IN THE COURT OF SH. SAURABH PRATAP SINGH LALER METROPOLITAN MAGISTRATE-06 (East), KARKARDOOMA COURTS, DELHI. [CASE NUMBER] PS: Vivek Vihar Offence complained of : [SECTION] [ACT] Date of commission of offence : 27.06.2002 Unique Case ID No. : 02402R0009632002 STATE Vs. [ENTITY] S/o Sh. [ENTITY] R/o 158/10 D, Karkari Mode, Vishwas Nagar, Delhi. Also at 518, 10-D, Karkari Mode, Vishwas Nagar, Delhi. Date of Institution : 27.11.2002 Plea of accused : Pleaded not guilty. Date of reserving judgment/ order : 15.03.2011 Date of pronouncement: 15.03.2011 Final Order : Acquitted BRIEF STATEMENT OF THE REASONS FOR THE DECISION ALLEGATIONS The story of the prosecution is that on 27.06.2002 at about 2:30 AM at M/s Vee Kay Cables Company, 331 Halkara Kuan, Lane No. 4, Jwala Nagar, Delhi, falling within the jurisdiction of Police Station Vivek Vihar, the accused [ENTITY] failed to take proper care and precaution with respect to the cable wire of electricity because of which worker [ENTITY] came into contact with the said cable wire and sustained electric shock, which FIR No. 162/02 Page No. 1 / 14 ultimately resulted into his death due to electrocution. FIR On the basis of the said allegations, an FIR bearing number 162/02 under section [SECTION] [ACT] was lodged at Police Station Vivek Vihar on 27.06.2002. CHARGE After investigation, charge-sheet under [SECTION] [ACT] was filed on 27.11.2002. The accused was summoned to face trial and he was supplied the copy of charge sheet as per [SECTION] [ACT] On the basis of the charge-sheet, a notice for the offence punishable under section [SECTION] [ACT] was framed against the accused [ENTITY] and read out to the said accused person, to which the accused person pleaded not guilty and claimed trial on 03.03.2005
JUDICIAL RESOLUTION To bring home the guilt of causing injuries by negligence, three things need to be proved by the prosecution that to beyond any reasonable doubt. The three essential ingredients are as follows:-
(1)That the incident actually took place. (2)That the incident took place due to the negligent behaviour of the accused as he failed to take proper care and precaution of the cable wire carrying electric current despite warning.
(3)That the accused was the person who was responsible for the incident directly i.e., there is direct nexus between the incident and the negligence of the accused.
These words i.e "rash" and "negligent", have not been defined in the [ACT]. However as per Blacks Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
Quoting from the article "Negligence, Mens Rea and Criminal Responsibility" by [ENTITY] in Punishment and Responsibility the dictionary further goes on to explain the difference between an act done inadvertently and an act done negligently.
"[A] careful consideration is needed of the difference between the meaning of the expression like 'inadvertently' and 'while his mind was a blank' on the one hand, and 'negligently' on the other hand. In ordinary English, and also in Lawyer's English, when harm has resulted from someone's negligence, if we say of that person that he has acted negligently we are not thereby merely describing the frame of mind in which he acted. 'He negligently broke a saucer' is not the same kind of expression as 'he inadvertently broke a saucer'. The point of adverb 'inadvertently' is merely to inform us of the agent's psychological state, whereas if we say 'He broke it negligently' we are not merely adding to this an element of blame or reproach, but something quite specific, viz. we are referring to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take precautions against harm. The word 'negligently', both in legal and non legal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly descriptive psychological expression like 'his mind was a blank'."
The Oxford Advanced Learner's Dictionary, Sixth Edition defines 'Rash' as doing something that may not be sensible without first thinking about the possible results.
Elaborating further, in [PRECEDENT], decided on 2.6.2003, Himachal Pradesh High Court, while dealing with the meaning of the expression " rash- ness " and " negligence " held as follows :
"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause in- jury and without knowledge that injury would probably be caused. Therefore, to incur criminal li- ability, the act must be done with rashness or in- difference as to the consequences. Criminal negli- gence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a in- dividual."
The court would also like to refer to a very recent judgment of the Honorable Supreme Court of India elaborating further the requirements of [SECTION] of [ACT]. Quoting from [PRECEDENT].
"[SECTION] applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of [SECTION] and [SECTION] [ACT]. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under [SECTION] Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. As noted above, " Rashness " consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with reck- lessness or indifference as to the consequences. Criminal negligence on the other hand, 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 ac- cused person to have adopted.
8. The distinction has been very aptly pointed out by [ENTITY], J. in these words :
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions 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 negligence of the civic duty of circumspection." (See In Re : Nidamorti Nagabhusanam 7 Mad.
HCR 119)".
In order to prove the above said allegations, the prosecution has examined 4 witnesses namely Sh. [ENTITY] as PW-1, Dr. [ENTITY] as PW-2, W/ASI [ENTITY] as PW-3 and Sh. [ENTITY] as PW-4.
PW- 1 Sh. [ENTITY], JE in BSES Yamuna Power Ltd., deposed that on 27.06.02 on the instructions of AE, he inspected the site of M/s Vee Kay Cable Company along with [ENTITY], Line Man and found that there was no leakage of current in the premises. The said witness exhibited his report as Ex. PW-1/A. The said witness was not cross-examined by Ld. Counsel for the accused despite opportunity being given.
PW- 2 Dr. [ENTITY] had conducted the post mortem of deceased [ENTITY] and exhibited his report as Ex. PW-2/A, as per which the cause of death was Asphyxia and Myocardial Anoxia consequent to respiratory muscle paralysis and cardiac fibrillation as a result of electric current passing through the body. Thus, the said witness proved that the cause of the death of deceased was electrocution.
The said witness was cross-examined by Ld. Counsel for the accused, but nothing material is found therein.
PW- 3 W/ASI [ENTITY] had recorded the FIR of the present case Ex. PW-3/A on the basis of rukka brought by Ct. [ENTITY] and sent by SI [ENTITY] on 27.06.02.
The said witness was not cross-examined by Ld. Counsel for the accused despite opportunity being given.
PW- 4 [ENTITY] had taken photographs of the spot at the instructions of the IO on 27.06.02.
Nothing material is found in his cross examination. Thus, all the 4 witnesses examined by the prosecution since 2005 when notice was framed upon the accused, are formal witnesses and sufficient only to prove that deceased [ENTITY] expired on 27.06.02 due to electrocution and that an FIR with respect to the said incident was lodged on the same day at PS- Vivek Vihar.
The material witnesses in the present case to prove the allegations are PWs- [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. The said witnesses were summoned on several occasions since 2005 and they were also summoned through IO/ SI [ENTITY], however, the IO failed to trace the said witnesses and also made a statement on oath in this regard on 22.05.2010, 08.11.2010 and 14.02.2011. In view of the said statement of the IO and also in view of the report on the summons sent to the said witnesses, the court was satisfied that the said witnesses were not traceable despite all efforts and the said witness were therefore dropped on 25.02.2011.
In the absence of testimony of the aforesaid six witnesses, the prosecution can never prove that the death of the deceased [ENTITY] was caused due to the negligence of the accused [ENTITY].
In the absence of the testimony of the aforesaid 6 witnesses, the testimony of all the remaining formal witnesses together is insufficient to prove the allegations against the accused.
In the opinion of the court, the present case is a fit case where the court should exercise its power under [SECTION] of [ACT] and stop the proceedings as continuing with trial and examining remaining formal witnesses will not only be wastage of state money rather it will also be wastage of judicial time and harassment to the accused.
In "[PRECEDENT] ( Coram : 7 [ENTITY], C.J.I., [ENTITY], [ENTITY], [ENTITY], [ENTITY], Mrs. [ENTITY], [ENTITY], JJ.) the Honorable Supreme Court while commenting upon the right to speedy justice observed:
"22. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The [ACT], as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. [SECTION], dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. [SECTION] confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. [SECTION], in [SECTION] of [ACT], on Trial Summons - cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power to the High Court, under [SECTION] can be invoked to make such orders, as may be necessary, to give effect to any order under the [ACT] or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under [SECTION] of [ACT] for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by [SECTION] of the [ACT]. The [ACT] Bench in [ENTITY]'s case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from [SECTION], the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied) "30.For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (1996 AIR SCW [SECTION]9 : AIR 1996 SC 1619 : 1996 Cri LJ 2380) (as modified in Common Cause (II) 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195 (1998 AIR SCW 3208 : AIR 1998 SC 3281 :
1998 Cri LJ 4596) and [ENTITY] (I) and (II) (1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1998 Cri LJ 4541), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold:-
(1) The dictum in [ENTITY]'s case is correct and still holds the field.
(2) The propositions emerging from [SECTION] of the [ACT] and expounding the right to speedy trial laid down as guidelines in [ENTITY]'s case, adequately take care of right to speedy trial. We uphold and re-affirm the said propositions. (3) The guidelines laid down in [ENTITY]'s case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings.
The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), [ENTITY] (I) and [ENTITY] (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), [ENTITY] Case (I) and (II) . At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in [ENTITY]'s case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and a mandatorily obliging the court of terminate the same and acquit or discharge the accused.
(5) The Criminal Courts should exercise their available powers, such as those under [SECTION], [SECTION] and [SECTION] of [ACT] to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under [SECTION] of [ACT] and [SECTION] and [SECTION] of [ACT] can be invoked seeking appropriate relief or suitable directions.
(6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary
- quantitatively and qualitatively - by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act." (emphasis supplied) In "[PRECEDENT] (Coram : 2 [ENTITY] AND [ENTITY], JJ.)the Honorable Supreme Court, while relying upon the aforesaid judgment, observed:
"16. Notwithstanding elaborate enunciation of [SECTION] of the [ACT] in [ENTITY] (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal trial shall not proceed pronouncements of this Court in "Common Cause" A Registered Society Vs. Union of India (UOI) and Ors., "Common Cause", A Registered Society Vs. Union of India and Ors., [ENTITY] Vs. State of Bihar and [ENTITY] II Vs. State of Bihar gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused. The confusion on the issue was set at rest by a seven- Judge Bench of this court in [PRECEDENT]. Speaking for the majority, [ENTITY], J. (as his Lordship then was) while affirming that the dictum in [ENTITY]'s case (supra) is correct and still holds the field and the propositions emerging from [SECTION] of the [ACT] and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the [ENTITY]'s case (supra) are not exhaustive but only illustrative.
They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the factsituation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under [SECTION], [SECTION] and [SECTION] of [ACT] to effectuate the right to speedy trial. In appropriate cases, jurisdiction of the High Court under [SECTION] [ACT] and [SECTION] and [SECTION] of the [ACT] can be invoked seeking appropriate relief or suitable directions. The outer limits or power of limitation expounded in the aforenoted judgments were held to be not in consonance with the legislative intent." (emphasis supplied) Accordingly, in the opinion of the court, in the light of the above cited judgments, the court needs to exercise its power under [SECTION] [ACT] to make the ends of justice meet.
Final Order In the light of the aforesaid discussion and cited judgments, the court while protecting the right of the accused person to have speedy justice invokes the power conferred upon it under [SECTION] of [ACT] to stop the proceedings against the accused person in the present summons police case and hereby releases the accused person, which shall have the effect of acquittal.
Accordingly, accused [ENTITY] is acquitted. As per [SECTION] of the [ACT], as inserted vide the [ACT], which came into force on 31.12.2009, the personal bond and the surety bond of the accused as well as surety shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 15.03.2011.
([ENTITY]) MM-06(East)/ KKD/ 15.03.2011 Certified that this judgment contains 14 pages and each page bears my signatures.
([ENTITY]) MM-06(East)/ KKD/ 15.03.2011