The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2257 of 2023 Dayanidhi Dehury …. Petitioner Mr. D.P. Dhal, Senior Advocate & Mr. Anshuman Ray, Advocate -Versus- State of Odisha Opposite Party Mr. J.P. Patra, Additional Standing Counsel …. CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:21.05.2024 1. Instant petition under Section 482 Cr.P.C. is filed by the petitioner challenging the order of framing of charge dated 19th April, 2011 (Annexure-6) and the proceeding in connection with G.R. Case No.145 of 1998 qua him pending in the file of learned S.D.J.M., Sambalpur on the grounds inter alia that such initiation of criminal prosecution against him is ex-facie illegal, hence, in the interest of justice, deserves intervention of this Court in exercise of its inherent power. 2. The facts in brief are as follows. A plain paper FIR was lodged with respect to an incident dated 30th January, 1998, during which, on account of release of water in the Hirakud Dam with opening of two sluice gates, seven students of the UCE, Burla, while taking bath in the river bed at a ghat slipped away and died with the allegation that there has been gross CRLMC No.2257 of 2023 Page 1 of 10 negligence on the part of the petitioner and others on duty. In fact, the report was drawn at the behest of the IIC, Burla P.S., subsequent to which, investigation was held leading to the filing of chargesheet against the accused persons for offences punishable under Section(s) 336 and 304-A IPC. Later to the submission of the chargesheet, the learned court below took cognizance of the offences and thereafter, framed the charge by order dated 19th April, 2011. In other words, the learned S.D.J.M., Sambalpur considering the chargesheet and connected materials was of the view that a prima facie case under the alleged offences to have been made out against the petitioner.
Legal Reasoning
The contention of the petitioner is that there is no negligence, inasmuch as, release of the water from the dam was preceded by blowing siren which was ignored by the deceased students. Considering the claim of the petitioner and the criminal proceeding in respect of a co-accused, namely, Ramakanta Mallik having been quashed by order dated 5th April, 2023 in CRLMC No.3534 of 2011, the Court is to examine, whether, the charge vis-a-vis the petitioner and for that matter, the criminal proceeding against him needs any interference of similar kind. 3. Heard Mr. Dhal, learned Senior Advocate appearing for the petitioner assisted by Mr. Anshuman Ray, Advocate and Mr. Patra, learned Additional Standing Counsel for the State. 4. Mr. Dhal, learned Senior Advocate for the petitioner would submit that the petitioner is equally not negligent and the unfortunate incident took place despite precaution being taken with the blow of siren not once but thrice but the students, who were found to be under the influence of alcohol could not CRLMC No.2257 of 2023 Page 2 of 10 return back to the shore of the ghat. It is further submitted that as per statement of the Gauge Reader of Left Still Way Control Room, who was along with another official while attending duty experienced increase in water level and accordingly, informed the Work Sarkar, who noted it down in the register and as the water level of 630 ft. being the maximum capacity the reservoir can store during non-monsoon period, the work Sarkar informed higher authority also, during which, the petitioner, who was posted as Assistant Executive Engineer reached at the spot at around 7.30 AM and personally inspected the water level and similarly, took note of the level of water in the dam and after discussion among the officials, instruction was issued to all the operational staff to get ready to open the sluice gates. The contention of Mr. Dhal, learned Senior Advocate is that due process was followed all along and on the intimation of the Work Sarkar, the Crane Operator opened the Gate No.37 and thereafter, the second gate was opened at about 2.00 PM. Referring to the statement of the Gauge Reader and other materials on record, Mr. Dhal would submit that proper course of action was taken and therefore, there was no rash or negligence act, which is attributed to the petitioner, who in course of duty, discharged the responsibility as per the protocol. Advancing an argument that there has been no serious breach of duty but opening of the gates was after duty deliberation and it was on the orders of the senior officials and as care and caution was taken before the water was released into the dam by blowing siren, ignored by the students, no case much less justifying a criminal action is made out against him and hence, like the co-accused, the entire proceeding is required to be quashed. CRLMC No.2257 of 2023 Page 3 of 10 5. On the contrary, Mr. Patra, learned ASC for the State submits that adequate measures were not taken by the petitioner, who like others was casual without being aware of the serious consequences to follow, allowed the gates of the dam to open, which ultimately caused death of seven students of the UCE, Burla. It is further submitted by Mr. Patra, learned ASC that considering the materials on record in its entirety and the circumstances under which the mishap happened, the petitioner, as a Govt. official on duty, was expected to discharge the responsibility in such manner to avoid any causality. It is also contended that the petitioner cannot be exempted from criminal liability for the rashness and negligence in view of the fact that the gates were suddenly opened, as a result of which, innocent lives were lost, hence, the order of framing of charge vide Annexure-6 against him is in accordance with law and therefore, the criminal action should not be interfered with leaving all the aspects agitated at present to be examined and taken cognizance of during trial. 6.The criminal prosecution vis-a-vis the co-accused, namely, Ramakanta Mallik stands quashed by the Court’s order dated 5th April, 2023 (Annexure-7) in CRLMC No.3534 of 2011 with the conclusion that absence of additional precaution beyond protocol cannot be a ground to fasten the criminal liability, hence, no case of gross negligence is made out. The Court in absence of any serious breach in protocol required to be followed since not revealed in the chargesheet and for not taking additional measures, like public announcement, prior intimation to the local police etc. when the said accused discharged duty in a routine manner along with the operational CRLMC No.2257 of 2023 Page 4 of 10 staff was inclined to quash the order of cognizance against him. In the case at hand, the question is, the petitioner having played a part, whether to be held responsible for any such gross negligence so as to allow the criminal prosecution against him to continue with the charge framed in the meantime? 7. In order to make out a case under Sections 336 IPC, the essential ingredients for the said offence are, namely: (i) the accused did some act;(ii) did such act rashly or negligently; and (iii) the act endangered human life or personal safety of others. An act to be such an offence, if there is rashness or negligence on the part of the accused. The consequence of the act which is to endanger human life or affect personal safety of others for the conduct being rash or negligent is sine qua non. With respect to Section 304A IPC, any rash or negligence act, which does not amount to culpable homicide becomes an offence for causing death by such an act. In other words, Section 304A IPC carves out a specific offence where death is caused by doing rash or negligent act which is not an offence of culpable homicide defined under Section 299 IPC or murder under Section 300 IPC. The offence under Section 304A IPC is attracted, where there is no intention to cause death and no knowledge that the act done would in all probability cause death. So to say, the said offence is outside the purview of Section(s) 299 and 300 IPC and contemplates cases where there is absence of intention or knowledge. It is well settled law that in criminal cases, because of the rules of burden of proof, presumption of innocence and proof beyond reasonable doubt, the doctrine of res ipsa loquitur can only be applied as an aid in the evaluation of evidence, an application of the CRLMC No.2257 of 2023 Page 5 of 10 general method of inferring one or more facts in issue from the circumstances proved by evidence as held in Syed Akbar Vrs. State of Karnataka AIR 1979 SC 1848. It would be profitable to quote the relevant excerpt of the ancient decision in the case of Empress Vrs. Idu Beg ILR 3 All 776 which is to the effect that criminal rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury but without intention to cause injury, or knowledge that it will probably cause. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences; criminal negligence is the gross 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 imperative duty of the accused person to have adopted. (Ref: S.N. Hussain Vrs. State AIR 1972 SC 685). 8. In Rattan Singh Vrs. State AIR 1980 SC 845, the Apex Court held that rashness and negligence are relative concepts, not abstractions and in applying the law under Section 304A IPC, it is fair to invoke the rule of res ipsa loquitur with due care and having regard to the frequency in the accident cases involving vehicles. In Mohammed Aynuddin Vrs. State (2000) 7 SCC 72, it is held by the Supreme Court that a rash act is primarily an overhasty act, which is opposed to a deliberate action; still a rash act can be a deliberate act in the sense that it was done without care and caution; hence, culpable rashness lies in doing an act recklessly being indifferent to the consequences. Likewise, in Kurban Rangawalla Vrs. State AIR 1965 SC 1616 CRLMC No.2257 of 2023 Page 6 of 10 and in catena of other decisions including Suleman Vrs. State