Crl. Revision No. 1475 of 2007 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 1475 of 2007 Date of Decision:May 07, 2009 Neerpal ---Petitioner versus Sunil Sharma and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.R.K.Jain,Advocate, for the petitioner Mr. N.L.Sammi, Advocate for respondents No. 1. Ms. Maloo Chahal, DAG, Haryana *** SABINA, J. Neerpal-petitioner has filed this petition challenging order dated 9.1.2007 passed by Sessions Judge, Sonepat whereby revision petition filed by respondents against order dated 15.2.2006 passed b y Judicial Magistrate Ist Class, Sonepat, framing of charge under Section 304 -A of the Indian Penal Code (for short - “IPC”) against them was allowed. Prosecution case in brief as noticed by learned Sessions Judge, Sonepat in para 2 of the impugned order is as under:- “In short, the facts leading to the case are that Prem Singh was Crl. Revision No. 1475 of 2007 -2- employed as an Operator for the last about 22 years in Bainloan India Limited Factory, Kundli. On 25.12.2004 while working at the tower of the factory he slipped from the tower and fell down and sustained injuries to which he succumbed on the same day in E.S.I. Hospital, Rohini. Prem Singh fell from the tower because the safety measures were not in place as the nets of the tower were broken. Prem Singh's brother Nir Pal reported the matter to the police on 28.3.2005 leading to the registration of this case under section 304-A IPC. After completion of investigation, the police filed a charge-sheet in the court of Magistrate against the petitioners, who are the owner and Manager of the factory.” Learned counsel for the petitioner has submitted that the brother of the petitioner had fallen from 80 feet high tower as proper safety measures had not been taken by the respondents. The iron net of the tower was broken. In the present case, Prem Singh had fallen from tower of 80 feet height on 25.12.2004, who later succumbed to his injuries on the same day. The matter was reported to the police on 28.3.2005 which led to the registration of the FIR in question under Section 304-A IPC. After investigation, challan was presented against the respondents. Vide order dated 15.2.2006 charge was framed against the respondents under Section 304-A IPC by Judicial Magistrate, Ist Class, Sonepat. Aggrieved by the same respondents preferred a revision petition before Sessions Judge, Sonepat and the same was allowed vide impugned order dated 9.1.2007. While allowing the revision petition, learned Sessions Judge has observed Crl. Revision No. 1475 of 2007 -3- as under:- “There is no dispute that the penal proceedings under Section 92 of the Factories Act have not been initiated against the petitioners for their omission to provide the necessary fencing over the tower of their factory. Only a criminal case had been registered and being prosecuted against them. The only dispute in the case is whether the allegations levelled in the complaint to the effect that the petitioners did not provide the necessary iron net over the tower which resulted in the fall of Prem Singh from the tower attract the provisions of Section 304-A IPC. In G.P.Billai's (supra), there were allegations against the petitioners (in that case) that inspite of repeated bringing to the notice of the petitioners that the G.I. Pipe is giving current (electric shock), they neglected with irresponsibility t5elling that nobody will die by such shock. In that case, the death of a worker took place due to electrocution. So the negligence of the petitioners in that case was held to be giving rise to an offence under section 304-A IPC. The facts and the observations made jin Daljit Singh Ghai's case as well as Ambalal D. Bhatt's case (supra) were brought to the notice of the Hon'ble High court in G.P.Pillai's case. However, Daljith Singh Ghai's case was held to be distinguishable on facts. In the case in hand, the only allegation against the petitioners, who are the owner and Manager of the factory, is that iron net i.e. The safety measure, provided on the tower of the factory was broken as a result of which Prem Singh while working on the tower slipped and fell Crl. Revision No. 1475 of 2007 -4- down. There is no allegation that this lapse of the petitioners of not providing the necessary safety measures on the tower was ever brought to the notice of the petitioners or to the notice of any of them. Non-providing of the proper safety measure by the petitioners on the tower of the factory amounts to mere carelessness and not negligence, as held in Daljith Singh Ghai's case (supra), the fact of which are identical with the facts of the case in hand. The relevant portion of that judgment reads as under:- • “The allegation is that the occupier has not provided safety and protective measures which led to the fall and consequently death of the deceased. This act of the deceased cannot be attributed to the petitioners stating that there was a rash or negligent act on the part of the petitioners. Under the fact and circumstances of the case the degree of negligence or omission is the determining factor to call the act as criminal and in addition to that, there must be mens rea in criminal negligence. On the facts noted, it cannot be said that negligence of the accused was so patent to import mens rea. Mere carelessness is not sufficient to prosecute for the offence under section 304-A of the IPC” The observations made in G.P.Pillai's case (supra) are not applicable to the facts of the present case. In that case, there were specific allegations against the petitioners that inspite Crl. Revision No. 1475 of 2007 -5- of bringing to their notice repeatedly that there is possibility of electrocution, they neglected with irresponsibility telling that nobody will die by such shock. In this case, there is not even an allegation that breaking of iron net of the tower was ever brought to the notice of the owner or Manager thereof. They can be at the most said to be careless in not fencing the tower properly and providing the necessary safety measures. But that does not give rise to a criminal negligence which may constitute an offence under section 304 IPC.” Reasons given by the learned Sessions Judge, Sonepat while allowing revision petition are sound reasons. Learned Sessions Judge, Sonepat has rightly held that facts and circumstances of the present case were not such which may constitute offence under Section 304-A IPC. Accordingly, no interference is called for. Thus, this petition is dismissed. (SABINA) JUDGE May 07, 2009 PARAMJIT