Matin Shankarrao Bhosale vs State Of Maharashtra
- Court
- Supreme Court
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
2026 INSC 1198
CRIMINAL APPEAL NO. 5171/2026
(@Petition for Special Leave to Appeal (Crl.)
No.13889/2026)
MATIN SHANKARRAO BHOSALE & ANR ….Appellant(s)
VERSUS
STATE OF MAHARASHTRA & ANR …Respondent(s)
O R D E R
J.B. PARDIWALA, J.
1. Leave granted.
2. This appeal arises from the judgment and order
passed by the High Court dated 25th February, 2026 in
Criminal Application No. 239 of 2021, by which the
application preferred by the appellants before us seeking
quashing of the criminal proceedings, arising out of the
First Information Report bearing No. 39 of 2020, and the
consequent proceeding arising out of the same bearing
Chargesheet No. 15 of 2020 came to be rejected.
3. It appears from the materials on record that the two
appellants before us are sought to be prosecuted for the
offence punishable under Section 304 read with Section
Signature Not Verified
34 of the Indian Penal Code (for short, "the IPC").
Digitally signed by
VISHAL ANAND
Date: 2026.11.05
16:49:21 IST
Reason:
1
4. The Respondent No. 2 before us is the de facto
complainant, father of the deceased.
5. We take notice of the fact that the Respondent No.2,
although served with the notice issued by this Court, yet
has chosen not to remain present before this Court,
either in person or through an advocate, and oppose this
appeal.
6. The Respondent No.2, father of the deceased, lodged
a First Information Report dated 19th February, 2020
with Mangrul Chawala Police Station, District Amravati.
7. The FIR reads thus:
“Complaint, Police Station, Mangrul Chavala dt
19/02/2020, named Sajilal Shyamlal Belsare,
Occupation, Labourer, Caste Korku, Education 8th
class, address: Village Motha, Tq. Chikhaldara, Dist.
Amravati. I have come to the Police Station and I give
my oral statement as under, reside with my family
at the above mentioned address and I have been
working as a labourer, I have three sons and two
daughters, my daughter of three number Ku. Bharati
Belsare, aged 12 yrs. is studying in 7th Standard in
Prashnachinha Adivasi Ashram Shala, Mangrul
Chavala and she is residing in the hostel.)
I was working at the Brick Furnace of Sabir bhai,
Achalpur as a labourer then on dtd. 15/02/2020 at
about 5:30 p.m. Mr. Deshmukh the teacher of
Prashnachinha Adivasi Ashram Shala, Mangrul
Chavala came at Isegaon, Brick Furnace in a big four
wheeler and it was told to me by him that my
daughter is seek and therefore he requested me to
come with him to see my daughter, then I gave the
information to the owner of the Brick Furnace Mr.
Sabir bhai on telephone and I, with my wife in a
vehicle with Mr. Deshmukh Sir reached at Irwin
2
Hospital and then we were taken to the postmortem
room, there we got the information that the pillar of
cement and bricks collapse upon my daughter Ku.
Bharati and other girls of the Ashram Shala and
these girls are injured and my daughter died during
the medical treatment.
And therefore the entered into the postmortem room
and we saw there was head injury to my daughter
and the medical treatment is going on other injured
girls and therefore we entered into the postmortem
room, we found head injury to her and she was died.
The director of the hostel and the director of
Prashnachinha Adivasi Ashram Shala, Mangrul
Chavala Mr. Matin Bhosale deliberately made the
kaccha and standardless construction of pillar and
Matin Bhosale and the Superintendent of the hostel
did not take the precautions while constructing the
said pillar and because of their carelessness the
pillar of bricks and cement collapse upon my
daughter Ku. Bharati, she injured and she died
during the medical treatment.
The funeral programme of my deceased daughter is
over and therefore I have come to Police Station to
lodge a Police complaint against them. This is my
complaint and it has been typed as per my
suggestions and the print of the complaint read over
to me, the complaint is correct.”
8. Thus, the plain reading of the First Information
Report and the other materials on record would indicate
that the daughter of the Respondent No.2, namely Bharti,
was studying in the 7th standard in Adivasi Ashram
Shala, Mangrul Chawala. At the time of the unfortunate
incident, Bharti was 12 years of age.
9. The appellants before us are the President and
Superintendent of the School respectively.
3
10. The daughter of the Respondent No.2 met with a very
freak accident within the school premises and ultimately
died.
11. It appears that some construction of a pillar was
going on which unfortunately collapsed and fell on the
deceased, resulting in severe fatal injuries.
12. Investigation was undertaken and at the end of it,
charge-sheet came to be filed against the appellants for
the offence punishable under Section 304 read with
Section 34 of the IPC respectively, i.e., culpable homicide
not amounting to murder.
13. The appellants went before the High Court with a
prayer that even if the entire case put up by the
prosecution is believed or accepted to be true, none of the
ingredients to constitute the offence of culpable homicide
not amounting to murder could be said to be disclosed.
14. In other words, the appellants before us prayed
before the High Court that the proceedings should be
quashed as no offence could be said to have been made
out so far as the two appellants are concerned.
15. The High Court declined to quash the criminal
proceedings, observing as under:
“7. After hearing both the sides and on perusal
of the entire investigation papers it reveals that
there is no dispute that deceased was studying
in the said Ashram School. The recitals of the
FIR also shows that the construction around the
4
said pillar was sub standard material. The
pieces of the cement and bricks were forwarded
to CA which discloses the percentage of the
cement and sand aggregate 1:2:4 or 1:3:6. In
the present case, Exh.Nos. 1 and 2 i.e., mortar
pieces wrapped in plastic parcel A-1 and B-2
contains 18.54% and 14.78% and ratio of
cement sand aggregate is about 1:2:2 and
1:3.5:2 respectively. Thus, while constructing
the said pillar the ratio of cement was not
maintained. It further reveals from the
statement of the witnesses that the pillar was
not constructed properly by constructing a solid
base around the said pillar. The spot
panchanama specifically states that pillar was
not constructed by constructing solid base of
cement and iron around the said pillar and
therefore, the pillar was fallen.
8. The term negligence is used for the purpose
of fastening with liability under the criminal
law. Negligence is the breach of a duty caused
by the omission to do something which a
reasonable man, guided by those
considerations which ordinarily regulate the
conduct of human affairs would do, or doing
something which a prudent and reasonable
man would not do. The definition of negligence
is given in law of torts Ratanlal and Dhirajlal
("edited by justice J.P.Singh"), wherein it is
observed that negligence becomes actionable on
account of injury resulting from the act or
omission amounted to negligence attributable to
the person sued. The essential components of
negligence are three: "duty", "breach" and
"resulting damage". In the case of Jacob
Mathew vs. State of Punjab and another
reported in (2005) 6 SCC 1 observed that
""Recklessness on the part of the doer of an act
does presuppose that there is something in the
circumstances that would have drawn the
attention of an ordinary prudent individual to
the possibility that his act was capable of
causing the kind of serious harmful
consequences that the section which creates the
5
offence was intended to prevent, and that the
risk of those harmful consequences occurring
was not so slight that an ordinary prudent
individual would feel justified in treating them
as negligible. It is only when this is so that the
doer of the act is acting 'recklessly if, before
doing the act, he either fails to give any thought
to the possibility of there being any such risk or,
having recognized that there was such risk, he
nevertheless goes on to do it."
9. Thus, negligence is the breach of a duty
caused by the omission to do something which
a reasonable man, guided by those
considerations which ordinarily regulate the
conduct of human affairs would do, or doing
something which a prudent and reasonable
man would not do. Negligence becomes
actionable on account of injury resulting from
the act or omission amounting to negligence
attributable to the person sued. The essential
components of negligence as recognized are
three: 'duty', 'breach' and 'resulting damage'
that is to say:-
1. the existence of a duty to take care, which
is owed by the defendant to the complainant;
2. the failure to attain that standard of care,
prescribed by the law, thereby committing a
breach of such duty; and
3. damage, which is both causally connected
with such breach and recognized by the law,
has been suffered by the complainant.
10. In the light of the above settled law if the
facts of the present case are taken into
consideration admittedly there is breach of duty
on the part of the present applicants and due to
the breach of duty the deceased has lost her life
as well as other students sustained injuries. By
applying the law laid down by the Hon'ble Apex
Court in the case of State of Haryana and others
vs. Bhajanlal and others reported in 1992
Supp(1) Supreme Court Cases 335, wherein
parameters are laid down while considering the
6
application for quashing of the FIR wherein it is
stated as under:
“(a) 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 accused;.
(b) where the allegations in the First
information Report and other materials, if any,
accompanying the FI.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;
(c) 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;
(d) 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;
(e) 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;
(f) 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
7
concerned Act, providing efficacious redress
for the grievance of the aggrieved party,
(g) 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.”
11. After applying the said parameters to the
facts of the present case admittedly at this
stage, there is sufficient material to show that
there is breach of duty on the part of the present
applicants. It is not mere an accident, but it is
omission on the part of the present applicants
which shows that due care caution has not been
taken while constructing the said pillar. Though
there was no intention to cause death but
admittedly knowledge was there that sub
standard material while constructing the base
for installation of pillar may cause harm or
death to the person, Despite the same the sub
standard material was used.) Proper base was
not prepared while installing the said pillar
sufficiently shows that there was negligence on
the part of the present applicants and therefore
application deserves to be rejected.”
16. Being dissatisfied with the judgment and order
passed by the High Court, the appellants are here before
us with the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
17. Mr. Kuldeep Jauhari, the learned counsel appearing
for the appellants vehemently submitted that the High
Court committed a serious error in declining to quash the
criminal proceedings. He submitted that the facts
emerging from the papers of the chargesheet do not reveal
8
commission of the offence of culpable homicide not
amounting to murder punishable under Section 304
Part-II of the IPC.
18. Mr. Jauhari submitted that having regard to the role
attributed to the appellants herein, no offence of even a
rash or negligent act punishable under Section 304A is
made out. The learned counsel argued that the
appellants herein are sought to be prosecuted on the
ground that as responsible office bearers of the school no
due care was being taken while the pillar was being
constructed.
19. The learned counsel submitted that Section 304 IPC
has no application at all since even if the entire case of the
prosecution is accepted as true, there is no case of a
voluntary commission of offence against the present
appellants.
20. The learned counsel submitted that if Section 304
of the IPC is not applicable on the face of the case of the
prosecution, then Section 304-A would also not be
applicable against the appellants herein. He submitted
that under Section 304-A IPC, there is a causal chain
which consists of many links. It is only that which
contributes to the cause of all causes, namely, the
causa causans and not causa sine-qua-non , which fixes
the culpability. In other words, it is submitted that it is
not enough for the prosecution to show that the
appellants inaction or lack of duty to remain careful at
the time of construction was one of the causes of death.
9
It must show that it is the direct consequence, which in
the present case, has not been established even prima-
facie .
21. In such circumstances referred to above, the
learned counsel prayed that there being merit in his
appeal the same be allowed and the appellants herein
be discharged from the prosecution.
SUBMISSIONS ON BEHALF OF THE STATE
22. This appeal has been vehemently opposed by Mr.
Aaditya Aniruddha Pande, the learned counsel
appearing for the State. He submitted that no error, not
to speak of any error of law, could be said to have been
committed by the High Court in rejecting the quashing
application. He submitted that while deciding a
quashing application, the Court has only to consider a
prima facie case. The Court has not to consider whether
the evidence on record is sufficient to convict the
accused. The Court has to merely consider whether
there are suspicious circumstances against the
accused so as to frame a charge against him. He
submitted that it is not necessary for the Court to enter
into the pros and cons of the matter or into a weighing
and balancing of the evidence and probabilities, which
is really his function after the trial starts. He submitted
that a twelve-year-old girl studying in the school lost
her life in a shocking and regrettable manner.
10
23. It was argued that at least a case of rash and
negligent act punishable under Section 304A of the IPC
could be said to be made out and let the trial court
decide what offence the appellants could be said to have
committed.
24. In such circumstances referred to above, Mr. Pande
prayed that there being no merit in this appeal, the same
be dismissed.
ANALYSIS
25. Having heard the learned counsel appearing for the
parties and having gone through the materials on
record, the only question that falls for our consideration
is whether the High Court committed any error in
passing the impugned order.
26. We may highlight few facts emerging from the
materials on record, which are not in dispute.
(a) The appellant No. 1 is serving as the
President in the school
(b) The appellant No. 2 is serving as the
superintendent of the school.
27. The relevant portion of Section 304 of the IPC reads
as under:-
“Whoever commits culpable homicide not
amounting to murder shall be punished with ... and
11
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 … . 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."
28. A plain reading of the above Section makes it clear
that it is in two parts. The first part of the Section is
generally referred to as "Section 304 Part-I", whereas
the second part as "Section 304, Part-II". It would thus,
appear that if such bodily injury as is likely to cause
death is intentionally caused and results in the death
of the victim, the case would fall under Part-I and not
under Part-II. Stated differently, Part-II comes into play
when death is caused by doing an act with the
knowledge that it is likely to cause death and when such
act is the infliction of a bodily injury, the infliction must
not be intentional. A person who intentionally causes
the bodily injury with knowledge that such act is likely
to cause death must necessarily be a person who does
an act with the intent to cause bodily injury likely to
result in death.
29. The Makers of the Code observed:
"The most important consideration upon a trial for
this offence is the intention or knowledge with
which the act which caused death, was done. The
intention to cause death or the knowledge that
death will probably be caused, is essential and is
that to which the law principally looks. And it is of
12
the utmost importance that those who may be
entrusted with judicial powers should clearly
understand that no conviction ought to take place,
unless such intention or knowledge can from the
evidence be concluded to have really existed".
30. The Makers further stated:
"It may be asked how can the existence of the
requisite intention or knowledge be proved, seeing
that these are internal and invisible acts of the
mind? They can be ascertained only from external
and visible acts. Observation and experience
enable us to judge of the connection between men's
conduct and their intentions. We know that a sane
man does not usually commit certain acts
heedlessly or unintentionally and generally we
have no difficulty in inferring from his conduct what
was his real intention upon any given occasion".
31. We now look into Section 304A of the IPC and
compare it with Section 304 IPC.
32. Section 304A was inserted by the India Penal Code
(Amendment) Act, 1870 (Act XXVII of 1870) and reads thus:
“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.”
33. The section deals with homicidal death by rash or
negligent act. It does not create a new offence. It is
directed against the offences outside the range of
Sections 299 and 300, IPC respectively and covers
those cases where death has been caused without
13
'intention' or 'knowledge'. The words "not amounting to
culpable homicide" in the provision are significant and
clearly convey that the section seeks to embrace those
cases where there is neither intention to cause death,
nor knowledge that the act done will in all probability
result into death. It applies to acts which are rash or
negligent and are directly the cause of death of another
person.
34. Thus, there is a fine distinction between Section
304 and Section 304A. Section 304A carves out cases
where death is caused by doing a rash or negligent act
which does not amount to culpable homicide not
amounting to murder within the meaning of Section 299
or culpable homicide amounting to murder under
Section 300, IPC. In other words, Section 304A excludes
all the ingredients of Section 299 as also of Section 300.
Where intention or knowledge is the 'motivating force'
of the act complained of, Section 304A will have to make
room for the graver and more serious charge of culpable
homicide not amounting to murder or amounting to
murder as the facts disclose. The section has
application to those cases where there is neither
intention to cause death nor knowledge that the act in
all probability will cause death.
35. In Empress v. Idu Beg , (1881) ILR 3 All 776,
Straight, J. made the following pertinent observations
which have been quoted with approval by various
14
Courts including this Court:
"Criminal rashness is hazarding a dangerous or
wanton act with the knowledge that it is so, and
that it may cause injury, but without intention to
cause injury, or knowledge that it will probably be
caused. The criminality lies in running the risk of
doing such an act with recklessness or indifference
as to the consequences. Criminal negligence is the
gross and culpable neglect or failure to exercise
that reasonable and proper care and precaution to
guard against injury either to the public generally
or to an individual in particular, which, having
regard to all the circumstances out of which the
charge has arisen, it was the imperative duty of the
accused person to have adopted".
36. Though the term 'negligence' has not been defined
in the Code, it may be stated that negligence is the
omission to do something which a reasonable man,
guided upon those considerations which ordinarily
regulate the conduct of human affairs would do, or
doing something which a reasonable and prudent man
would not do. [ See Mahadev Prasad Kaushik Vs. State of
U.P - AIR 2009 SC 125].
37. In the aforesaid context, we may quote with profit
the decision of this Court in the case of Naresh Giri v.
State of M.P., reported in (2008) 1 SCC (Cri.) 324. In the
said case, a bus was going from Ahrauli towards
Kailaras. While it was near a Railway crossing, an
accident took place. A train hit the bus at the railway
crossing. In the accident, the bus which was being
15
driven by the appellant therein was badly damaged
and as a result of the accident, several passengers got
injured and two persons died. After completion of the
investigation, chargesheet was filed. The charges
were framed in relation to the offence punishable
under Section 302 IPC and alternatively, under
Sections 304, 325 and 323 of the Penal Code
respectively. Questioning the correctness of the
charges framed, the revision petition was filed. The
case of the appellant therein was that Section 302 IPC
had no application to the facts of the case. The High
Court rejected the plea of the appellant. The High Court
was of the view that on the basis of the material
available, the charges were rightly framed, and the
intention of the appellant therein could be gathered at
the time when the evidence would be adduced. It was
his case that at the best Section 304A IPC would be
attracted.
38. In the aforesaid background, this Court made
the following observations, which are worth taking note
of.
“7. Section 304-A IPC applies to cases where
there is no intention to cause death and no
knowledge that the act done, in all probabilities,
will cause death. This provision is directed at
offences outside the range of Sections 299 and 300
IPC. Section 304-A applies only to such acts which
are rash and negligent and are directly the cause
of death of another person. Negligence and
rashness are essential elements under Section
304-A.
16
8. Section 304-A carves out a specific offence
where death is caused by doing a rash or negligent
act and that act does not amount to culpable
homicide under Section 299 or murder under
Section 300. If a person wilfully drives a motor
vehicle into the midst of a crowd and thereby
causes death to some person, it will not be a case
of mere rash and negligent driving and the act will
amount to culpable homicide. Doing an act with the
intent to kill a person or knowledge that doing an
act was likely to cause a person's death is culpable
homicide. When the intent or knowledge is the
direct motivating force of the act, Section 304-A has
to make room for the graver and more serious
charge of culpable homicide. The provision of this
section is not limited to rash or negligent driving.
Any rash or negligent act whereby death of any
person is caused becomes punishable. Two
elements either of which or both of which may be
proved to establish the guilt of an accused are
rashness/negligence, a person may cause death
by a rash or negligent act which may have nothing
to do with driving at all. Negligence and rashness
to be punishable in terms of Section 304-A must be
attributable to a state of mind wherein the
criminality arises because of no error in judgment
but of a deliberation in the mind risking the crime
as well as the life of the person who may lose his
life as a result of the crime. Section 304-A discloses
that criminality may be that apart from any mens
rea, there may be no motive or intention still a
person may venture or practice such rashness or
negligence which may cause the death of other.
The death so caused is not the determining factor.
9. What constitutes negligence has been analysed
in Halsbury's Laws of England (4th Edition)
Volume 34 paragraph 1 (para 3) as follows :
"Negligence is a specific tort and in any given
circumstances is the failure to exercise that care
which the circumstances demand. What amounts
to negligence depends on the facts of each
17
particular case. It may consist in omitting to do
something which ought to be done or in doing
something which ought to be done either in a
different manner or not at all. Where there is no
duty to exercise care, negligence in the popular
sense has no legal consequence, where there is a
duty to exercise care, reasonable care must be
taken to avoid acts or omissions which can be
reasonably foreseen to be likely to cause physical
injury to persons or property. The degree of care
required in the particular case depends on the
surrounding circumstances, and may vary
according to the amount of the risk to be
encountered and to the magnitude of the
prospective injury. The duty of care is owed only to
those persons who are in the area of foreseeable
danger, the fact that the act of the defendant
violated his duty of care to a third person does not
enable the plaintiff who is also injured by the same
act to claim unless he is also within the area of
foreseeable danger. The same act or omission may
accordingly in some circumstances involve liability
as being negligent although in other circumstances
it will not do so. The material considerations are the
absence of care which is on the part of the
defendant owed to the plaintiff in the
circumstances of the case and damage suffered by
the plaintiff, together with a demonstrable relation
of cause and effect between the two".
10. In this context the following passage from
Kenny's Outlines of Criminal Law, 19th Edition
(1966) at page 38 may be usefully noted :
"Yet a man may bring about an event without
having adverted to it at all, he may not have
foreseen that his actions would have this
consequence and it will come to him as a
surprise. The event may be harmless or harmful, if
harmful, the question rises whether there is legal
liability for it. In tort, (at common law) this is
decided by considering whether or not a
reasonable man in the same circumstances would
have realised the prospect of harm and would
have stopped or changed his course so as to
18
avoid it. If a reasonable man would not, then
there is no liability and the harm must lie where
it falls. But if the reasonable man would have
avoided the harm, then there is liability and the
perpetrator of the harm is said to be guilty of
negligence. The word 'negligence' denotes, and
should be used only to denote, such
blameworthy inadvertence, and the man who
through his negligence has brought harm upon
another is under a legal obligation to make
reparation for it to the victim of the injury who
may sue him in tort for damages. But it should
now be recognized that at common law there is
no criminal liability for harm thus caused by
inadvertence. This has been laid down
authoritatively for manslaughter again and
again. There are only two states of mind which
constitute mens rea and they are intention and
recklessness. The difference between
recklessness and negligence is the difference
between advertence and inadvertence they are
opposed and it is a logical fallacy to suggest that
recklessness is a degree of negligence. The
common habit of lawyers to qualify the word
"negligence" with some moral epithet such as
'wicked' 'gross' or 'culpable' has been most
unfortunate since it has inevitably led to great
confusion of thought and of principle. It is equally
misleading to speak of criminal negligence since
this is merely to use an expression in order to
explain itself."
11. "Negligence", says the Restatement of the law
of Torts published by the American Law Institute
(1934) Vol. I. Section 28 "is conduct which falls
below the standard established for the protection
of others against unreasonable risk of harm". It is
stated in Law of Torts by Fleming at page 124
(Australian Publication 1957) that this standard of
conduct is ordinarily measured by what the
reasonable man of ordinary prudence would do
under the circumstances. In Director of Public
Prosecutions v. Camplin (1978) 2 All ER 168 it was
observed by Lord Diplock that "the reasonable
man" was comparatively late arrival in the laws of
19
provocation. As the law of negligence emerged in
the first half of the 19th century it became the
anthropomorphic embodiment of the standard of
care required by law. In order to objectify the law's
abstractions like "care" "reasonableness" or
"foreseeability" the man of ordinary prudence was
invented as a model of the standard of conduct to
which all men are required to conform.
12. In Syed Akbar v. State of Karnataka, (1980) 1
SCC 30, it was held that "where negligence is an
essential ingredient of the offence, the negligence
to be established by the prosecution must be
culpable or gross and not the negligence merely
based upon an error of judgment. As pointed out by
Lord Atkin in Andrews v. Director of Public
Prosecutions ((1937) (2) ( All ER 552) simple lack of
care such as will constitute civil liability, is not
enough; for liability under the criminal law a very
high degree of negligence is required to be proved.
Probably, of all the epithets that can be applied
'reckless' most nearly covers the case."
13. According to the dictionary meaning 'reckless'
means 'careless', 'regardless' or heedless of the
possible harmful consequences of one's acts'. It
presupposes that if thought was given to the matter
by the doer before the act was done, it would have
been apparent to him that there was a real risk of
its having the relevant harmful consequences; but,
granted this, recklessness covers a whole range of
states of mind from failing to give any thought at all
to whether or not there is any risk of those harmful
consequences, to recognizing the existence of the
risk and nevertheless deciding to ignore it. In R. v.
Briggs (1977) 1 All ER 475 it was observed that a
man is reckless in the sense required when he
carries out a deliberate act knowing that there is
some risk of damage resulting from the act but
nevertheless continues in the performance of that
act.
14. In R. v. Caldwell (1981) 1 All ER 961, it was
observed that :-
20
"Nevertheless, to decide whether someone has
been 'reckless', whether harmful consequences of
a particular kind will result from his act, as
distinguished from his actually intending such
harmful consequences to follow, does call for some
consideration of how the mind of the ordinary
prudent individual would have reacted to a similar
situation. If there were nothing in the
circumstances that ought to have drawn the
attention of an ordinary prudent individual to the
possibility of that kind of harmful consequence, the
accused would not be described as 'reckless' in the
natural meaning of that word for failing to address
his mind to the possibility; nor, if the risk of the
harmful consequences was so slight that the
ordinary prudent individual on due consideration
of the risk would not be deterred from treating it as
negligible, could the accused be described as
reckless in its ordinary sense, if, having considered
the risk, he decided to ignore it. (In this connection
the gravity of the possible harmful consequences
would be an important factor. To endanger life
must be one of the most grave). So, to this extent,
even if one ascribes to 'reckless' only the restricted
meaning adopted by the Court of Appeal in
Stephenson and Briggs, of foreseeing that a
particular kind of harm might happen and yet
going on to take the risk of it, it involves a test that
would be described in part as 'objective' in current
legal jargon. Questions of criminal liability are
seldom solved by simply asking whether the test is
subjective or objective."
15. The decision of R. v Caldwell (supra) has been
cited with approval in R v. Lawrence (1981) 1 All
ER 974 and it was observed that :
"........Recklessness on the part of the doer of an act
does presuppose that there is something in the
circumstances that would have drawn the attention
of an ordinary prudent individual to the possibility
that his act was capable of causing the kind of
serious harmful consequences that the section
which creates the offence was intended to
prevent, and that the risk of those harmful
21
consequences occurring was not so slight that an
ordinary prudent individual would feel justified in
treating them as negligible. It is only when this is
so that the doer of the act is acting 'recklessly' if,
before doing the act, he either fails to give any
thought to the possibility of there being any such
risk or, having recognized that there was such risk,
he nevertheless goes on to do it".
15A. Normally, as rightly observed by the High
Court charges can be altered at any stage
subsequent to the framing of charges. But the case
at hand is one where prima facie Section 302 IPC
has no application."
39. In the overall facts of the case, we have reached the
conclusion that the case on hand is not one of voluntary
commission of offence against a person. The
harmfulness inflicted intentionally or knowingly or
caused directly and wilfully would attract Section 304
IPC. We are of the view that the mere failure to attain the
standard of care prescribed by the law, thereby committing
breach of such duty as observed by the High Court would
not be a criminal act. The contractor to whom the work
was assigned could at the most be prima facie guilty of
negligence, being in the knowledge of the fact that poor
construction or inferior construction may lead to an accident or
a casualty. However, that by itself would not suggest that
the appellants had the knowledge that inferior
construction in all probability was likely to cause death
of any student studying in the school.
40. The above takes us to the question whether the
appellants herein should face the charge under Section
304A of the IPC or not.
22
41. In a prosecution for an offence under Section 304A
of the IPC, the Court has to examine whether the alleged
act of the accused is the direct result of a rash and
negligent act, and that act was the proximate and
efficient cause of the death without the intervention of
others' negligence. To put it in other words, whether the
mere fact that the appellants herein as the
Administrators of the school failed to take appropriate
care to ensure the safety of the students by not ensuring
proper construction of pillar by itself is sufficient to
establish an offence under Section 304A IPC. The
answer to this question will determine whether the
appellants act as alleged by the prosecution is the
causa causans or has there been a causa interveniens ,
which has broken the chain of causation so as to make
their act, though a negligent one, not the immediate
cause or whether it amounts to an act of gross
negligence or recklessly negligent conduct. In this
context, it may be observed that in a case of this nature,
the death of a young girl aged twelve however, shocking
and regrettable it may be, ought not to allow the mind
to boggle while considering the aforesaid question.
42. As to what is meant by causa causans , has been
explained by this Court in the case of Sushil Ansal v.
State through Central Bureau of Investigation , (2014)6
SCC 173, as under :
“As to what is meant by causa causans we may
gainfully refer to Black’s Law Dictionary (Fifth
Edition) which defines that expression as under:
“Causa causans. - The immediate cause; the
23
last link in the chain of causation.”
The Advance Law Lexicon edited by Justice
Chandrachud, former Chief Justice of India defines
Causa causans as follows:
“Causa causans. - The immediate cause as
opposed to a remote cause; the ‘last link in the
chain of causation’; the real effective cause of
damage”
The expression “proximate cause” is defined in the
5th Edition of Black’s Law Dictionary as under:
“Proximate cause. - 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. Wisniewski vs. Great Atlantic &
Pacific Tea Company, 226 Pa. Super 574 :
323 A2d 744 (1974), A2d at p. 748. That
which is nearest in the order of responsible
causation. That which stands next in
causation to the effect, not necessarily in time
or space but in causal relation. The proximate
cause of an injury is the primary or moving
cause, or that which in a natural and
continuous sequence, unbroken by any
efficient intervening cause, produces the
injury and without which the accident could
not have happened, if the injury be one which
might be reasonably anticipated or foreseen
as a natural consequence of the wrongful act.
An injury or damage is proximately caused by
an act, or a failure to act, whenever it appears
from the evidence in the case, that the act or
omission played a substantial part in bringing
about or actually causing the injury or
damage; and that the injury or damage was
either a dire ct result or a reasonably probable
consequence of the act or omission.”
43. We may also refer to the earlier decision of this Court
in Kurban Hussein Mohamedalli Rangawalla v. State of
24
Maharashtra , AIR 1965 S.C. 1616. On the interpretation
of Section 304-A, holding:
“4. We may in this connection refer to Experor
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 Section
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 causa
causans; it is not enough that it may have
been the causa 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.”
44. In our view, having regard to the materials on
record, the incident in this case cannot be treated as a
direct and proximate cause of the negligence, even if we
assume one on the part of the appellants in not taking
25
due care. Many other factors might have resulted in the
unfortunate incident. It was the contractor and his
team who were actually undertaking the construction.
If little care would have been taken by the contractor to
ensure due safety of the students then probably this
incident would not have occurred. Therefore, the
alleged negligence from the part of the appellants herein
cannot be regarded as the causa causans . Although it
may be a causa sine qua non.
45. It must be pointed out that rashness and negligence
are not the same things. Mere negligence cannot be
construed to mean rashness. There are degrees of
negligence and rashness and in order to amount to
criminal rashness or criminal negligence one must find
that the rashness has been of such a degree as to
amount to taking hazard knowing that the hazard was
of such a degree that injury was most likely to be
occasioned thereby. The criminality lies in running the
risk or doing such an act with recklessness and
indifference to the consequences. Criminal negligence
is gross and culpable neglect, that is to say, a failure to
exercise that care and failure to take that precaution
which, having regard to the circumstances, it was the
imperative duty of the individual to take. Culpable
rashness is acting with consciousness that
mischievous consequences are likely to follow although
the individual hopes, even though he hopes sincerely,
that such consequences may not follow. The criminality
lies in not taking the precautions to prevent the
26
happening of the consequences in the hope that they
may not happen. The law, in our view, does not permit
a man to be un-cautious on a hope however earnest or
honest that hope may be.
46. In the case of - 'A. W. Lazarus v. The State' , AIR 1953
All 72 (A), a Bench of the Allahabad High Court held,
following the decisions in - 'Empress of India v. Idu Beg' ,
3 All 776 (B) and - ' H.W. Smith v. Emperor ', AIR 1926
Cal 300 (C), that criminal rashness means hazarding a
dangerous or wanton act with the knowledge that it is
dangerous or wanton and the further knowledge that it
may cause injury but done without any intention to
cause injury or knowledge that it would probably be
caused. It was pointed out that the criminality in such
a case lay in running the risk of doing such an act with
recklessness or indifference as to the consequences.
The Bench further held that the criminal negligence
under Section 304-A, I.P.C. was gross and culpable
neglect of failure to exercise that reasonable and proper
care and to take precautions to guard against injury
either to the public generally or to an individual in
particular, which, having regard to all the
circumstances attending the charge, it was the
imperative duty of the accused person to have adopted.
Another important element which goes to make the
offence is that the act of the accused must be found to
be the immediate cause of the death, that is to say, the
act and the death must be 'causa causans' .
27
47. We may here refer to a very instructive judgment of
the House of Lords in - 'Andrews v. Director of Public
Prosecutions', 1937-2 All ER 552 (D). In this case Lord
Atkin reviewed several of the earlier cases and delivered
the leading opinion of the House. Lord Atkin pointed cut
that the connotations of 'mens rea' are not helpful in
distinguishing between degrees of negligence, nor do
the ideas of crimes and punishments in themselves
carry a jury much further in deciding whether, in a
particular case, the degree of negligence shown is a
crime and deserves punishment. According to Lord
Atkin, "the principle to be observed is that cases of
manslaughter in driving motor cars are but instances
of a general rule applicable to all charges of homicide
by negligence. Simple lack of care such as will
constitute civil liability is not enough. For purposes of
the criminal law there are degrees of negligence, and a
very high degree of negligence is required to be proved
before the felony is established."
48. Lord Atkin observed that the most appropriate
epithet which can be applied to such cases is "reckless".
He further pointed out that "it is difficult to visualize a
case of death caused by "reckless" driving, in the
connotation of that term in ordinary speech, which
would not justify a conviction for manslaughter, but it
is probably not all-embracing, for "reckless" suggests
an indifference to risk, whereas the accused may have
appreciated the risk, and intended to avoid it, and yet
shown in the means adopted to avoid the risk such a
28
high degree of negligence as would justify a conviction."
49. In an earlier case Lord Ellenborough had pointed
out that to substantiate the charge of manslaughter the
prisoner must be found to have been guilty of criminal
misconduct arising either from the grossest ignorance
or the most criminal inattention. Lord Atkin explained
this observation of Lord Ellenborough in these words :
"The word "criminal" in any attempt to define a
crime is perhaps not the most helpful, but it is plain
that Lord Ellenborough meant to indicate to the jury
a high degree of negligence."
50. Attention was also drawn by Lord Atkin to a
passage in a considered judgment of Lord Hewart, Lord
Chief Justice the passage to which attention was drawn
was this:
"In a criminal Court, on the contrary, the amount
and degree of negligence are the determining
questions. There must be 'mens rea'."
But, as was pointed out by Lord Atkin, the connotation
of mens rea do not always prove helpful in determining
the guilt of an accused in a particular case.
51. The essence of criminal liability under Section 304-
A IPC is culpable rashness or negligence and not any
rashness or negligence. The difference between the two
is what marks off a civil from a criminal liability. The
distinction is often an intricate matter and depends on
the particular time, place and circumstances. In civil
29
law negligence means inadvertence, which, if it resulted
in injurious consequences to person or property, may
involve liability to compensate for the damage. In
Halsbury's Laws of England, 3rd Edn. Vol. 28,
paragraph 1, it is stated :
''Negligence is a specific tort and in any given
circumstances is the failure to exercise that care
with which the circumstances demand. What
amounts to negligence depends on the facts of each
particular case and the categories of negligence are
never closed. It may consist in omitting to do
something which ought to be done or in doing
something which ought to be done, either in a
different manner or not at all. Where there is no duty
to exercise care, negligence in the popular sense
has no legal consequence. Where there is a duty to
exercise care, reasonable care must be taken to
avoid acts or omissions which can be reasonably
foreseen to be likely to cause physical injury to
persons or property. The degree of care required in
the particular case depends on the accompanying
circumstances, and may vary according to the
amount of the risk to be encountered and to the
magnitude of the prospective injury."
52. The consequence flows from a state of mind which
is blank or devoid of any advertence, and the liability for
such consequence is to be judged from the standpoint
of reasonable foreseeability and the failure to exercise
the care which such foreseeability necessarily implies.
That we conceive to be the principle of tortious liability
for negligence. Kenny in his "Outlines of Criminal Law''
at page 29 observes,
"But if the reasonable man would have avoided the
harm then there is liability and the perpetrator of
the harm is said to be guilty of negligence. The
30
word 'negligence', therefore, in our jurisprudence is
used to denote blameworthy inadvertence, and the
man who through his negligence has brought harm
upon another is under a legal obligation to make
reparation for it to the victim of the injury, who may
sue him in tort for damages. But it should now be
recognised that at common law there is no criminal
liability for harm thus caused by
inadvertence.................The truth may be that he
did not foresee the consequences as a reasonable
man would have done, and that he was negligent
in the true sense of the word, and therefore civilly,
although not criminally, liable."
53. Kenny further points out that for criminal liability
for negligence, there must be something more than
such blameworthy inadvertence. This aspect is also
adverted to in paragraph 1374 of Halsbury's Laws of
England, 3rd Edn. Volume 10,
"A higher degree of negligence is necessary to
render a person guilty of manslaughter than to
establish civil liability against him. Mere
carelessness is not enough. Negligence in order to
render a person guilty of manslaughter must be
more than a matter of compensation between
subjects; it must show such disregard for the life
and safety of others as to amount to a crime
against the State. Whether negligence is to be
regarded as of such a nature is a question for the
jury, after they have been properly directed by the
Judge as to the standard to be applied, and
depends on the facts of the particular case. The
number of persons affected by a single act of
negligence does not affect the decree of
negligence."
54. While on this aspect, it is also instructive to refer to
Rex v. Williamson , 1807-3 C and P 635, a case where a
31
man who practised as an accoucheur, owing to a mistake
in his observation of the actual symptoms, inflicted on a
patient terrible injuries from which she died. After
pointing out that in a civil case once negligence was
proved, the degree of negligence was irrelevant, Lord
Ellenborough, the Lord Chief Justice, said.
"In a criminal court, on the contrary, the amount
and degree of negligence are the determining
questions. There must be mens rea. In explaining
to juries the test which they should apply to
determine whether the negligence in a particular
case, amounted or did not amount to a crime,
Judges have used epithets such as 'culpable',
'criminal', 'gross', 'wicked', 'clear', 'complete'. But
whatever epithet be used and whether an epithet
be used or not, in order to establish criminal liability
the facts must be such that, in the opinion of the
jury, the negligence of the accused went beyond a
mere matter of compensation between subjects
and showed such disregard for the life and safety
of others, as to amount to a crime against the State
and conduct deserving punishment."
55. Mere negligence or rashness is, therefore, not
enough to bring a case within the ambit of Section 304A
IPC. Negligence or rashness proved by evidence must
be such as should necessarily carry with it a criminal
liability. Whether such liability is present may depend
on the degree of culpability having regard in each case
to the particular time, place and circumstances. If it is
merely a case of compensation or reparation for injury
or damage caused to a person or property, it is clearly
not punishable under the said Section. The culpability
to be criminal should be such as concerns not merely
the person injured or property damaged but the safety
32
of the public on the road. But the nature and extent of
the injury or damage will be irrelevant in fixing criminal
liability for negligence under the sections.
56. We may quote with profit the case of Ambalal D.
Bhatt v. State of Gujarat , reported in (1972) 3 SCC 525,
wherein the following observations made by this Court
are worth taking note of.
“8. The learned Advocate contends that even if
one batch number was given to several lots
prepared on 12-11-62 as was done in respect of
batch no 211105, the evidence discloses that this
was not an isolated case but such practice was
uniformly followed in S. C. L. Ltd. for which the
appellant could not alone be held liable. In the
circumstances the non-compliance with the rules
for giving a batch number to every lot does not
make the act of the appellant the causa causans of
the death of the persons who were injected with
glucose saline prepared by him because it was
not only the duty of the Analyst Prabhakaran to
test the material before they are issued to the
injection department but also to test the solution in
such a way as would trace lead nitrate in the
sodium chloride content of the solution. As
Prabhakaran had not applied the proper test and
that too knowing fully well that several lots were
given one batch number, he cannot be absolved
of his responsibility to take representative samples
for testing them instead of testing only one bottle
out of 450 bottles comprising batch no. 211105. On
this premise it is contended that though section
304A covers various fields of activity, an offence
is committed only if a person charged is shown to
have neglected to take such action as he is
reasonably expected to take to avoid injury to
others and that such reasonable steps that are
expected to be taken by him should show that
there was a failure to take such elementary steps
it was necessary for him to take. Inasmuch as in
33
all cases under section 304A there is a casual
chain which consists of many links, it is only that
which contributes to the cause of all causes,
namely, the causa causans and not causa sine
qua non which fixes the capability. In other words,
it is submitted that it is not enough for the
prosecution to show that the appellant's action was
one of the causes of death. It must show that it is
the direct consequence, which in this case has not
been established. On the other hand, according to
the learned Advocate the appellant is separated by
two important steps which intervene before the
glucose saline is sold for being administered to the
needy. These are :
(1)
that not only should the materials be tested
but the solution should be tested properly to
detect the dangerous components of the
preparation which was the duty of the Chief
Analyst; and
(2) that the production report and the analysis
report have to be seen by the Production
Superintendent who is to satisfy himself that
proper tests have been carried out before
certifying them for sale. The persons who are
directly responsible for the saline solution to be
certified for sale are the Chief Analyst as well as
the Production Superintendent and not the
appellant.
9. It is, however, the case of respondent State that
had the appellant not given a single batch number
to all the four lots when he prepared the offending
glucose saline, the analysis by the Chief Analyst
would analysis by the Chief Analyst would have
certainly discovered the heavy deposits of lead
nitrate in the sodium chloride and the lot which
contained this would have been rejected. As the
appellant has been negligent in conforming to the
rules, the deaths were the direct consequence of
that negligence.
34
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 Act and the
Rules would itself 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
appellant's 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
Mohem-medali Rangwala v. State of Maharashtra,
1965-2 SCR 622 = (AIR 1965 SC 1616), 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 Suleman Rahiman Mulani v. State
of Maharashtra (1968) 2 SCR 515 = (AIR 1968 SC
829) the accused who was driving a car only with
35
a learner's licence without a trainer by his side,
had injured a person. It was held that by itself was
no sufficient to warrant a conviction under section
304A. It would be different if it can be established
as in the case of Balachandra v. State of
Maharashtra, (1968) 3 SCR 766 = (AIR 1968 SC
1319) that deaths and injuries caused by the
contravention of a prohibition in respect of the
substance 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.
11. Bearing these principles in view, what we
have to see is :
(1) whether there was contravention of the rule? If
so, to what extent that contravention by the
appellant contributed to the non-discovery of lead
nitrate in sodium chloride content of the glucose
saline in Batch No. 211105? (2) Whether sodium
chloride for which the said solution was prepared
was obtained by the appellant from sources other
than the Stores of S. C. I. Ltd.? and (3) Whether the
method adopted in testing the said batch by
Prabhakaran would have, but for the contravention
of the rules requiring the giving of one batch
number to each lot, detected the presence of lead
nitrate when he analysed samples of the
offending batch of glucose saline prepared by the
accused. The answers to these questions will
determine whether the appellant's act is the causa
causans or has there been a cause interveniens
which has broken the chain of causation so as
to make his act, though a negligent one, not the
immediate cause or whether it amounts to an act
of gross negligence or recklessly negligent
conduct. In this context it may be observed that
in a case of this nature where as many as 12
persons lost their lives as a result of the
parenteral administration of the drug comprised
in Batch No. 211105 prepared by the appellant,
36
those deaths however shocking and regrettable
they may be, ought not to allow the mind to boggle
while appreciating the evidence which must
necessarily be free from any such consideration."
(emphasis supplied)
57. We may also quote with profit a decision of this Court
in the case of Balwant Singh v. State of Punjab , reported
in 1994 Supp (2) SCC 67. The following observations of
this Court are worth taking note of.
"8. Then the question would be whether an
offence under Sec. 304-A, I.P.C, is made out? The
provisions of this Section apply to cases where
there is no intention to cause death and no
knowledge that the act done in all probabilities will
cause death. Therefore, this provision is directed at
offences outside the range of Ss. 299 and 300,
I.P.C. and obviously contemplates those cases
into which neither intention nor knowledge enters.
The words "not amounting to culpable homicide" in
the Section are very significant and it must
therefore be understood that intentionally or
knowingly inflicted violence directly and wilfully
caused is excluded. The Section applies only to
such acts which are rash or negligent and are
directly the cause of death of another person. In
other words, a rash act is primarily an over hasty
act as opposed to a deliberate act but done without
due care and caution. Then the question whether
the conduct of the accused amounted to culpable
rashness or negligence depends on the amount of
care and circumspection which a prudent and
reasonable man would consider it to be sufficient
and this depends on the circumstances in each
case."
(emphasis supplied)
58. In the case of Dr. P.B Desai v. State of Maharashtra
and anr., reported in AIR 2014 SC 795, this Court has
explained in details as to when criminal liability would
37
be attracted in cases of medical negligence. It is no
doubt true that this Court was dealing with an issue
whether the role of the appellant as a doctor in that case
amounted to a rash or a negligent act as to endanger
the life of the patient. This Court made the following
observations:-
"(4) Breach of Duty to Take Care: Consequences
42. If the patient has suffered because of
negligent act/ omission of the doctor, it
undoubtedly gives right to the patient to sue the
doctor for damages. This would be a civil liability
of the doctor under the law tort and/or contract.
This concept of negligence as a tort is explained in
Jacob Mathews v. State of Punjab and Another
2005(6) SCC1, in the following manner:
“10. The jurisprudential concept of negligence
defines any precise definition. Eminent jurists
and leading judgments have assigned various
meanings to negligence. The concept as has been
acceptable to Indian jurisprudential thought is
well stated in the Law of Torts, Ratanlal &
Dhirajlal (24th Edn., 2002, edited by Justice G.P.
Singh).
Negligence is the breach of a duty caused by the
omission to do something which a reasonable
man, guided by those considerations which
ordinarily regulate the conduct of human affairs
would do, or doing something which a prudent
and reasonable man would not do. Actionable
negligence consists in the neglect of the use of
ordinary care or skill towards a person to whom
the defendant owes the duty of observing
ordinary care and skill, by which neglect the
plaintiff has suffered injury to his person or
property…. The definition involves three
constituents of negligence: (1) A legal duty to
exercise due care on the part of the party
complained of towards the party complaining the
38
former’s conduct within the scope of the duty; (2)
breach of the said; and (3) consequential
damage. Cause of -action for negligence arises
only when damage occurs; for, damage is a
necessary ingredient of this tort.”
43. Such a negligent act, normally a tort, may
also give rise to criminal liability as well, though it
was made clear by this Court in Jacob’s Case
(supra) that jurisprudentially the distinction has to
be drawn between negligence under Civil Law and
negligence under Criminal Law. This distinction is
lucidly explained in Jacob’s Case, as can be seen
from the following paragraphs:
“12. The term “negligence” is used for the purpose
of fastening the defendant with liability under the
civil law and, at times, under the criminal law. It is
contended on behalf of the respondents that in both
the jurisdictions, negligence is negligence, and
jurisprudentially no distinction can be drawn
between negligence under civil law and negligence
under criminal law. The submission so made
cannot be countenanced inasmuch as it is based
upon a total departure from the established terrain
of thought running ever since the beginning of the
emergence of the concept of negligence up to the
modern times. Generally speaking, it is the amount
of damages incurred which is determinative of the
extent of liability in tort; but in criminal law it is not
the amount of damages but the amount and degree
of negligence that is determinative of liability. To
fasten liability in criminal law, the degree of
negligence has to be higher than that of negligence
enough to fasten liability for damages in civil law.
The essential ingredient of mens rea cannot be
excluded from consideration when the charge in a
criminal court consists of criminal negligence. In R.
v. Lawrence Lord Diplock spoke in a Bench of five
and the other Law Lords agreed with him. He
reiterated his opinion in R. v. Caldwell3 and dealt
with the concept of recklessness as constituting
mens rea in criminal law. His Lordship warned
against adopting the simplistic approach of treating
all problems of criminal liability as soluble by
39
classifying the test of liability as being “subjective” or
“objective”, and said: (All ER p. 982e-f) “Recklessness
on the part of the doer of an act does presuppose that
there is something in the circumstances that would
have drawn the attention of an ordinary prudent
individual to the possibility that his act was capable
of causing the kind of serious harmful consequences
that the section which creates the offence was
intended to prevent, and that the risk of those
harmful consequences occurring was not so slight
that an ordinary prudent individual would feel
justified in treating them as negligible. It is only when
this is so that the doer of the act is acting ‘recklessly’
if, before doing the act, he either fails to give any
thought to the possibility of there being any such risk
or, having recognised that there was such risk, he
nevertheless goes on to do it.”
13.
The moral culpability of recklessness is not
located in a desire to cause harm. It resides in the
proximity of the reckless state of mind to the state
of mind present when there is an intention to cause
harm. There is, in other words, a disregard for the
possible consequences. The consequences entailed
in the risk may not be wanted, and indeed the
actor may hope that they do not occur, but this
hope nevertheless fails to inhibit the taking of the
risk. Certain types of violation, called optimising
violations, -- may be motivated by thrill-seeking.
These are clearly reckless.
14. In order to hold the existence of criminal
rashness or criminal negligence it shall have to be
found out that the rashness was of such a degree
as to amount to taking a hazard knowing that the
hazard was of such a degree that injury was most
likely imminent. The element of criminality is
introduced by the accused having run the risk of
doing such an act with recklessness and
indifference to the consequences. Lord Atkin in his
speech in Andrews v. Director of Public
Prosecutions stated: (All ER p. 556 C)
“Simple lack of care such as will constitute civil
liability is not enough. For purposes of the criminal
40
law there are degrees of negligence, and a very
high degree of negligence is required to be proved
before the felony is established.”
Thus, a clear distinction exists between “simple
lack of care” incurring civil liability and “very high
degree of negligence” which is required in criminal
cases. In Riddell v. Reid4a (AC at p. 31) Lord Porter
said in his speech —
“A higher degree of negligence has always been
demanded in order to establish a criminal offence
than is sufficient to create civil liability.”
15. The fore-quoted statement of law in Andrews
has been noted with approval by this Court in Syad
Akbar v. State of Karnataka. The Supreme Court
has dealt with and pointed out with reasons the
distinction between negligence in civil law and in
criminal law. Their Lordships have opined that
there is a marked difference as to the effect of
evidence viz. the proof, in civil and criminal
proceedings. In civil proceedings, a mere
preponderance of probability is sufficient, and the -
- defendant is not necessarily entitled to the benefit
of every reasonable doubt; but in criminal
proceedings, the persuasion of guilt must amount to
such a moral certainty as convinces the mind of the
Court, as a reasonable man, beyond all reasonable
doubt. Where negligence is an essential ingredient
of the offence, the negligence to be established by
the prosecution must be culpable or gross and not
the negligence merely based upon an error of
judgment.”
xxx xxx xxx
44.
Thus, in the civil context while we consider the
moral implications of negligent conduct, a clear
view of the state of mind of the negligent doctor
might not require strictly. This is for the reason the
law of tort is ultimately not concerned with the
moral culpability of the defendant, even if the
language of fault is used in determining the
standard of care. From the point of view of civil law
41
it may be appropriate to impose liability
irrespective of moral blameworthiness. This is
because in civil law two questions are at issue:
Was the defendant negligent? If so, should the
defendant bear the loss in this particular set of
circumstances? In most cases where negligence
has been established, the answer to the second
question will be in the affirmative, unless the
doctrine of remoteness or lack of foresee ability
militates against a finding of liability, or where
there is some policy reason precluding
compensation. The question in the civil context is,
therefore, not about moral blame, even though
there will be many cases where the civilly liable
defendant is also morally culpable.
(5) Criminal Liability : When attracted
45. It follows from the above that as far as the
sphere of criminal liability is concerned, as mens
rea is not abandoned, the subjective state of mind
of the accused lingers a critical consideration. In
the context of criminal law, the basic question is
quite different. Here the question is: Does the
accused deserve to be punished for the outcome
caused by his negligence? This is a very different
question from the civil context and must be
answered in terms of mens rea. Only if a person
has acted in a morally culpable fashion can this
question be answered positively, at least as far as
non-strict liability offenses are concerned.
46. The only state of mind which is deserving of
punishment is that which demonstrates an
intention to cause harm to others, or where there is
a deliberate willingness to subject others to the risk
of harm. Negligent conduct does not entail an
intention to cause harm but only involves a
deliberate act subjecting another to the risk of harm
where the actor is aware of the existence of the risk
and, nonetheless, proceeds in the face of the risk.
This, however, is the classic definition of
recklessness, which is conceptually different from
negligence and which is widely accepted as being a
basis for criminal liability.”
42
59. For all the foregoing reasons, we are of the view
that so far as the appellants are concerned, they stand
on a different footing as compared to the other accused
if any. In our view, the appellants should not be asked
to face the trial either for the offence of a rash or a
negligent act punishable under Section 304A of the IPC
or Section 304 IPC. At the most, the person who could
be said to be prima facie responsible for the unfortunate
death of the student is the contractor. This observation,
of course, is prima-facie and subject to the evidence that
may be led at the time of the trial if at all contractor is
also one of the accused.
60. However, the act attributed to the appellants
cannot be said to be the causa causans , but there was a
cause interveniens, which broke the chain of causation
so as to make the act of the applicant though a
negligent one, not the immediate cause.
61. Dictating this order was a very painful experience.
The very thought of a twelve-year-old girl getting
crushed beneath the pillar of her own school makes our
heart bleed with pain and agony. We can also imagine
the pain and agony the parents of the deceased must
be undergoing even as on today. However, such
thoughts should not allow the mind of a judge to get
boggled, otherwise justice cannot be done. However,
harsh one may find the law, but at the same time, the
law remains the law, and it has got to be respected.
43
62. In the result, this appeal is allowed. The criminal
proceedings arising from Chargesheet No. 15 of 2020
are hereby quashed so far as appellants are concerned.
63. The trial may proceed further against any other co-
accused, in accordance with law.
….…………………J
(J.B. PARDIWALA)
…….………………J
(MANMOHAN)
NEW DELHI
ND
02 NOVEMBER, 2026.
44