1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 228 OF 2009 Mohammad Nazir & Anr. .. Applicants VS. Kaizad Gustad & Anr. .. Respondents Dr.Yug Choudhary, for the applicants Mr.Junajo Shabwany i/b Mr.Rohit Sawant,for Res.no.1 Mr.P.A.Pol,APP for State CORAM:Mrs. Mridula Bhatkar, J. RESERVED ON :24th July,2009. DECIDED ON : 29th July, 2009. JUDGEMENT: 1. This revision petition is preferred by the aggrieved party i.e. the parents of the deceased against the order dated 14/1/2009 passed by Additional Sessions Judge, Mumbai discharging the accused from the charges of offence punishable under section 304 Part II of the Indian Penal Code. 2] The victim Nadiya Khan was working as an Assistant Director with the accused where he was shooting one film. Some 2 Scenes on the railway tracks were to be shot, so accused who was the director of the film had sought the necessary permission of the railway authorities. The railway authority had given him permission to shoot on dead track i.e. Track No.1 near Mahalaxmi Railway Station. The accused did not restrict himself to track no. 1 but went on track nos. 4,5 & 6 which were live tracks from which the local trains were running with high frequency. At the time of preparation of the rehearsal the accused was giving instructions on walkie talkie to his Assistant Directors including the deceased and he asked them to take position at track nos.5 and 6. While this, the deceased was knocked down by the local train. The accused and other staff noticed that the deceased was lying injured on the track. They realised that mishap had taken place. The accused gave incorrect information about the occurrence of the incident on the road instead of railway track. However,in the investigation the police revealed the true facts and they filed chargesheet against the accused for the offence punishable under section 304(A) ,182, 201 r/w section 34 of the Indian Penal Code . 3] The trial begun before the learned Judicial Magistrate, F.C.. 3 Till today the prosecution has examined 67 witnesses. After recording the evidence of these witnesses the learned Magistrate arrived at conclusion that there is material to invoke section 304 part II of the Indian Penal Code . Section 304 part II is grave offence and triable by the Court of Sessions. So the learned Magistrate at that stage committed the case to the Court of Sessions. When the matter came up before the Learned Sessions Judge, application under section 227 of the Code of Criminal Procedure for discharge from the charge of Section 304 part II of the Indian Penal Code was moved by the accused. The learned Sessions Judge allowed the said application. Being aggrieved with the said order the parents of the deceased have filed this revision application before this Court 4] The learned counsel appearing for the applicants has submitted that the learned Sessions Judge was wrong in discharging the accused from the charge under section 304 part II of the Indian Penal Code. Section 304 part II of the Code does not require intention but knowledge to do the act causing death is sufficient. He has further argued that the learned Sessions Judge has erroneously given importance to the absence of 4 intention but should have appreciated that the accused was in commanding position and he made the deceased stand on the live track nos. 5 & 6 violating the permission given to him only for dead track no.1. He highlighted that the accused had knowledge that standing at live railway track where the local trains were running after 2-3 minutes is sufficient material to frame the charge against the accused under section 304 part II of the Indian Penal Code. Based on the findings in (The state of Maharashtra through Khar Police Station Vs.Alister Anthony Pareira & Alister Anthony Pareira Vs.The State of Maharashtra through Khar Police Station ) reported in 2007 (II) B.C.R.Cri. 786, the point of culpatory knowledge was vehemently argued by the learned Counsel. He has further submitted that the evidence of P.W. 9,6,31,32,39, who have deposed that the deceased was asked to take position between track nos.5 & 6 by the accused ought to have been considered as material to frame charge under section 304(II) of the Indian Penal Code. 5] The learned counsel appearing for the accused has opposed this revision application and submitted that the deceased herself had gone to the spot . The learned counsel drew attention to the 5 Call Sheet which was prepared by the deceased herself in which the security warning was printed. It is further submitted that the accused had taken necessary permission of shooting from the railway authority and despite of the terms of the agreement the railway guards were not provided by the railway authority and the accused has taken necessary care while shooting on the railway track. 6] Following are the ingredients of section 304 part II of the Indian Penal Code. I] Culpable homicide not amounting to murder. 2] The act is done 3] with knowledge likely to cause death . 7] Section 304 part II of the Indian Penal Code does not speak about intention , therefore, the finding given by the “ ” learned Sessions Judge on the point of intention is illegal. Death of the victim is a very sad incident and the applicants are the unfortunate parents. 8] The submissions of learned counsel for the applicant that 6 the accused has given commands to the deceased to take position between live track nos.5 and 6 and this act of the accused was with the knowledge that it is likely to cause death under Section 304 Part II of the Indian Penal Code are not acceptable . The accused being a director was incharge of the shooting and was giving instructions to the staff and the deceased on walkie talkie. So these instructions or commands to take particular position were general in nature and bound to be given by the director to the unit at the time of shooting. In fact it is the part of the job of the director. To constitute offence under section 304 part II of the Indian Penal Code it is necessary to establish the proximity between the act done, the knowledge and the death. If the act done is remotely related to the death then there is no nexus between the knowledge and the act of the accused and the actual incident of death. The word likely is ‘ ’ used in the sense of higher degree of likelihood. The word cause which is placed before the word death clearly indicates ‘ ’ ‘ ’ that the act should be a direct cause of the death (causa causans) and it should not be a cause of the cause of the death . “ ” Lesser degree of care cannot be replaced as an ingredient i.e. act with knowledge likely to cause death. 7 9] Needless to say that in number of jobs/occupation risk runs to certain degree and employee voluntarily opts with consent for the said risk and the job. Thus, in the absence of nexus between the act and the cause of death the case does not fall under Section 304 Part II of the Indian Penal Code. All the ingredients, if present in any matter, as they are in the case in hand may apparently give impression of commission of offence under Section 304 Part II of the Indian Penal Code. However, all these ingredients has to be tested on the touchstone of proximity. The directness of the act and the incident only constitutes the offence and not otherwise. Taking into account this position of the law, the cause of death cannot be attributed to the act of giving commands by the accused. 10] The learned counsel for the applicant has relied on the Alister Pareira s case (supra) for the explanation of the terms ’ knowledge and act which are the ingredients of section 304(II) ‘ ’ ‘ ’ of the Code. Elaborate and enlightening analysis of term knowledge is found in paragraphs 37,40,42,43, and 47 of the said ‘ ’ ruling and expression act is explained and well defined in ‘ ’ paragraph 45 of the said judgment. 8 11] It appears that the learned Magistrate has passed committal order based on the ratio laid down in the case of Alister Pareira, reported in 2007(II) B.C.R.Cri.786. However, he lost sight of the facts of the case as in the criminal trial the nature of the offence changes from facts to facts. In that case Alister Pareira while driving a car had run over the persons who were sleeping on the footpath at night and the poor persons lost their lives. Hence, the act of Alister Pareira is held to be under section 304 part II of the Indian Penal Code. So, on facts, case of Alister Pareira is distinguishable. 12] With this discussion the order passed by the learned Sessions Judge requires no interference. At this stage it is necessary to note that the learned counsel appearing for the applicant pointed out that the observations or findings given by the learned Sessions Judge in respect of the offence for which he was charged and tried before the learned Magistrate are to be expunged and they should not come in the way of the learned Magistrate while deciding the matter. The submissions of the learned counsel are absolutely reasonable and the observations and reasoning given by the learned Sessions Judge about the 9 maintainability of the charge in respect of other offences for which the accused is charged and tried should be the ignored and the learned Magistrate to decide the case without being influenced by the findings given by the learned Sessions Judge. The Revision Application stands rejected. (MRS MRIDULA BHATKAR, J. )