ORDER
S. Awasthy, J.
1. This revision has been filed under Section 482 of the Code of Criminal Procedure, against taking cognizance of the offence punishable under Section 304-A of the IPC, by the Judicial Magistrate First Class, Durg.
2. The facts of the case are that the applicant No. 1 is a Superintendent working in the Bhilai Steel Plant, while the applicant No. 2 is a Chowkidar in The Bhilai Club, which is managad by the Officers of the Bhilai Steel Plant. Membership is open to the Officers of the Bhilai Steel Plant, HSCL, MECON and other Officers of SAIL posted at Bhilai, on payment of prescribed admission and monthly fees according to the bye-laws. The Governing Body of the said Club is an Elected Body. The applicant No. 1 was an Honorary Secretary of the said Club. The Club has a swimming pool. Entry into the pool is restricted to the members and their dependents. No guest is allowed. A Chowkidar is posted on the gate of the swimming pool, who permits the entry on presentation of the admission card.
3. On 10-5-1988, one Rameshchandra, aged about 13 years, at 6-00 p.m., entered into the swimming pool on the basis of the admission card of his father. Another boy, by name Rishi Aggarwal, aged about 17 years, surreptitiously entered into the premises. The Chowkidar could not have the knowledge of his entry into the swimming pool. Both the boys remained in the swimming pool for about an hour. About 18 to 20 persons were also present in the swimming pool. After a while, Rishi Agarwal was not seen and Rameshchandra became worried about him. The Luna Moped of Rishi and his clothes were in the premises, but Rishi could not be noticed. He, therefore, informed his parents and, subsequently, the parents of Rishi were informed. After a vigorous search, the dead body of Rishi was recovered from the swimming pool. The police-station Bhilai Nagar registered the crime No. 22/88 under Section 304-A of the I.P.C. Statements of number of persons were recorded and challan was presented in the Court of Judicial Magistrate First Class, Durg. From the charge-sheet, it appears that the police is of the view that there was no lifesaving guard, nor was there any notice of caution on the swimming pool. Hence, the applicants are alleged to be liable for their inaction hence their rash and negligent act.
4. The argument of the learned counsel for the applicants is that the applicants did not commit any act which could be said to be rash or negligent which has to be proximate and immediate cause of death. The learned counsel relied on the cases reported in A.D. Bhatta v. State of Gujarat, AIR 1972 SC 1150 : 1972 Cri LJ 727, Kurban Hussain Mohd. Rangawalla v. Maharashtra State, AIR 1965 SC 1616 : 1965 (2) Cri LJ 550) and Suleman Rehiman v. State of Maharashtra, AIR 1968 SC 829 : (1968 Cri LJ 1013). The deceased Rishi Agarwal entered into the swimming pool surreptitiously and without notice of the Chowkidar. Had the Chowkidar seen him entering into the premises, he would not have permitted his entry. The death of Rishi Agarwal was merely accidental and not because of any act of the applicants. There is a difference between a tort and crime. The alleged negligence may give a cause of action under a tort, but not an action under criminal law. It is finally submitted that, by proceeding against the applicants, there would be an abuse of the process of the Court. Hence, the entire proceedings are liable to be quashed.
5. Criminal rashness is 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 be caused. 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 the imperative duty of the accused person to have adopted. Culpable rashness is acting with the consciousness that the misachievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precaution to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that, if he had, he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection. A rash act is primarily an overhasty act and is opposed to a deliberate act; even if it is partly deliberate, it is done without due thought and caution. Illegal omission is 'act' under this section and may constitute an offence if it is negligent. 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.
6. The 'rash or negligent act' referred to in the section means the act which is the immediate cause of death and not any act or omission, which can at most be said to be a remote cause of death. To render a person liable for neglect of duty there must be such a degree of culpability as to amount to gross negligence on his part. It is not every little trip of mistake that will make a man so liable. Where the accused, driving a motor-car at night, entered a road which being under repairs was closed to traffic and ran over and killed two coolies who were sleeping on the road with their bodies completely covered up except for their faces, it was held that, under the circumstances, the accused was not guilty of causing death by a rash and negligent act as it could not be said that he should have looked out for persons making such an abnormal use of the road.
7. In the case of A.D. Bhatt v. State of Gujarat, AIR 1972 SC 1150 : 1972 Cri LJ 727, it has been held as under :--
'8...... for an offence Under Section 304-A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. If that were so, the acquittal of the appellant for contravention of the provisions of the Act and the Rules would itself have been an answer and we would have then examined to what extent additional evidence of his acquittal would have to be allowed but since that is not the criteria, we have to determine whether the appellant's act in giving only one batch number to all the four lots manufactured on 12-11-1962 in preparing batch No. 211105 was the cause of deaths and whether those deaths were a direct consequences of the appellants' act, that is, whether the appellants' act is the direct result of a rash and negligent act and that act was the proximate and efficient cause without the intervention of another's negligence.'
8. Applying the said principle, it has to be held that there is no possibility of the applicants being convicted for the alleged offence. It cannot be said that because there was no caution board or life-saving guard, the boy Rishi Agarwal surreptitiously entered into the swimming pool and drowned. The alleged negligence of the Club may make the Members of the Club liable under a tort, but, for the aforesaid omission, the applicants cannot be held liable under Section 304-A of the IPC. It would be unnecessary harassment and a futile attempt if the prosecution is allowed to continue. I, therefore, exercise the powers under Section 482 of the Code of Criminal Procedure, and quash the proceedings against the applicants in the Criminal case (State of M. P. v. B.P. Ram and Anr.), pending in the Court of Judicial Magistrate First Class, Durg.
9. The revision petition is, thus, allowed.