Crl.O.P(MD)Nos.
1041 and 1568 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.02.2022
CORAM :
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
Crl.O.P(MD)Nos.1041 and 1568 of 2022
and
Crl.M.P.(MD)Nos.746 and 1134 of 2022
Selvakumar ... Petitioner in Crl.O.P.(MD)No.1041 of 2022
Persis Gnanaselvi ... Petitioner in Crl.O.P.(MD)No.1568 of 2022
Vs.
1.State through
The Inspector of Police,
Tirunelveli Junction Police Station,
Tirunelveli City.
(Crime No.529 of 2021)
2.Maridurai,
Revenue Inspector,
Tirunelveli Circle,
Tirunelveli. ... Respondents in both Crl.O.Ps
Common Prayer: Criminal Original Petitions filed under Section
482 of Cr.P.C., to call for the records of the impugned FIR in Crime
No.529 of 2021 dated 17.12.2021 on the file of the 1st respondent police
and to quash the same.
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(In both Crl.O.Ps)
For Petitioner : Mr.V.Karthirvelu,
Senior Counsel,
for Mr.K.Prabhu
(In Crl.O.P.(MD)No.1041 of 2022)
For Petitioner : Mr.G.Prabhu Rajadurai
(In Crl.O.P.(MD)No.1568 of 2022)
For Respondents : Mr.M.Sakthi Kumar,
Government Advocate (Crl. Side).
For Intervenor : Mr.Ayiram K.Selvakumar
COMMON ORDER
Heard the learned Senior Counsel for the petitioner in
Crl.O.P.(MD)No.1041 of 2022, the learned counsel for the petitioner in
Crl.O.P.(MD)No.1568 of 2022, the learned Government Advocate
(Crl. Side) for the respondents and Mr.Ayiram K.Selvakumar, learned
counsel for the father of one of the victims.
2. On 17.12.2021, the toilet wall of Schaffter Higher Secondary
School collapsed leading to the unfortunate deaths of three boys. Few
others suffered injuries. Crime No.529 of 2021 was registered on the file
of Tirunelveli Junction Police Station for the offence under Section 304
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Part II of IPC. The Headmistress and the Correspondent of the school
were arrested and shown as accused in the FIR. They have filed these
petitions to quash the said FIR.
3. The learned Senior Counsel appearing for the petitioner in
Crl.O.P.(MD)No.1041 of 2022 and the learned counsel appearing for the
petitioner in Crl.O.P.(MD)No.1568 of 2022 reiterated the contentions set
out in the memoranda of grounds and called upon this Court to quash the
impugned FIR insofar as they are concerned.
4. Per contra, the learned Government Advocate (Crl. Side) for the
State submitted that the petitioners herein as persons in-charge of the
institution cannot wash away their responsibilities and that they were
rightly implicated as accused. He would further contend that the FIR
was registered only on 17.12.2021 and that it is too early to interfere
with the investigation. The learned counsel for the intervenor strongly
endorsed the aforesaid stand of the State. He would point out that as
many as three enquiries are going on and that it would be appropriate for
this Court to wait till the investigation is over. He pointed out that there
is absolutely no urgency since the accused have been granted bail. He
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pointed out that the inspection by the Government civil engineer
indicated that even without a proper foundation, the compound wall had
been erected. He called upon this Court to dismiss the quash petitions.
5. I carefully considered the rival contentions and went through
the materials on record. The incident is tragic and heart-rending. Three
young children have lost their lives for no fault of theirs. The materials
unearthed so far indicate that the toilet wall was constructed without
proper foundation. The question is whether for this occurrence the
petitioners deserve to be prosecuted. The school in question is a very old
institution. The toilet wall which collapsed was constructed by a
contractor in the year 2007. During the relevant time, the petitioners
were nowhere in the scene. Ms.Persis Gnanaselvi assumed charge as
Headmistress hardly a month prior to the occurrence. Mr.Selvakumar
became the Correspondent of the institution only in June 2021. I take
judicial notice of the fact that during the entire period, schools all over
Tamil Nadu were closed due to pandemic. Neither of the accused can be
imputed with knowledge regarding the structural stability of the toilet
wall.
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6. The FIR has been registered against the petitioners for the
offence under Part II of 304 of I.P.C. Sections 304 and 304A of I.P.C.
read as under :-
304. Punishment for culpable homicide not amounting to
murder - Whoever commits culpable homicide not amounting
to murder, shall be punished with imprisonment for life or
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the act by
which the death is caused is done with the intention of causing
death, or of causing such bodily injury as is likely to cause
death; or with imprisonment of either description for a term
which may extend to ten years, or with fine, or with both, if the
act is done with the knowledge that it is likely to cause death,
but without any intention to cause death, or to cause such
bodily injury as is likely to cause death.
304A. Causing death by negligence - Whoever causes the
death of any person by doing any rash or negligent act not
amounting to culpable homicide, shall be punished with
imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
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7. Section 304 can be invoked only if the accused commits
culpable homicide not amounting to murder. If the act is intentional, it
will fall under Part I. If knowledge alone can be attributed and there is
no intention, then the offence will fall under Part II. Section 299 of I.P.C.
defines culpable homicide as follows:-
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.
8. Section 300 of I.P.C. defines ' murder '. It also sets out five
exceptions. If culpable homicide falls within the exceptions, then the act
does not amount to murder. Section 304 can be pressed into service only
where the accused causes bodily injury; he must have either intention or
knowledge. Of course, failure to act when there is a legal duty could also
be a cause for death and in that event also, the penal provision can kick
in. The condition precedent is that the act or omission must be the
proximate cause for the death. If the act is committed intentionally or
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with knowledge of the consequences, Section 304 of IPC will come into
play. If criminal homicide is caused recklessly or negligently, then
Section 304A of IPC will be attracted. In Sushil Ansal V. State (2014) 6
SCC 173, the Hon'ble Supreme Court approved the proposition laid
down by Sir Lawrence Jenkins in Emperor V. Omkar Rampratap (1902)
4 Bom LR 679 in the following terms:-
“ ... to impose criminal liability under Section 304A of the Penal
Code, 1860, it is necessary that the death should have been the direct
result of a rash and negligent act of the accused, and that act must be the
proximate and efficient cause without the intervention of another's
negligence. It must have been the causa causans; It is not enough that it
may have been the causa sine quo non.”
' Causa causans ' has been defined in Black's Law Dictionary as the
immediate cause; the last link in the chain of causation. ' Proximate
cause ' has been defined as that which in a natural and continuous
sequence, unbroken by any efficient intervening cause, produces injury
and without which the result would not have occurred. The injury or
damage was either a direct result or a reasonably probable consequence
of the act or omission.
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9. By no stretch of imagination, the petitioners herein could be
imputed with the knowledge that there was reasonable possibility of the
toilet wall collapsing and causing the deaths in question. The petitioners
would definitely not have had any culpable intention. The offence under
Section 304 Part II of IPC is clearly not made out. The petitioners had
assumed charge as Headmistress and Correspondent respectively,
virtually on the eve of the occurrence. Of course, the school management
was clearly negligent. Whether the negligence would amount to criminal
negligence is a matter for investigation. The petitioners for the reasons
already set out cannot be fastened with any personal liability. The
impugned FIR is quashed only as regards the petitioners herein and not
in toto. The investigation shall go on. The contractor, who constructed
the wall and the persons who ought to have verified the structural
stability will have to face the consequences. Grant of relief to the
petitioners herein shall not be construed as casting any cloud on the
ongoing investigation. These criminal original petitions are allowed.
Consequently, connected miscellaneous petitions are closed.
03.02.2022
Index :Yes/No
Internet : Yes/No
PMU
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Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall be
the responsibility of the advocate/litigant concerned.
To:
1.The Inspector of Police,
Tirunelveli Junction Police Station,
Tirunelveli City.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN, J.
PMU
Crl.O.P(MD)Nos.1041 and 1568 of 2022
03.02.2022
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