1. By way of this petition, petitioner has prayed for following substantive relief:-

“It is, therefore, respectfully prayed that the present petition may kindly be allowed and the FIR bearing number 22/2019, lodged at Police Station Bhawanagar/Nichar, District Kinnaur, dated 01.04.2019 against the present petitioner and the subsequent proceedings pending before Ld. Sessions Judge, Kinnaur bearing No. 62/2019 may kindly be quashed and set aside in the interest of justice and fair play.”

2. Brief facts necessary for adjudication of the petition are that the Executive Engineer, National Highway Division, HPPWD, Rampur Bushehr, vide award letter dated 09.02.2018 had awarded, to the petitioner, the work of widening to two lanes with/without Geometrical Improvement in Km. 322/0 to 329/0 of NH-22 (New NH-05) in the State of Himachal Pradesh. Petitioner is Contractor by profession.

3. An FIR bearing No. 22, dated 01.04.2019, was registered at Police Station Bhawanagar, District Kinnaur, H.P. at 7.40 P.M., at the instance of one Inder Dass. It was recorded in the FIR that on 01.04.2019, complainant Inder Dass was on his way from Bhawanagar to Nichar in his personal car. He reached near place Latuksha at about 3.00 P.M and had to stop his vehicle as the widening work of the road by Amit Singla Company was in progress and many persons with their vehicles were waiting for road to open. A poclain machine was at work to clear the road for traffic. In the meanwhile, a person named Ved Prakash alighted from Vehicle No. HP-41A-0007, which was parked adjacent to the vehicle of the complainant, and after waiting for some time, Ved Prakash went towards poclain machine on the pretext that he would evaluate the situation. Ved Prakash reached near poclain machine. Dust was in the air and when the dust settled, it was noticed that operator of poclain machine was lifting Ved Prakash, who had fallen on ground and had received injury on stomach. Ved Prakash had become unconscious due to grievous injury. Ramesh Kumar, who was another occupant of the car from which Ved Prakash had alighted also came on spot. Ved Prakash was taken to Bhawanagar Hospital. It was alleged that the accident had taken place due to negligence of the operator of poclain machine and the Supervisor of Amit Singla company.

4. Police carried out the investigation and found that Fateh Ram was operating the poclain machine at the time of accident and Sanjeev Kumar was supervising the work on behalf of the contractor. Police found that Fateh Ram did not possess licence to operate the poclain machine. In fact, one, Happy was the operator of the machine who had valid licence, but was not available on spot at the time of accident. It was also discovered during investigation that poclain machine belonged to one Narender Kumar, who had given the said machine on hire to Amit Singla for operation. As per terms of the agreement between Narender Kumar and Amit Singla, operator was to be provided by owner of the machine.

5. On completion of investigation, the investigating agency presented report under Section 173 of the Code of Criminal Procedure (for short “Cr.P.C.”), recommending prosecution against Fateh Ram, Sanjeev Kumar and petitioner (Amit Singla) under Sections 336, 337, 304-A of the IPC and Sections 180 and 181 of the Motor Vehicles Act. It was alleged that firstly, poclain machine was being operated by a person who did not have licence to operate the machine and secondly no preventive steps had been taken on spot to stop the persons from approaching the area of operation of poclain machine.

6. I have heard Mr. Sharwan Dogra, Senior Advocate with Shri Pranay Pratap Singh, Advocate, for the petitioner and Mr. Desh Raj Thakur, learned Additional Advocate General for the respondent/State and have also gone through the record carefully.

7. Shri Sharwan Dogra, learned Senior Advocate has contended that admittedly petitioner was not present on spot at the time of accident. As per him, in absence of petitioner on spot, no act of rashness and negligence could be attributed to him as he was not directly responsible for the unfortunate accident. Shri Dogra further contended that there is no legal evidence on record to suggest even remote connection of petitioner with the alleged incident. On the strength of such submission, he further submitted that the cognizance taken by learned Chief Judicial Magistrate, Kinnaur at Reckong Peo, H.P. in Case No. 61-2 of 2019, is bad in law.

8. On the other hand, Shri Desh Raj Thakur, learned Additional Advocate General, has contended that there is sufficient material on record to proceed against the petitioner. He submitted that the petitioner was the contractor and overall incharge of the work. It was for the petitioner to have provided adequate means to stop people going near the operating machine. He also contended that since the poclain machine was being allowed to be operated by a person not having licence, petitioner cannot evade his responsibility.

9. The perusal of the investigation record and report under Section 173 of the Cr.P.C., submitted by the investigating agency, reveal that the reliance has been placed on the facts disclosed by complainant Inder Das, Ramesh Kumar (co-occupant of vehicle No. HP-41A-0007 with deceased Ved Prakash), Shankar Singh (brother of deceased), Sher Singh (eye witness), Narender Kumar (owner of poclain machine) and Happy (licenced operator of poclain machine). In addition, the documents i.e. award letter issued by Executive Engineer National Highway in favour of Amit Singla, MLC and postmortem report of the deceased, agreement by virtue of which Narender Kumar had given the poclain machine on hire to Amit Singla, Photographs, mechanical report of the poclain machine etc., have been relied.

10. From the statements of all the eye witnesses recorded under Section 161 Cr.P.C., it can be inferred that the poclain machine was operating on the road near place Latuksha. The movement of vehicles had stopped on either side. Vehicle No. HP-41A-0007 had also stopped. Deceased had alighted from the vehicle and walked towards the poclain machine. The machine was at work. The deceased Ved Prakash suffered injury on spot which proved fatal. What is alleged by all these witnesses is that had proper preventive steps been taken to restrict the movement of general public towards the area of operation of poclain machine, the accident would have been avoided. It was on account of negligence of the contractor and his staff that no such preventive measures were taken.

11. Further allegation of the prosecution is that accused Fateh Ram was allowed to operate the poclain machine, who was not having licence. The statements of Narender Kumar and Happy have been recorded under Section 161 of the Cr.P.C., to the effect that they had specifically instructed the Contractor and his staff to not to allow the operation of machine by anyone except Happy, who had licence to operate the machine.

12. It is not in dispute that the petitioner was not on spot at the time of accident. It is also not alleged against him that Fateh Ram was allowed to operate the machine with his consent or in other words, there is no material to suggest that petitioner was having knowledge about the operation of machine by a person not having licence. The material on record also suggest that the vehicular traffic had stopped due to operation of poclain machine for clearing the debris. It is, therefore, clearly inferable that whosoever was approaching the spot, at relevant time, was stopping the vehicle, noticing the ongoing work. Without going into the fact whether any sign boards etc., were placed on spot, evidently the magnitude of work was such that it was otherwise being noticed by passersby as suggested by the fact that vehicles on either side had stopped. Another factor which needs notice is that the petitioner was engaged in execution of work authorised by the Executive Engineer, National Highway. There is also nothing on record to suggest that the work was not being executed in the manner it ought to have been.

13. Now, in the aforesaid facts, the question arises whether the petitioner can be tried for offences under Sections 336, 337, 304-A of the IPC.

14. It is settled that for trying a person for an offence, mere existence of prima facie material is sufficient. In other words, the material which can be looked into at the initial stage of prosecution is the evidence collected by the investigating agency. If on perusal of the evidence collected by the investigation agency, prima facie involvement of a person in the commission of offence is made out, he is liable for prosecution.

15. In State of Haryana and others vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335, following categories of cases were mentioned by way of illustrations wherein the High Court may exercise the powers under Section 226 of the Constitution or the inherent powers under Section 482 of the Cr.P.C. to prevent abuse of process of Court or otherwise to secure the ends of justice:-

“(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the ac- cused;

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(3) Where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

16. In order to assess the rival contentions in the instant case, the category-3 as noticed above needs to be kept in mind.

17. Section 336 of the IPC reads as under:-

“336. Act endangering life or personal safety of others.—Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both.”

18. Section 337 of the IPC reads as under: -

“337. Causing hurt by act endangering life or personal safety of others—Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.”

19. Section 304-A of the IPC reads as under: -

“304-A. 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.”

20. The commission of rash or negligent act is sine qua non for attracting sections 336, 337 and 304-A IPC. To attract the mischief of rashness or negligence against a person, such act of omission or commission must be attributable to him which sans due and proper care or should be so reckless which is not expected from a prudent person in given circumstances. Further, to attract the criminal liability, there has to be some tangible material to infer such act of omission or commission.

21. The facts of the case do not suggest existence of any material sufficient to infer rashness or negligence on part of petitioner. As noticed above, there is no material on record to suggest that the machine was being operated by an unauthorised person with the consent or knowledge of the petitioner. Similarly, there is nothing on record to infer that as per site condition, work under execution was not ordinarily conspicuous to the passersby. Merely, because the witnesses have alleged that the proper sign board was not there will not be sufficient to attribute requisite rashness or negligence to the petitioner.

22. In addition to above the record also does not suggest that death of Ved Parkash was direct result of a rash or negligent act of the petitioner or was the proximate and efficient cause of his death without the intervention of another's negligence In Kurban Hussein Mohamedalli Rangawalla vs. State of Maharashtra, reported in AIR 1965 SC 1616 , the Hon'ble Supreme Court has held as under:-

“3. We shall first take up S. 304-A which runs thus :-

"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."

The main contention of the appellant is that he was not present when the fire broke out resulting in the death of seven workmen by burning and it cannot therefore be said that he caused the death of these seven persons by doing any rash or negligent act. The view taken by the Magistrate on the other hand which appears to have been accepted by the High Court was that as the appellant allowed the manufacture of wet paints in the same room where varnish and turpentine were stored and the fire resulted because of the proximity of the burners to the stored varnish and turpentine, he must be held responsible for the death of the seven workmen who were burnt in the fire. We are -however of opinion that this view of the Magistrate is not correct. The mere fact that the appellant allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it might be a negligent act, would not be enough to make the appellant responsible for the fire which broke out. The cause of the fire was not merely the presence of burners in the room in which varnish and turpentine were stored, though this circumstance was indirectly responsible for the fire which broke out. But what S. 304-A requires is causing of death by doing any rash or negligent act, and this means that death must be the direct or proximate result of the rash or negligent act. It appears that the direct or proximate cause of the fire which resulted in seven deaths was the act of Hatim. It seems to us clear that Hatim was apparently in a hurry and therefore he did not perhaps allow the rosin to cool down sufficiently and poured turpentine too quickly. The evidence of the expert is that the process of adding turpentine to melted rosin is a hazardous process and the proportion of froth would depend upon the quantity of turpentine added. The expert also stated that if turpentine is not slowly added to bitumen and rosin before it is cooled down to a certain temperature, such fire is likely to break out. It seems therefore that as turpentine was being added at about closing time, Hatim was not as careful as he should have been and probably did not wait sufficiently for bitumen or rosin to cool down and added turpentine too quickly. The expert has stated that bitumen or rosin melts at 300 degree F and if turpentine is added at that temperature, it will catch fire. The flash point of turpentine varies from 76 to 110 degree F. Therefore the cooling must be brought down, according to the expert, to below 76 degree F to avoid fire. In any case even if that is not done, turpentine has to be added slowly so that there may not be too much frothing. Clearly therefore the fire broke out because bitumen or rosin was not allowed to cool down sufficiently and turpentine was added too quickly in view of the fact that the process was performed at closing time. It is clearly the negligence of Hatim which was the direct or proximate cause of the fire breaking out, though the fact that burners were kept in the same room in which turpentine, and vamish were stored was indirectly responsible for the fire breaking out and spreading so quickly. Even so in order that a person may be guilty under s. 304-A, the rash or negligent act should be the direct or proximate cause of the death. In the present case it was Hatim's act which was the direct and proximate cause of the fire breaking out with the consequence that seven persons were burnt to death; the act of the appellant in allowing turpentine and varnish being stored at a short distance was only an indirect factor in the breaking out of fire.

4. We may in this connection refer to Emperor v. Omkar Rampratap, 4 Bom LR 679, where Sir Lawrence Jenkins had to interpret S. 304-A and observed as follows --

"To impose criminal liability under S. 304-A, Indian Penal Code, 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 be the cause causans; it is not enough that it may have been the cause sine qua non." This view has been generally followed by High Courts in India and is in our opinion the right view to take of the meaning of S. 304-A. It is not necessary to refer to other decisions, for as we have already said this view has been generally accepted. Therefore the mere fact that the fire would not have taken place if the appellant had not allowed burners to be put in the same room in which turpentine and varnish were stored, would not be enough to make him liable under S. 304-A, for the fire would not have taken place, with the result that seven persons were burnt to death, without the negligence of Hatim. The death in this case was therefore in our opinion not directly the result of a rash or negligent act on the part of the appellant and was not the proximate and efficient cause without the intervention of another's negligence. The appellant must therefore be acquitted of the offence under S. 304-A.”

23. The same reiteration of law has been made by the Hon'ble Supreme Court in Ambalal D. Bhatt versus The State of Gujarat reported in (1972)3 SCC 525 which reads as under:-

“10. It appears to us that in a prosecution for an offence under Section 304A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. If that were so, the acquittal of the appellant for contravention of the provisions of the and the Rules would itself have been an answer and we would have then examined to what extent additional evidence of his acquittal would have to be allowed, but since that is not the criteria, we have to determine whether the appellant's act in giving only one batch number to all the four lots manufactured on 12-11-62 in preparing batch No. 211105 was the cause of deaths and whether those deaths were a direct consequence of the appellants' act, that is, whether the appellant's act is the direct result of a rash and negligent act and that act was the proximate and efficient cause without the intervention of another's negligence. As observed by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap (1902) 4 Bom LR 679 the act causing the deaths "must be the cause causans; It is not enough that it may have been the causa sine qua non". This view has been adopted by this Court in several decisions. In Kurban Hussein Moham- medali Rangwala v. State of Maharashtra , the accused who had manufactured wet paints without a licence was acquitted of the charge under Section 304A because it was held that the mere fact that he allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it would be a negligent act, would not be enough to make the accused responsible for the fire which broke out. The cause of the fire was not merely the presence of the burners within the room in which varnish and turpentine were stored though this circumstance was indirectly responsible for the fire which broke out, but was also due to the overflowing of froth out of the barrels. In Suieman Rahiman Mulani v. State of Maharashtra the accused who was driving a car only with a learner's licence without a trainer by his side, had injured a person. It was held that that by itself was not sufficient to warrant a conviction under Section 304A. It would be different if it can be established as in the case of Bhalchandra v. State of Maharashtra that deaths and injuries caused by the contravention of a prohibition in respect of the substances which are highly dangerous as in the case of explosives in a cracker factory which are considered to be of a highly hazardous and dangerous nature having sensitive composition where even friction or percussion could cause an explosion, that contravention would be the causa causans.”

24. From the above exposition, it is clear that to attract prosecution for offence under Section 304-A of the IPC, it has to be established at least prima facie that death was result of rash or negligent act or that any such act was proximate and sufficient to cause death. Similar principle will apply to attract prosecution for offences under Sections 336 and 337 of the IPC.

25. Keeping in view the entirety of circumstances, I am of the considered view that the material on record is not sufficient to hold that the death of Ved Prakash was on account of any rash or negligent act of petitioner and also that his death was direct or proximate result of the alleged rash or negligent act of the petitioner. The mischief of Sections 180 and 181 of the Motor Vehicles Act will not apply against the petitioner in the given facts and circumstances of the case.

26. In view of the above discussion, the instant petition is allowed and the proceedings against the petitioner initiated in pursuance to FIR No. 22/2019, dated 01.04.2019, under Section 336, 337 and 304-A of the IPC and consequent cognizance order dated 11.09.2019 passed by learned Chief Judicial Magistrate, Kinnaur at Reckong Peo, H.P., in Case No. 61-2 of 2019 qua the petitioner are ordered to be quashed and set aside.

27. The petition is accordingly disposed of. Pending application(s), if any, shall also stand disposed of.