CHEMELIA Vs. ROOP CHAND MALIK

JUDGEMENT

(1.) One Mehango who got down at Mirzapur from Varanasi Allahabad Passenger train at platform No.2 on 29.5.1977 at 6.25 A.M. and was crossing the railway line got crushed by the Vikramshilla Express train, which approached, and died. The complainant, curiously enough, prosecuted all possible staff of the Station as well as driver. In the array of accused there were Station Master, Assistant Station Master, Traffic Inspector (Safety), Divisional Engineer, Assistant Engineer, Inspector of Works and the driver. The Magistrate, curiously enough, convicted all of them without considering what was the specific act of the negligence on the part of each individual Railway employees involved which was a must. Just to illustrate, if overhead bridge was closed and the station staff had not provided any specified route for crossing the platform and had not given such notice how could poor driver know of it. There was no caution given by the Station staff to slow down the train and the driver could not have any intuition to slow down the train. Even at the Station a high speed, as mentioned in the judgment of the appellate court, is provided for Vikram Sheela Express, there is no evidence that the train was being driven with a still higher speed. The appellate court rightly observed that the Magistrate has recorded a conviction by broke of pen without exercising his mind and scrutinising the matter.

(2.) The law is to be applied to facts of the case. Mahangoo crossed the railway line accompanied by one Smt. Phulwa P. W. 3. Smt. Phulwa in her cross-examination first deposed that as soon as Mahangoo got down from the platform he was crushed under the train. She then stated that Mahangoo had kept one bundle across the Railway track and while he was again coming back to the platform to take that across the railway line he was crushed by the train. This fact cannot be lost sight of Two pronouncements of the Supreme Court have been cited by the appellate court in its judgments. The first case is of A. D. Bhatt v. State of Gujarat. It was held in that case that the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death is not sufficient unless it was the result of rash or negligent act or that any such act was the proximate and efficient cause of the death. The observation was concerning offence under Section 304A. In the other case Rang Wala v. State of Maharashtra it was expressly observed that death must be the direct result of rash or negligent act of the accused and the act must be the efficient cause without intervention of another's negligence.

(3.) Learned counsel for the revisionist tried to distinguish these rulings by submitting that while in Section 304A the expression used is rash and negligent act, in Section 101 of the Indian Railway Act there is an additional word, namely, the expression omission as well. So these rulings will not apply. So far as these pronouncements are concerned, the case of Rang wala will hold good for omission as well. It is settled law that the ratio of the ruling is important though facts may not be identical. Ratio of the Supreme Court rulings are that notwithstanding any rash or negligent act to which I may add the word omission as well, if the other side with its eyes open was also negligent and by his own negligence invited the calamity then the person who acted rashly or negligently or made any omission cannot be held to be criminally liable. It was urged that in Section 101 there are number of provisions, guidance and rules which were not observed and so or penal liability can be fastened. I have considered that argument and I do not agree with such submission. The crux of the matter is whether the victim was equally negligent and he himself invited the calamity. If the Station authorities do not observe rules as to give any notice in case of closure of over- head bridge concerning the route to be adopted it would not mean that the running of the entire traffic should be stopped nor it would give a licence to the persons to cross railway line when a fast train like Vikramshilla Express is approaching. One has to himself be on the guard. Where was the hurry in crossing the railway line when Vikramshilla Express was approaching. In fact, I have referred to the evidence of P.W. 3 and but for the fact that the victim again went to bring luggage put across the railway line the accident may not have necessarily taken place.