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Judgment
This revisional application has been filed by Captain Shri Prakash and Prasad Ranjan Ghosh who are the Principal and Senior Administrative Officer respectively of Haldia Institute of Maritime Studies and Research to drop the proceedings of Sessions Case no. 21/January/2014 pending in the Court of learned Additional Sessions Judge, Haldia in the district of Purba Medinipur.
The petitioners have been made accused in the Sessions Case in which charge sheet was submitted against the accused persons including the petitioners under Sections 304 / 120 B/34 of the Indian Penal Code .
On a complaint of one Rajeshwar Prasad, Haldia P.S. Case no. 20/12 dated 09.02.2012 was started under Sections 302 / 120 B/34 of the Indian Penal Code . As per FIR complainant''s son Shivam Raj was a student in Haldia Institute of Maritime Studies and Research and he used to stay in college hostel. Said Shivam died by drowning in swimming pool of Haldia Dock Institute on 07.05.2011. Accused persons have been made responsible in the FIR for the death of Shivam Raj.
Petitioners prayed before the learned Additional Sessions Judge, Haldia for their discharge but instead of allowing the prayer learned Additional Sessions Judge observed that there are prima facie materials against the accused persons for the offence punishable under Section 304 of the Indian Penal Code and fixed a date for framing of charge.
In the revisional application, inter alia, the petitioners have contended that they cannot be prosecuted on the basis of vicarious liability and that they have been falsely implicated in the case because payment of compensation made by the petitioners to the complainant was considered by complainant as not satisfactory.
At the time of hearing learned advocate for the petitioners has argued that there was no nexus between the alleged incident and the petitioners who were not present in the scene of the occurrence and that there is no vicarious liability in criminal law unless the statute takes that also within its fold. He relied upon two decisions of the Hon''ble Supreme Court in Sham Sundar and Others Vs. State of Haryana reported in (1989) 4 SCC 630 and Aparnaa Shah Vs. Sheth Developers Private Limited reported in (2013) 8 SCC 71 in support of his arguments.
On the other hand, learned advocate for the State produced a copy of case diary of investigating police officer and has submitted that the petitioners are directly involved in causing the death of Shivam Raj and they have been made accused not fixing vicarious liability. She has drawn my attention to the pages 52 to 59, 66, 85 and 88 of the case diary in support of her arguments.
Having considered the materials of case diary and the arguments advanced before me the prima facie case as made out against the petitioners is that the petitioners being the persons who are liable to make necessary adequate arrangement for students'' learning how to swim and for supply of equipments for such learning they did not do so despite repeated appeal of the students before petitioners for doing so. Petitioners did not take care for learning of the students how to swim. The victim did not know how to swim. It has also been submitted for the State that had there been no wilful negligence of petitioners knowing that in the absence of infrastructure and adequate equipments and proper care a student having no knowledge of swimming may be a victim of death due to drowning, the fateful incident would not occur. Her such arguments are supported by the statements of witnesses recorded under Section 161 of the Cr.P.C. by investing police officer. There is no prima facie evidence to establish even by preponderance of probability at this stage that there was arrangement of basic equipments and safety measures for a non-swimmer as required (vide page 66 of the case diary). Without entering into further discussion on merits it can be said that it is not a fit case to hold at this stage by the Court in revisional jurisdiction that the petitioners had no criminal liability in the alleged incident of death of Shivam Raj. Such liability cannot be termed as vicarious liability at this stage according to the facts and circumstances of the case.
The judgments of the Hon''ble Apex Court cited by learned advocate for the petitioners do not relate to any case similar to the petitioners'' case under consideration.
The case of Aparnaa Shah Vs. Sheth Developers Private Limited relates to the offence punishable under Section 138 of the Negotiable Instruments Act. In that judgment Hon''ble Supreme Court has been pleased to observe in paragraph 27 of (2013) 8 SCC at page 82 -
"In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains the name of the appellant and her husband, the fact remains that her husband alone had put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in-chief of the complainant and a bare look at the cheque would show that appellant has not signed the cheque."
In Sham Sundar and Others Vs. State of Haryana (supra) a partnership firm violated the provisions of the Haryana Rice Procurement (Levy) Order, 1979 read with Section 7 of the Essential Commodities Act for which all the partners of the firm were prosecuted and convicted. In paragraph 10 of that reported judgment it has been held,
"............ More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. There may be partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be a travesty of justice to prosecute all partners and ask them to prove under the proviso to sub-section (1) that the offence was committed without their knowledge. It is significant to note that the obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub-section (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted. We, therefore, reject the contention urged by counsel for the State."
In the instant case, on hand the petitioners cannot be placed in the same situation of the sleeping partners of a firm according to the administrative liability of the petitioners and the facts and circumstances of the alleged offence. Therefore, the ratio of the two cited decisions does not fortify the petitioners for exonerating the petitioners from criminal liability.
In the light of my observations made in the foregoing paragraphs this revisional application is liable to be dismissed and therefore dismissed accordingly. However, the observations made in this judgment shall not have any effect in trial of the Sessions case.
Urgent Photostat certified copy of this judgment, if applied for, be given expeditiously to the parties or their advocates in compliance of usual formalities.