Case: Brijesh Kanubhai Patel and Ors Vs. The State of Maharashtra and Ors

the act of the accused must be proximate, immediate or efficient cause of death of victim without the intervention of any other persons negligence. The court had also observed that there had been no allegation against the directors for an offence attributed to the company and thus the directors cannot be held vicariously liable. Said decision refers to the decision in S.K. Alag vs. State of Uttar Pradesh and others - (2008) 5 SCC 662 , wherein the Apex Court has observed that, save and except some provisions specifically providing therefor, Indian Penal Code does not contemplate any vicarious liability on the part of a party who is not charged directly for commission of an offence. The division bench has also considered the decision of the Apex Court in the case of M/s. Thermax Ltd. And others vs. K.M. Johny and others - 2011 (11) SCALE 128 , wherein it has been observed that, concept of vicarious liability is unknown to criminal law and in absence of any specific details no person can be prosecuted under the alleged complaint. The court has also, with reference to the decision in the case of Arvind Navinchandra Mafatlal and others vs. Palakavayalli Joseph Thomas and others - 2010(4) ABR (NOC) 385 (Bom.), and Pramod Parmeshwarlal Banka and others vs. State of Maharashtra and another – 2011 (5) AIR Bom. R. 679, observed that, reference to said Judgments may not be necessary since they take the same view. 20. The case of Sunil Bharti Mittal vs. Central Bureau of Investigation – (2015) 4 SCC 609 shows that, directors can be roped in only if there is sufficient incriminating evidence against them coupled with criminal intent or the statutory regime attracts the doctrine of vicarious liability. The said decision takes into account decision in the case of Keki Hormusji Gharda vs. Mehervan Rustom Irani – (2009) 6 SCC 475 , wherein it has been observed that, Indian Penal Code, save and except in some matters does not contemplate any vicarious liability on the part of a person and commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. 21. The judgment in the case of S.K. Alagh vs. State of U.P. and others, supra, is to the effect that that, in absence of any provision laid down under the statute, a director of a company or an employee cannot be held to be vicariously liable for any offence committed by the company itself. Albeit, in the same decision it has been observed that, whereas a person in-charge of the affairs of the company and in control thereof has been made vicariously liable for the offence committed by the company along with the company but even in a case falling under section 406 of the Indian Penal Code vicarious liability has been held to be not extendable to the directors or officers of the company. 22. In the case of Maksud Saiyed vs. State of Gujarat and others – (2008) 5 SCC 668 , the Apex Court has observed that, vicarious liability of the managing director and director would arise provided any provision exists in that behalf in the statute and even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. In the case of Pramod Parmeshwarlal Banka and others vs. State of Maharashtra and others, supra, it has been observed to the aforesaid effect, as also decision in the case of Arvind Navinchandra Mafatlal and others vs. Palakavayalli Joseph Thomas and others, supra, says similar. 23. The decision in the case of State of Gujarat vs. Haidarali Kalubhai – (1976) 1 SCC 889 holds that, section 304-A by its own definition totally excludes the ingredient of section 299 or section 300 of the Indian Penal Code. Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a persons death are ingredients of the offence of culpable homicide. Further, it has been observed that, the case as stated in the first information report does not make out a case of any wilful or deliberate act on the part of the accused in order to cause death of deceased nor any enmity of the accused with the deceased established. Similar are the observations of the Supreme Court in the case of Keshub Mahindra vs. State of M.P. - (1996) 6 SCC 129. 24. While cases, referred to above, say as aforesaid, in present matter it is not the case of the informant at all, even for the sake of argument, that excavation has been done by the applicants with an intention to cause death of a person. There is absence of mens rea which would exclude application of the provision. The accusations in the first information report would not be sufficient to constitute an offence by applicants punishable under section 304 of the Indian Penal Code. The first information report, therefore, falls short of making out case against applicants for offence punishable under section 304 of the Indian Penal Code and thus is untenable. 25. There is an affidavit in reply by the informant dated 21st June 2021 stating that his statement has been recorded before judicial magistrate, first class, Badnapur and pursuant to the same it is being filed. It has been referred to in the same that son of the informant died due to accident as he slipped into the river and drowned. The informant as well as his wife have given a declaration that the first information report has been lodged under misgivings and under pressure from political leader. 26. All these gives indication that further prosecution of the proceeding under section 304 of the Indian Penal Code is unlikely to lead to its logical end and would be an exercise in futility and an abuse of process of law.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16. The applicants have been sought to be charged of commission of offences under section 304 read with section 34 of the Indian Penal Code, along with sections 3 and 4 of the the Mines and Minerals Act.17. Perusal of the provisions under sections 3 and 4 of the Mines and Minerals Act makes it clear that section 3 deals with definitions, whereas section 4 requires prospecting or mining operations to be under licence or lease. It is queer as to what for those are referred to in the first information report.In the present matter, it is not the case at all, nor there is any accusation in the first information report that the alleged acts attributed to the applicants have been done with a view to cause death. As submitted on behalf of the applicants, such a mens rea or actus reus is absolutely absent. It is nobodys case that, any direct act is attributable to the applicants nor their presence has been alleged on the spot at any time before the incident or even at any time while the pits were dug and / or that the thing happened under their directions. The accusation is that mines and minerals have been excavated unauthorizedly from the site for construction of the road undertaken by the applicants joint venture. The investigations on record have not gone beyond recording the statements of the persons. The notice referred to in the investigation is not for the excavation on the spot of incident and is of a place from different taluka. The same is being dealt with by the applicants separately. The investigation discloses there is correspondence by the authorities to the effect that the joint venture had not been authorized to cause excavation of mines and minerals. No material emerges which can attribute act of mining on the spot of the incident to the applicants. In such a situation, it is not a case where it can be said that it is a culpable homicide at the instance of the applicants. Apart from aforesaid, the first information report has been lodged almost one month after the incident, based on the information supplied by the villagers. There are only bare statements that large scale excavation has been done unauthorizedly for supplying raw material for construction of road.19. In Civil Application (CAO) No.1287 of 2016 in Public Interest Litigation No.56 of 2016 (Shahbaz Abrar Siddiqui vs. the State of Maharashtra and others), a division bench of this court in its decision dated 28th July 2016, taking stock of the legal position, has observed that, perusal of section 304-A, section 336 and 337 of the Indian Penal Code would show that to constitute an offence under said provisions, a person is required to do any rash or negligent act and even neglect to do something which a prudent man is supposed to do, leading to the consequences as provided under said sections, may also constitute ingredients of offences under said provisions. The provisions as observed thereunder would require a specific role attributed to an individual of doing any rash or negligent act, or at least, there will have to be an assertion that a person who was required to do something in law, has failed and neglected to do the same, leading to the consequences referred to in the provisions. It has further been observed that, there had been no particular averment either in the complaint or in the petition. The decision also further extracts a portion from decision of the Apex Court in the case of Sushil Ansal vs. State through C.B.I., - 2014 SC 190, as under:-We may now advert to the second and an equally, if not more important dimensions of the offence punishable under Section 304-A Indian Penal Code, viz. that the act of the accused must be the proximate, immediate or efficient cause of the death of the victim without the intervention of any other persons negligence. This aspect of the legal requirement is also settled by a long line of decisions of Courts in this country. We may at the outset refer to a Division Bench decision of the High Court of Bombay in Emperor v. Omkar Rampratap (1902) 4 Bom L.R. 679.The division bench had further observed, it will have to be shown that the act of the accused must be proximate, immediate or efficient cause of death of victim without the intervention of any other persons negligence. The court had also observed that there had been no allegation against the directors for an offence attributed to the company and thus the directors cannot be held vicariously liable.Said decision refers to the decision in S.K. Alag vs. State of Uttar Pradesh and others - (2008) 5 SCC 662 , wherein the Apex Court has observed that, save and except some provisions specifically providing therefor, Indian Penal Code does not contemplate any vicarious liability on the part of a party who is not charged directly for commission of an offence. The division bench has also considered the decision of the Apex Court in the case of M/s. Thermax Ltd. And others vs. K.M. Johny and others - 2011 (11) SCALE 128 , wherein it has been observed that, concept of vicarious liability is unknown to criminal law and in absence of any specific details no person can be prosecuted under the alleged complaint.The court has also, with reference to the decision in the case of Arvind Navinchandra Mafatlal and others vs. Palakavayalli Joseph Thomas and others - 2010(4) ABR (NOC) 385 (Bom.), and Pramod Parmeshwarlal Banka and others vs. State of Maharashtra and another – 2011 (5) AIR Bom. R. 679, observed that, reference to said Judgments may not be necessary since they take the same view.22. In the case of Maksud Saiyed vs. State of Gujarat and others – (2008) 5 SCC 668 , the Apex Court has observed that, vicarious liability of the managing director and director would arise provided any provision exists in that behalf in the statute and even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. In the case of Pramod Parmeshwarlal Banka and others vs. State of Maharashtra and others, supra, it has been observed to the aforesaid effect, as also decision in the case of Arvind Navinchandra Mafatlal and others vs. Palakavayalli Joseph Thomas and others, supra, says similar.23. The decision in the case of State of Gujarat vs. Haidarali Kalubhai – (1976) 1 SCC 889 holds that, section 304-A by its own definition totally excludes the ingredient of section 299 or section 300 of the Indian Penal Code. Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a persons death are ingredients of the offence of culpable homicide. Further, it has been observed that, the case as stated in the first information report does not make out a case of any wilful or deliberate act on the part of the accused in order to cause death of deceased nor any enmity of the accused with the deceased established. Similar are the observations of the Supreme Court in the case of Keshub Mahindra vs. State of M.P. - (1996) 6 SCC 129. 24. While cases, referred to above, say as aforesaid, in present matter it is not the case of the informant at all, even for the sake of argument, that excavation has been done by the applicants with an intention to cause death of a person. There is absence of mens rea which would exclude application of the provision. The accusations in the first information report would not be sufficient to constitute an offence by applicants punishable under section 304 of the Indian Penal Code. The first information report, therefore, falls short of making out case against applicants for offence punishable under section 304 of the Indian Penal Code and thus is untenable.25. There is an affidavit in reply by the informant dated 21st June 2021 stating that his statement has been recorded before judicial magistrate, first class, Badnapur and pursuant to the same it is being filed. It has been referred to in the same that son of the informant died due to accident as he slipped into the river and drowned. The informant as well as his wife have given a declaration that the first information report has been lodged under misgivings and under pressure from political leader.26. All these gives indication that further prosecution of the proceeding under section 304 of the Indian Penal Code is unlikely to lead to its logical end and would be an exercise in futility and an abuse of process of law.