://hcservices.ecourts.gov.in/hcservices/ alongwith slurry. It is like loading a cotton with a burningfirewood. If a commoner or layman had transported those twoexplosive materials combinedly, of course, no knowledge can beattributed. Further, warning has been given to the petitioner as tothe grave repercussion. A2 to A4, before they die in the explosion,refused to take the vehicle informing the petitioner herein that itwould definitely explode. In such circumstances, the court findsthat the above ratio will not apply to the facts and circumstances. 13. The learned Senior Counsel appearing for the petitionercited the decision in KESHUB MAHINDRA v. STATE OF M.P. (1996 SC(Cri.) 1124) wherein it has been held as follows:-"... Consequently the material relied upon by theprosecution for framing a charge under Section304 Part II must at least prima facie indicatethat the accused had done an act which had causeddeath with at least such a knowledge that he wasby such act likely to cause death. The entirematerial which the prosecution relied upon beforethe trial court for framing the charge and towhich we have made a detailed reference earlier,in our view, cannot support such a charge unlessit indicates prima facie that on that fatefulnight when the Plant was run at Bhopal it was runby the accused concerned with the knowledge thatsuch running of the Plant was likely to causedeaths of human beings. It cannot be disputedthat mere act of running a Plant as per thepermission granted by the authorities would notbe a criminal act. Even assuming that it was adefective Plant and it was dealing with a verytoxic and hazardous substance like MIC the mereact of storing such a material by the accused inTank No.610 could not even prima facie suggestthat the accused concerned thereby had knowledgethat they were likely to cause death of humanbeings. In fairness to the prosecution it wasnot suggested and could not be suggested that theaccused had an intention to kill any human beingwhile operating the Plant. Similarly on theaforesaid material placed on record it could notbe even prima facie suggested by the prosecutionthat any of the accused had a knowledge that byoperating the Plant on that fateful night whereatsuch dangerous and highly volatile substance likeMIC was stored they had the knowledge that bythis very act itself they were likely to causedeath of any human being. Consequently in our https://hcservices.ecourts.gov.in/hcservices/ view taking the entire material as aforesaid onits face value and assuming it to represent thecorrect factual position in connection with theoperation of the Plant at Bhopal on that fatefulnight it could not be said that the said materialeven prima facie called for framing of a chargeagainst the accused concerned under Section 304Part II of the Indian Penal Code on the speciousplea that the said act of the accused amounted toculpable homicide only because the operation ofthe Plant on that night ultimately resulted indeaths of a number of human beings and cattle."14. That was a case where the defective plant was run withouttaking any precautionary steps to avoid the unfortunate accident.The accused had no knowledge that by operating the said plant on thefateful night, the accident would take place and it would consumemany lives. But, unfortunately, the accident took place and thetragedy was phenominal. The Supreme Court has held that noknowledge could be attributed to the accused that running of adefective plant on the fateful day would probably result in death.But, here in this case as already pointed out by this court, thepetitioner was specifically posted of the fact that transportationof electric detonator alongwith slurry would definitely causeexplosion which would result in death. The records would show thathe being a shot fire licensee is also aware of the dangerousconsequences of such combined transportation of explosives. At anyrate the observations made in this order shall not influence orimpact the Trial of the case.15. In view of the above facts and circumstances, the courtfinds that the limited plea of the learned Senior Counsel appearingfor the petitioner that the petitioner may be relieved of thecharges under section 304 (ii) and section 3(b) of the ExplosiveSubstances Act is found not sustainable. The Trial Court hasrightly dismissed the plea for discharge prayed for by thepetitioner. The trial Judge uninfluenced by the observations shalltry the case. Therefore, the criminal revision fails and it standsdismissed. The connected Miscellaneous Petition also standsdismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ssk. To1. The Additional District and Sessions Judge, Fast Track Court No.2, Tindivanam. 2. S.H.O., Mylam Police Station, Villupuram District. 3.The Public Prosecutor,High Court,Madras.+1cc to Mr.M.Devaraj, Advocate Sr 39694KA(CO)km/25.8. Crl.R.C.No.1661/2008