@JUDGMENTTAG-ORDER
M. Jeyapaul, J.@mdashThe first accused in S.C. No. 117 of 2008 on the file of the learned Additional District and Sessions Judge (Fast Track Court II), Tindivanam filed a petition invoking the provision u/s 227 of the Code of Criminal Procedure seeking discharge from the criminal proceedings but, the learned Additional District and Sessions Judge (Fast Track Court II), Tindivanam chose to dismiss the plea for discharge. Hence, the present criminal revision case before the court.
2. The petitioner would contend that he is the proprietor and licence holder of Sri Sakthi Explosive situate at Padirapuliyur and Thenalapakkam. He is a licenced blaster entitled to detonate the explosive under the Explosives Act, 1908. He entered into a memorandum of undertaking dated 7.4.2007 with M/s. SPL Infrastructure Construction which is engaged in the business of laying and expanding Highways. Under the terms of the said M.O.U, he despatched electric detonators and certain quantity of slurry in a jeep belonging to the petitioner. An accident was reported. The investigation would reveal that the explosion was as a result of throwing of mud on the explosive laden vehicle when smoke was coming therefrom by the people thronged to the place. Neither slurry nor the detonator ignited by itself. Further, the accident had taken place only on account of the negligence on the part of the deceased accused 2, 3 and 4. They did not warn the general public and as a result of their callous behaviour, the explosion had taken place causing loss to life and property. No ingredients of the offences under Sections 324, 326, 429, 286 and 304(ii) of the Indian Penal Code were made out. Therefore, he has sought for discharge from the criminal prosecution.
3. The respondent police, having investigated the case, filed final report as against the petitioner and five others of whom A2, A3 and A4 had died in the accident itself. The charge would read that the petitioner and other accused committed offences under Sections 324, 326, 427, 429, 168, 268, 286 and 304 part II of the Indian Penal Code read with Section 4 of the TNPPD Act and also under Sections 9B(1)(b), 3(c)(ii) of the Explosives Act, 1884 and Section 3(b) of the Explosive Substance Act, 1908.
4. The Trial Court, having adverted to the materials on record, has come to a decision that there is a prima facie case for charging the petitioner/first accused under the aforesaid penal provisions and consequently dismissed the petition seeking discharge.
5. Learned Senior Counsel appearing for the revision petitioner would confine his argument with respect to the charge u/s 304(ii) of the Indian Penal Code and Section 3(b) of the Explosive Substances Act. Though the revision petitioner challenged the charge as against him under the aforesaid penal provisions and preferred the revision challenging the dismissal of the plea for the discharge from the entire criminal proceedings, now the revision petitioner wants the charge u/s 304(ii) of the Indian Penal Code and Section 3(b) of the Explosive Substances Act be dropped.
6. The learned Senior Counsel appearing for the petitioner would submit that even as per the own showing of the prosecution, it is only a case of pure accident. Just because many precious lives were lost in the accident and property damage to the tune of several lakhs also has been caused on account of the accident, no motive can be attributed to the petitioner for the occurrence which took place on account of the accidental explosion. He would also submit that the statements collected by the investigating agency would disclose that on account of throwing of sand over the explosive laden vehicle, the accident had taken place. Further, the criminal negligence on the part of A2, A3 and A4 in not cautioning the public to go away to a safe distance has also contributed to the accident. It is his submission that ignoring the statements given by the witnesses in this case, the Trial Court has chosen to dismiss the petition seeking discharge in its entirety.
7. Learned Government Advocate (Criminal Side) would vehemently submit that two witnesses examined by the prosecuting agency have clearly spoken to the fact that the petitioner, who was specifically cautioned about the probable accident, took risk and directed the driver to ply the vehicle. Therefore, the materials collected would show that the petitioner, with the knowledge that the detonator and the slurry, if transported combinedly, would in all probability cause explosion, transported those materials in one vehicle. Therefore, the petitioner/first accused shall not be relieved of the charges u/s 304(ii) of the Indian Penal Code and Section 3(b) of the Explosive Substances Act.
8. The statements of the witnesses including the experts in the field of Explosive Substances recorded by the investigating agency would disclose prima facie that there had been criminal negligence on the part of the petitioner in transporting the explosive substance. Let us refer to the statements of Shanmugam, Rajendran and Murugadas recorded by the investigating agency. Shanmugam is a shot fire licence holder. He had obtained licence having undergone training before the Explosive Controller. The petitioner also is admittedly a shot fire licence holder. The said Shanmugam had warned against combined transportation through the vehicle electric detonator and slurry on the fateful day when the vehicle was loaded with electric detonator and slurry. A2 to A4 who were engaged by A1 for the purpose of transporting of those explosives also informed the petitioner/first accused in a very submissive manner that if detonator and slurry were taken together in a vehicle, it would definitely cause explosion. In fact, they refused to take the vehicle with electric detonator and slurry. But, the petitioner herein informed them that he would shoulder the responsibility and directed them to take the vehicle to the destination.
9. Rajendran also has given a statement that those unfortunate accused viz., A2 to A4, before loading the electric detonator and slurry in the same vehicle, cautioned the petitioner that it would definitely explode and they would also die in the explosion. The petitioner seems to have informed them that nothing would happen and if anything took place adversely, he was prepared to take the responsibility. Murugadas also has given statement that those ill-fated accused viz., A2 to A4 warned the petitioner and brought to his knowledge the serious consequences. The abovesaid statements of witnesses on record would go to show prima facie that the petitioner herein who was thoroughly informed of the grave consequences, chose to take the risk. The aforesaid materials would indicate that he had knowledge that the transportation of electric detonator with slurry in the same vehicle was likely to cause death and that he had maliciously caused the explosion with explosive substances viz., electric detonator and slurry resulting in loss of many lives and properties.
10. It is not a mere accident on account of rash and negligence act of the accused inviting penal provision u/s 304A of the Indian Penal Code. The statements of the witnesses referred to above would clearly indicate that though the petitioner had no intention to cause the death, he had the knowledge (being shot fire licensee), having been posted with serious consequences even on the day of the accident that his act was likely to cause death.
11. The learned Senior Counsel appearing for the petitioner cited the decision reported in Naresh Giri v. State of M.P. (2008) 1 SCC (Cri.) 324. That was a case where the bus driven by the accused was hit by a train at railway crossing resulting in death and injuries to passengers. Charges were framed u/s 302 of the Indian Penal Code and alternatively under Sections 304, 325 and 323 of the Indian Penal Code. The Supreme Court has held in that case that no knowledge can be attributed to the accused that he was aware that his act would probably result in death. Such an accident caused by the driver of the bus by parking the vehicle at the railway crossing will attract only offence u/s 304A of the Indian Penal Code and not the penal provision u/s 304(II) of the Indian Penal Code.
12. The learned Senior Counsel appearing for the petitioner cited yet another decision in Prabhakaran v. State of Kerala (2009) 1 SCC (Cri.) 873. That was a case where the driver of the bus drove the vehicle at enormous speed inspite of the caution given by the passengers to stop the vehicle. But, unfortunately, the vehicle dashed against a school child. The Supreme Court has held that just because the driver of the bus ignored the passengers'' and pedestrians'' cries cautioning him to stop the vehicle which was driven at a reckless speed, no knowledge that his act would probably result in death could be attributed. That was a case where the driver, of course, drove the vehicle in a rash and negligent speed with an idea to get past the school children who also raised their hands to stop the vehicle, but, unfortunately, he dashed against one of the school children and stopped the vehicle 15 to 20 feet ahead of the place of occurrence. That was a case of pure motor accident on account of reckless driving inspite of caution. In the instant case, the petitioner is a shot fire licence holder. He is aware of the serious consequences of transporting the electric detonator alongwith slurry. It is like loading a cotton with a burning firewood. If a commoner or layman had transported those two explosive materials combinedly, of course, no knowledge can be attributed. Further, warning has been given to the petitioner as to the grave repercussion. A2 to A4, before they die in the explosion, refused to take the vehicle informing the petitioner herein that it would definitely explode. In such circumstances, the court finds that the above ratio will not apply to the facts and circumstances.
13. The learned Senior Counsel appearing for the petitioner cited the decision in Keshub Mahindra v. State of M.P. 1996 SC (Cri.) 1124 wherein it has been held as follows:
...Consequently the material relied upon by the prosecution for framing a charge u/s 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. The entire material which the prosecution relied upon before the trial court for framing the charge and to which we have made a detailed reference earlier, in our view, cannot support such a charge unless it indicates prima facie that on that fateful night when the Plant was run at Bhopal it was run by the accused concerned with the knowledge that such running of the Plant was likely to cause deaths of human beings. It cannot be disputed that mere act of running a Plant as per the permission granted by the authorities would not be a criminal act. Even assuming that it was a defective Plant and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused in Tank No. 610 could not even prima facie suggest that the accused concerned thereby had knowledge that they were likely to cause death of human beings. In fairness to the prosecution it was not suggested and could not be suggested that the accused had an intention to kill any human being while operating the Plant. Similarly on the aforesaid material placed on record it could not be even prima facie suggested by the prosecution that any of the accused had a knowledge that by operating the Plant on that fateful night whereat such dangerous and highly volatile substance like MIC was stored they had the knowledge that by this very act itself they were likely to cause death of any human being. Consequently in our view taking the entire material as aforesaid on its face value and assuming it to represent the correct factual position in connection with the operation of the Plant at Bhopal on that fateful night it could not be said that the said material even prima facie called for framing of a charge against the accused concerned u/s 304 Part II of the Indian Penal Code on the specious plea that the said act of the accused amounted to culpable homicide only because the operation of the Plant on that night ultimately resulted in deaths of a number of human beings and cattle.
14. That was a case where the defective plant was run without taking any precautionary steps to avoid the unfortunate accident. The accused had no knowledge that by operating the said plant on the fateful night, the accident would take place and it would consume many lives. But, unfortunately, the accident took place and the tragedy was phenominal. The Supreme Court has held that no knowledge could be attributed to the accused that running of a defective plant on the fateful day would probably result in death. But, here in this case as already pointed out by this Court, the petitioner was specifically posted of the fact that transportation of electric detonator alongwith slurry would definitely cause explosion which would result in death. The records would show that he being a shot fire licensee is also aware of the dangerous consequences of such combined transportation of explosives.
15. In view of the above facts and circumstances, the court finds that the limited plea of the learned Senior Counsel appearing for the petitioner that the petitioner may be relieved of the charges u/s 304(ii) and Section 3(b) of the Explosive Substances Act is found not sustainable. The Trial Court has rightly dismissed the plea for discharge prayed for by the petitioner. Therefore, the criminal revision fails and it stands dismissed. The connected Miscellaneous Petition also stands dismissed.
