Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE K.HARIPAL TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943 CRL.MC NO. 5722 OF 2016 CC 750/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - II, ATTINGAL PETITIONERS/A1 & A3:
1 REKHA AGED 45 YEARS D/O. RADHAKUTTY, ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, KANIYAPURAM, RESIDING AT AISHWARYA, VALLATHODU, ATTRIPRA DESOM, ATTIPRA VILLAGE, THIRUVANANTHAPURAM 2 MOHAMMED SHAFI AGED 53 YEARS, S/O. MOHAMMED MUSTAFA, SUB ENGINEER, KANIYAPURAM ELECTRIC SECTION, RESIDING AT VADEKKETHIL, MANGALAPURAM, EDAVILAKOM MURI, VEILOOR VILLAGE, THIRUVANANTHAPURAM BY ADV. SRI.SHAJIN S.HAMEED
RESPONDENTS/STATE & CW1: 1 STATE OF KERALA REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE, ATTINGAL, REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2 RAJENDRAN S/O GOPI, KARAYADIYIL VEEDU, MUZHITHIRAYAVATTOM, VALIYA VEETTU MURIYIL, PALLIPPURAM, THIRUVANANTHAPURAM. PIN CODE:695316 Crl.M.C.No.5722 OF 2016 2 R1 BY SRI. C. SEENA, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26.10.2021, THE COURT ON 30.11.2021 PASSED THE FOLLOWING: Crl.M.C.No.5722 OF 2016 3
ORDER
This is a petition filed under Section 482 of the Code of Criminal Procedure praying to quash Annexure A final report and Annexure E additional Final Report as against the petitioners pending as C.C. No. 750/2008 on the file of the Judicial First Class Magistrate Court - II, Attingal. Petitioners are accused Nos. 1 and 3 in the said case which arose from the final report in Crime No.
district. That crime was registered on 18.02.20217 on the strength of the First Information Statement given by one Rajendran, who is the cousin of the deceased Ajayakumar. Ajayakumar is the son of his uncle. It is alleged that on 18.02.2007, at about 10.40 A.M. while the said Ajayakumar and others were engaged in concreting the floor of a flour mill inside the CRPF camp at Pallipuram, he was electrocuted and was rushed to the AJ Hospital, Kazhakootam. From that hospital he was taken to Medical College Hospital, but at Medical College Hospital, he was declared dead. It is stated that works were done inside the flour mill without switching off the electric supply and that electrocution had occurred since the said
Crl.M.C.No.5722 OF 2016 4
Ajayan had stood up touching his head on the wire on the switch board and that was how the incident had happened. The crime was first registered under Section 174 of the Cr.P.C. After investigation, police laid Annexure B charge sheet against the first petitioner and another alleging offence under Section 304 A of the Indian Penal Code. Later, they had filed a representation before the Director General of Prosecution seeking further investigation and thus a further investigation was conducted and Annexure C report was given by the Deputy Superintendent of Police, Special Team, Police Head Quarters pointing out the lacunae or laches in investigation. It appears that the Annexure E additional final report was laid thereafter, adding two more persons as accused. Thus petitioners are presently accused numbers 1 and 3 in the crime and face allegations 304A IPC. It is alleged that death of Ajayakumar had happened due to the negligence on the part of accused Nos. 1 to 4.
2. I heard the learned counsel for the petitioners and also the learned Public Prosecutor.
3. According to the learned counsel for the petitioners, the incident had happened inside the flour mill run in the CRPF camp. Such a flour mill is being operated by the employees of the camp. Crl.M.C.No.5722 OF 2016 5
Responsibility of the officers of the Kerala State Electricity Board is only upto the meter installed by the Board. Final report indicates that there was unauthorised extension of line from the meter and the main switch. There is no allegation for the prosecution that they had not done periodical personal inspections. Referring to the laches pointed out by the Deputy Superintendent of Police in the Annexure C report, disciplinary action must have been taken against the Investigating Officer, who had done investigation in a perfunctory manner. So according to the learned counsel, the additional report has been filed indicting the petitioners, officials of the Electricity Board only to save the face of the officer who investigated the case initially.
4. On the other hand, the learned Public Prosecutor
submitted that there is vi-curious liability on the part of the officials. The meter was tampered and the wire remained exposed and the ear of the deceased had touched at the un-insulated wire and that was how he had died.
5. Petitioners were Assistant Executive Engineer and Sub Engineer respectively of the Electrical Section. The first petitioner/first accused was the Assistant Executive Engineer, Crl.M.C.No.5722 OF 2016 6
Electrical Sub Division, Kaniyapuram within which the said CRPF camp fell, whereas the second petitioner was the Sub Engineer of Kaniyapuram Electrical Section. According to the prosecution, their negligence can be attributed for the accidental death of the said Ajayakumar by electrocution.
6. The fact that Ajayakumar had died on 18.02.2007 by
electrocution is beyond dispute. Now the point for consideration is whether rashness or negligence can be attributed on the part of the petitioners, who were Engineers of the Electricity Board for the death. In other words, whether there was any direct nexus between the death and the alleged rashness or negligence on the part of the petitioners.
7. As early in 1902, the Bombay High Court in the oft
quoted decision in Emperor v. Omkar Rampratap and another laid down the law thus:- “To impose criminal liability under Section 304A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non.”
8. These observations have received acceptability of the Crl.M.C.No.5722 OF 2016 7
Apex Court and the Hon'ble Supreme Court in umpteen number of authorities have quoted the same with approval. (See the decisions in Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra [AIR 1965 SC 1616] and Suleman Rahiman Mulani and Another v. State of Maharashtra [AIR 1968 SC 829] etc.) That means, there must be direct nexus between the death and the alleged rashness or negligence attributed against the accused persons. Here the question is whether such a rashness or negligence can be attributed against the petitioners.
9. After considering the materials on record produced
before court, I am not convinced that the petitioners can be prosecuted for the alleged negligence on their part. From Annexure F communication sent by the Secretary, Kerala State Electricity Board to the Secretary to Government, Power (B) Department, it is stated how the incident had happened. Relevant portion reads thus:- “………........................………………………………..……….. As per the report of Electrical Inspector, Thiruvananthapuram the electrocution was occurred due to physical contact by the victim with a wire from the outgoing terminal of the energy meter to the switch board which was joined in a non-standard manner leaving the joint without proper insulation. It is evident from the above
Crl.M.C.No.5722 OF 2016 8
report that the supply had been extended from the KSE Board meter bye-passing the cut out fuse through joints covered with insulation tape. The report also evinces that the electrical installations were carelessly kept in the premises which led to electrocution. The Electrical Inspector finds that impromptu contact of the deceased with un-insulated part where the supply was extended to the switch board bye-passing cut out fuse caused the accident. As per Regulation 4 of the Kerala Electricity Supply Code 2005 “Unless otherwise agreed to between the consumer and the Licensee, the point of commencement of supply shall be at the incoming terminal of the cutouts installed by the consumer”. The above provision unequivocally states that if there arises any mishap/electrocution from the incoming terminal in the premises the whole responsibility is vested with the owner/consumer. It may be noted that the accident took place at the time of extension of energy for masonry work from the incoming terminal without taking precautionary measures. Hence, the Board is not responsible in any way for the accident occurred.”
10. It appears that the above communication was sent by
the Secretary of the Kerala State Electricity Board to the Power (B) Department as a remark as to whether the said case can be withdrawn. Such a communication was sent recommending withdrawal. Whatever it may be, it is clear that the unfortunate incident had happened when the said Ajayakumar was engaged as a mason in concreting the floor of the flour mill in the CRPF camp. It has come out that when he stood up, his ear touched an unCrl.M.C.No.5722 OF 2016 9
insulated wire which extended from the main switch. In other words, it remained exposed to hazards and the work was done without switching off the power supply. In other words, it is very obvious that a concreting work was undertaken inside the premises without switching off the power supply. An un-insulated wire was also remaining exposed from the main switch. The short question is whether the responsibility for keeping such a wire uninsulated and also for undertaking the work with the power supply on, could be fixed on the petitioners, two officials of the Electricity Board. After going through the materials and also the authorities on the subject, the answer is in the negative. That means, such a criminal prosecution cannot sustain against the petitioners.
11. Even though the report of the Electrical Inspector is not
available before Court, it is evident from Annexure F report that the Electrical Inspector had given a report as to how the incident had happened. As rightly pointed out by the learned counsel for the petitioners, the responsibility of the Electricity Board is to supply power upto the power meter. If the consumer had done some misadventures and extended the wire, that too in a very hazardous manner, it is not known as to how the officials of the Electricity
Crl.M.C.No.5722 OF 2016 10 Board can be held liable.
12. Annexure C communication of the Deputy
Superintendent of police, Special Team addressed to the Director General of Police, highlights numerous laches on the part of the Investigating Officer, who conducted initial investigation. It is stated that he had filed a final report without considering various important aspects. That was how a further investigation had taken place. Whatever it may be, the Investigating Officers did not consider vital aspects before implicating petitioners who were no where in the picture at the alleged time of happening. There is no allegation that they had failed in conducting periodical inspections at the premises. Moreover, the immediate cause of the incident was the conduct of masonry work without switching off the power supply and a wire remained un-insulated and exposed to hazards from the switch board. At that point, when such an un-insulated wire remained exposed, the contractor or other persons in charge of the flour mill should not have allowed workers to undertake work inside the flour mill without switching off the power supply.
13. I do not find valid reasons for continuing prosecution against the petitioners. If that is allowed to be done, that would Crl.M.C.No.5722 OF 2016 11
amount to mis-carriage of justice and therefore, proceedings against the petitioners in C.C. No. 750/2008 on the file of the Judicial First Class Magistrate Court - II, Attingal shall stand quashed and the petitioners shall be exonerated. Crl.M.C. is allowed as above. Sd/- K.HARIPAL JUDGE
DCS/28.11.2021 Crl.M.C.No.5722 OF 2016 12 APPENDIX PETITIONER'S ANNEXURE ANNEXURE-A CERTIFIED COPY OF FIR IN CRIME NO. 80/2007 OF MANGALAPURAM POLICE STATION ANNEXURE-B CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 80/2007 OF MANGALAPURAM POLICE STATION ANNEXURE-C PHOTOCOPY OF THE REPORT NO. 59/ST/PHQ/10 DATED 31/12/2010 OF THE DEPUTY SUPERINTENDENT OF POLICE TO THE DIRECTOR GENERAL OF POLICE ANNEXURE-D PHOTOCOPY OF THE LETTER NO:T2/10104034/2011
DATED 13/01/2011 ISSUED BY THE DIRECTOR GENERAL OF POLICE, KERALA TO THE INSPECTOR GENERAL OF POLICE, (N/C), THIRUVNANTHAPURAM RANGE ANNEXURE-E CERTIFIED COPY OF THE ADDITIONAL/ SUPPLEMENTARY CHARGE SUBMITTED BY THE DEPUTY SUPERINTENDENT OF POLICE, ATTINGAL IN CRIME NO. 80/2007 OF THE MANGALAPURAM POLICE STATION ANNEXURE-F PHOTOCOPY OF THE COMMUNICATION NO. LCIII/14823/2008 ISSUED BY THE SECRETARY, KERALA STATE ELECTRICITY BOARD TO THE SECRETARY TO GOVERNMENT, POWER DEPARTMENT