IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.32233 of 2007 ANAND KUMAR GUPTA & ORS Versus STATE OF BIHAR ----------- 2 12.10.2009 The instant application has been filed by the petitioners against the order dated 15.5.2007 passed by the Additional Sessions Judge, F.T.C. No. 5, Nalanda , Biharsharif in S.Tr. No. 635 of 200 whereby the petition filed on behalf of the petitioner under section 228 and 227 Cr.P.C. has been rejected. The petitioners are owner and Manager of Cinema Hall. The informant Shankar Kumar Mistry alleged that his son was working in the Cinema Hall as carpenter on the order of the owner and the Manager. During the course of repairing the ceiling of Cinema Hall the informant’s son fell and sustained injuries. He was referred to Rajgir Hospital from where he was referred to P.M.C.H. for treatment. As soon as he came at the gate of P.M.C.H. the informant’s son succumbed to the injury. Learned counsel for the petitioner submits that even assuming the entire prosecution to be true no case under section 304 of the I.P.C. is made out. The petitioner states that at the most a charge under section 304 A could be made out at best. Section 304 deals with the culpable homicide not amounting to murder. Section 299 of the I.P.C. reads as follows: “299. Culpable homicide. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” On the narration of the prosecution case it does not appear that the petitioner has committed any act with the intention to cause his death,or. with the knowledge that he is likely by such act to cause death. Counsel of - 2 - O.P. no., informant submits that he was doing the repairing of the ceiling and it appears that accused persons had not ensured full safety as the work was hazardous. Learned counsel for the informant submits that there is ample material for framing charge under section 304 and 304A of the I.P.C. He further submits that the deceased is also entitled to adequate compensation from the O.P. for not having adopted sufficient safety measures which resulted into death of the informant’s son. In view of the discussions made above, I find that the learned trial court has erred in rejecting the application for discharging the accused for the offence under section 304 of the Indian Penal Code. The matter is remitted back to the learned trial court for looking a fresh into the matter in accordance with law. In the result the impugned order dated 15.5.2007 passed by the trial court is hereby set aside. The application is allowed to the extent mentioned above. (Samarendra Pratap Singh, J) M.Rahman