Bhalchandra Alias Bapu & ANR Vs.
State of Maharashtra [1968] INSC 98 (11 April 1968)
11/04/1968 GROVER, A.N.
GROVER, A.N.
HIDAYATULLAH, M.
VAIDYIALINGAM, C.A.
CITATION: 1968 AIR 1319 1968 SCR (3) 766
CITATOR INFO:
R 1972 SC1150 (8) D 1972 SC1485 (5)
ACT:
Indian Penal Code (45 of 1860) ss. 304A and
337--Storage of explosives of higher degree--Explosion--Whether licensees
liable criminally.
HEADNOTE:
In an explosion which took place, the persons
who were working in the factory of the appellants where crackers were being
manufactured died or were injured. The appellants were convicted under ss. 304A
and 337 I.P.C. In appeal to this Court, the appellants contended that criminal
liability could not be imposed upon them under ss. 304A and 337 as it had not
been established that the deaths or injuries caused were the direct result of
any rash or negligent act on the part of the appellants or that any such act
had been proved which was the proximate and efficient cause of the explosion
without the intervention of another's negligence.
HELD: The appellants were rightly convicted.
[773 C] Although there was no direct evidence of the immediate cause of the
explosion but the explosives the possession of which was prohibited under the
notifications issued under the Indian Explosives Act were found in the shops or
the premises where the appellants carried on their business and the substances
which were of highly hazardous and dangerous nature were apparently being used
in the manufacture of the fireworks. since they were found at the scene of the
explosion. These explosives had sensitive composition and even friction or
percussion could cause explosion. In the factory itself where the explosion
took place the persons who were employed were mostly women who brought their
small children with them and young children below the age of 18 had been
employed in the manufacture of fireworks. It became therefore, all the more
incumbent on all appellants to have completely avoided the use of highly
sensitive compositions. The appellants had, undoubtedly displayed a high degree
of negligence by allowing or causing to be used dangerous and prohibited
compositions and substances which must be held to have been the efficient cause
of the explosion. [771 A-C; 773 C] Rustom Sharior Irani v. State of
Maharashtra. Cr. A. No. 72/65; Balachandra Waman Pathe v. The State of
Maharashtra, Cr. A. 62 of 1965 decided on 20-11-1967. followed.
Regina v. David Dant., 169 English Reports
(C.C.) 1517; Rex v. Pittwood. (1902) 19 T.L.R. 37, applied.
Kurban Hussein Mohammedali Rangwalla v. State
of Maharashtra, [1965] 2 S.C.R. 622; Suleman Rahiman Mulani & Another v.
The State of Maharashtra Cr. A. 50 of 1965 decided on 1-12-1967, distinguished.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 193 of 1965.
Appeal by special leave from the judgment and
order dated October 19, 1965 of the Bombay High Court in Criminal Revision
Applications Nos. 193 and 194 of 1965.
767 K. Hingorani and N. H. Hingorani, for the
appellants.
P. K. Chatterjee and S. P. Nayyar, for the
respondent.
The Judgment of the Court was delivered by
Grover, J. This is an appeal by special leave in which the main question for
decision is whether the appellants were rightly convicted for offences under
ss. 304A and 337 of the Indian Penal Code.
The facts lie within a narrow compass. The
appellants held licences under the Indian Explosives Act 1884, hereinafter
called the Act, and the Rules framed there under to manufacture, possess and
sell fireworks and gun-powder not exceeding 200 pounds and to possess and sell
safety fuses.
It appears that the appellants had a factory
for manufacturing explosives in a house on Shad Road in Latur town. It is said
that an explosion occurred in that place on May 5, 1962 at about 12 O'clock as
a result of which 11 persons died and 7 persons were injured. The appellants
along with one B. G. Kamble were tried for offences under the various
provisions of the Act and the Rules as also for offences under ss. 304A and 337
of the Code. The trial judge acquitted B. G. Kamble but convicted the
appellants of the various charges framed against them and imposed fine for
offences under the provisions of the Act and awarded a sentence of one year
under S. 304A and three months under S. 337 of the Indian Penal Code with a
direction that they were to run concurrently. The learned Additional Sessions
Judge dismissed the appeal preferred by the appellants against their conviction
and sentence. The appellants then moved the High Court on the revisional side.
The order of conviction was confirmed by the High Court as also the sentence on
all the counts except that under s. 304A the substantive sentence was reduced
to one of rigorous imprisonment for six months but for the reasons mentioned in
the judgment of the High Court the appellants were directed, in addition, to
pay a line of Rs. 1,500 each.
Now there can be no manner of doubt and it
has been so found that in the explosion which took place the persons who were
working in the so called factory of the appellants where crackers etc. were
being manufactured died or were injured.
According to the courts below the appellants
had, in their possession, unauthorised explosives in contravention of the Act
and the rules and had committed a number of breaches of those rules and the
conditions of the licences issued to them. The principal contention on behalf
of the appellants is that even on the facts found it is not possible to hold
that they were responsible for the explosion or had done anything which could
be regarded as a direct and immediate cause of the explosion. Thus criminal 768
liability could not be imposed on them under ss. 304A and 337 of the Code as it
has not been established that the deaths or injuries caused were the direct
result of any rash or negligent act on the part of the appellants or that any
such act had been proved which was the proximate and efficient cause of the
explosion without the intervention of another's negligence. In the High Court
emphasis was laid on the absence of any positive evidence pointing to the
presence of the appellants at the material time. The High Court while holding
that there was no direct evidence in respect of the immediate cause of the
explosion referred to the conclusion of the courts below that the appellants
had committed a number of hazardous breaches of the rules framed under the Act
and the conditions of the licences issued to them, particularly the storage of
prohibited explosives and employment of children below the, age of 18. This, it
was pointed out, showed a callous disregard for the safety of the employees. It
was noticed that the Assistant Inspector of. Explosives had also attributed the
explosion to the storage of prohibited explosives of a high degree.
Therefore the appellants were found to have
been rightly convicted under ss. 304A and 337 of the Indian Penal Code.
Our attention has been invited by the learned
Counsel for the appellants to certain decisions of this Court. In Kurban Hussein
Mohammedali Rangwalla v. State of Maharashtra(1) a factory was licensed on
certain conditions to manufacture paints. The manager and the working partner
did not have a license for manufacturing wet paints but nevertheless the
factory manufactured them. Certain burners were used for the purpose of melting
rosin or bitumen by heating them in barrels and adding turpentine thereto after
the temperature cooled down to a certain degree. While this process was going
on froth overflowed out of the barrel and because of heat, varnish and
turpentine which were stored at a short distance caught fire and resulted in
the death of seven persons working in the factory. The question was whether the
manager and the working partner of the firm which ran the factory was guilty
under ss. 304-A and 285 of the Indian Penal Code. It was held that the mere
fact that the burners were allowed to be used in the same room in which varnish
and turpentine were stored even though it might be a negligent act would not be
enough to make the appellant before this Court responsible for the fire which
broke out. The cause of the fire, it was observed, was not merely the presence
of burners in the room in which the varnish and turpentine were stored though
this circumstance was indirectly responsible for the fire which broke out.
The requirement of s. 304A was the causing of
death by doing any rash or negligent act and this meant that the death must be
the direct or proximate result of the rash or negligent (1) [1965] 2 S. C. R.
622.
769 act. It was found that the direct or
proximate cause of the fire which resulted in seven deaths was the act of a
labourer who acted in a hurry and who did not wait until the bitumen or rosin
cooled down and thus it was his negligence which was the direct and proximate
cause of the fire breaking out. The appellant, namely, the manager and the
working partner of the firm could not be held to have committed the offence
under S. 304A of the' Code.
The ratio of the above decision was applied
in Suleman Rahiman Mulani & Another V. The State of Maharashtra(1). In that
case the question was whether the first appellant who had only a learner's
licence and was driving a jeep which knocked down the deceased had been rightly
convicted of an offence under S. 304A of the Code read with certain provisions
of the Motor Vehicles Act. On the material on the record the court found it
impossible to discover under what circumstances the accident had taken place.
This Court held that it was not known what was the proximate cause of the
accident and the possibility that it had been caused due to the fault of the
deceased could not be ruled out. The mere fact that the appellant in question
held a learner's licence did not establish that he did not know driving. His
proficiency might furnish a defence which the learner could not have but the
absence of proficiency did not make him guilty. His conviction under s. 304A
was therefore set aside.
The facts of the present case are somewhat
different and distinguishable from those of the above two cases as will be
clear from a close examination of the material evidence relating to the
substances which were being used in the manufacture of the fireworks etc. in
the factory of the appellants.
It appears that soon after the explosion the
Inspector of Explosives, West Circle, Bombay, proceeded to Latur for
investigation. He took into possession certain substances from the scene of the
accident. By means of a letter, dated May 11, 1962 sent from the office of the
Inspector of Explosives these substances were forwarded to the Chemical
Examiner, Government of Maharashtra for examination, the samples were as
follows:
1. A white substance in a packet suspected to
be potassium chlorate.
2. An orange yellow substance suspected to be
arsenic sulphide.
3. A round stone piece containing smears with
orange yellow chemical adhering to it.
(This was to (1) Cr. A. 50 of 1965, decided
on 1-12-67.
770 be examined for the presence of arsenic
sulphide and potassium chlorate).
4. A contraption to test the explosibility of
a mixture of potassium chlorate and sulphur.
Dindeshchandra P. W. 10 Assistant Inspector
of Explosives also went to the scene of the explosion along with the Inspector
on May 9, 1962 and various samples were collected from the shops of the appellants
as well. All these were forwarded to the Chemical Examiner for examination. The
report of the Chemical Examiner (Ex. 87) which is to be found on the original
record gives the following analysis in respect of the above substances
"Exhibit (1) is potassium chlorate.
Exhibit (2) is arsenic sulphide.
Exhibit (3) has sediment containing arsenic
sulphide and sulphur adhering to it.
Exhibit (4) has Potassium Chlorate and
Sulphur in its cavity." "Apart from the original record these facts
stand established from the evidence of Dindeshchandra P. W. 10 and the report
(Ex. 38) --which he had submitted on November 2, 1962 which was duly proved by
him when he appeared as a witness. He has further stated that when he inspected
the premises of the factory on May 9, 1962 he noticed half burnt raw material
like sulphur white powder the ingredients of which he could not ascertain.
There were grinding stones as also empty
tubes for manufacturing exhibition fireworks. As regards the cause of the
explosion his opinion may be given in his own words -"Probable cause of
the explosion must have been the large quantities of the raw materials gun
powder and finished fireworks and the raw materials for the same were stored in
the premises. At the time of the explosion there were large quantities of the
fireworks, finished as well as in the process of preparation, loose
compositions and the gunpowder. There were being dried in the open court yard
of the premises. Some of the items contained very sensitive explosive compositions
which might have exploded due to the spark, percussion or friction or
fire." Although there was no direct evidence of the immediate cause of the
explosion but indisputably the explosives the possession of which was
prohibited under the notifications issued under the Act -were found in the
shops or the premises where the appellants carried on their business and on the
substances that have been :,mentioned which were of a highly hazardous and
dangerous 771, nature were apparently being used in the manufacture of the fireworks
since they were found at the scene of the explosion, (vide the evidence
mentioned before and the finding of the trial court and the Additional Sessions
Judge). As stated by Dindeshchandra P. W. 10 these explosives had sensitive compositions
and even friction or percussion could cause explosion. It is further proved
that in the factory itself where the explosion took place the persons who were
employed were mostly women who brought their small children with _them and
young __children below the age of 18 had been employed in the manufacture of
the fireworks etc. The factory was situate in close proximity to residential
quarters. It became therefore all the more incumbent on the appellants to,,
have completely avoided the use of highly sensitive compositions of the nature
mentioned above.
The decision which is apposite to the present
case is the one recently delivered by this Court on April 3, 1968 in Rustom
Sherior Irani v. State of Maharashtra(1). There the chimney of a bakery had
collapsed and 11 persons were killed and certain persons were injured. The
appellant had submitted no plan for the alteration of the chimney for the third
time and had asked just a mason to remove the iron pipe which had corroded and
to bring the height of the chimney to 65 feet. The mason had told Mm that while
the work was being executed it was unnecessary to completely keep the bakery
closed except during the period the repair work was being done. After the
chimney fell down a number of officers visited the spot and inspected the
bakery. The Chief Inspector of Boilers was of the opinion that the cause of the
collapse of the chimney was the explosion which occurred in it because of the
products of combustion and gases not being permitted to escape freely as a pipe
of 6 inches diameter had been put instead of 12 inches diameter.
It is unnecessary to refer to, the detailed
discussion of the evidence. It was established that the construction of the new
chimney had been done without ther advice of a properly qualified person. The
argument raised was on the lines similar to the one which had been advanced in
Kurban Hussein Mohammedall Rangwalla v. State of Maharashtra(2).
It was maintained that no negligence on the
part of the appellant had been established and it was on account of the,
negligence of the mason that the chimney had fallen down.
This Court was of the view that the proximate
and efficient cause of the deaths was the negligence of the appellant in
choosing a pipe of 6 inches diameter and asking a mason (who was apparently not
a qualified person) to carry out the alterations and also continuing working at
least one oven there during the period while the alterations to the chimney
were being made.
(1) Cr. A. No. 72/65. (2) [1965] 2 S. C. R.
622.
772 In another recent decision, Balachandra
Waman Pathe v. The State of Maharashtra,(1) this Court referred with approval
to what was said by Straight, J. in Empress of India v. Indu Beg(2) that
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. In Queen Empress v.
Bhutan(1) the lessee of a government ferry having the exclusive right of
conveying passengers across a certain river was held to be guilty under s. 304A
when he had committed the negligent act of putting a boat in the ferry which
was in an unsafe condition and which sunk resulting in some of persons getting
drowned. The Punjab Chief Court found a person guilty under ss. 304A and 338 in
Kamr-ud-din v. King Emperor(4) when he had consigned two boxes containing fireworks
to the Railway falsely declaring them to contain iron locks with the result
that in loading one of the boxes exploded killing one coolie and injuring
another. The inadvertence to the results of concealing the true character of
the contents of the box which was the failure of duty to the public at large
and the knowledge of the dangerous nature of the contents which must be
inevitably presumed coupled with the consequences were regarded as constituting
a complete offence under the sections.
Adverting to English law, the case of Regina
v. David Dant(5) is highly instructive. This is what Erle, C.J.
observed "The defendant turned a
dangerous animal on to a common where there was a public footpath.
This has been found by the jury to be
culpable negligence, and the child's death was caused by it. Ordinarily
speaking these are all' the requisites of manslaughter. It is. contended,
however, that no offence was committed, because as we must take it, the child
was not on the path. the jury having found that it was very near, but that they
could not say whether it was on or off. In my opinion the defendant is
responsible for having brought so great a danger on persons exercising their
right to cross the common; and it is not a ground of acquittal that the child
had strayed from the path." In another case, Rex v. Pittwood(6) the
prisoner was charged with manslaughter on the ground that he had been negligent
in not (1) Cr. A. 62 of 1965 decided on 20-11-67.
(2) 1. L. R. III All. 776.
(3) 1. L. R. XVI All. 472.
(4) 1905 P. R. 22. (Cr.) (5) 169 English
Reports (C. C. ) 1517.
(6) (1902) 19 T. L. R. 37.
773 closing a gate when a train passed which
it was his duty to do with the result that White who was in a hay cart was
killed while the cart was struck by the train which came when it was crossing
the line. Wright, J. was of the opinion that the prisoner had been guilty of
gross and criminal negligence as he was paid to keep the gate shut when the
train came and protect the public. It was a clear case of misfeasance as the
prisoner directly contributed to the accident and he was guilty of
manslaughter.
All the above cases show that criminal
negligence can be found on varying sets of circumstances. The tests which have
been applied appear to be fully applicable to the facts of the present case
including the one of direct and efficient cause. The appellants had,
undoubtedly displayed a high degree of negligence by allowing or causing to be
used dangerous and prohibited compositions and substances which must be held to
have been the efficient cause of the explosion.
The appellants were therefore rightly
convicted and sentenced under ss. 304A and 337 of the Indian' Penal Code.
As no other point has been pressed or arises
for consideration, the appeal is dismissed. The appellants shall forthwith
surrender to their bail bonds.
Y.P. Appeal dismissed.
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