KUDAL, J - (1.) M/s. Shriram Fertilizers & Chemicals, Kota gave a contract to M/s. Kota Refractories, Kota for repairing the boiler. At about 2. 30 p. m. on 19th February 1977, Iqbal Mohd. entered the boiler to repair refractories around the main hole, but he suddenly fell unconscious and could not even cry out. This was also noticed by the Contractor G. D. Patel, who- immediately instructed his workers to help Iqbal Mohd. Hira had put his head inside the main hole to pull out the unconscious worker Iqbal Mohd. but he himself became unconscious and was removed by another worker named Bhola Ram, but Bhola Ram also became unconscious when he put his head inside the main hole pull out the unconscious workers. Iqbal Mohd. was removed to the hospital where he was declared dead. After investigation the police registered a case under sec. 304-A, IPC against Shri B. S. Garud, Shri S. K. Agarwal,shri S. P. Jolly, Shri Harbinder Singh, Shri S. S. Bhargava and S. M. Sibbal. The accused-petitioners moved an application under sec. 258, Cr. P. C. before the learned trial Magistrate who rejected the same on 4th March, 1978. . The contention of the accused-petitioner is that there is absolutely no case against them and that taking the prosecution evidence at its best, no case under sec. 304-A, IPC is made out. Under such circumstances, it is contended that the prosecution of the present nature under sec. 304-A, IPC amounts to an abuse of the process of the Court and that this Court should invoke its inherent powers in quashing the proceedings which have been initiated against the accused-petitioners, in which there is no legal evidence against them. Two petitions under sec. 482, Cr. P. C, 1973 have been filed before this Court. S. B. Criminal Misc. Application No. 46 of 1978 is on behalf of Dr. B. S. Garud and Shri S. M. Sibbal, while the Criminal Misc. Application No. 48 of 1978, is on behalf of Shri S. B. Bhargava, Shri S. K. Agarwal, Shri S. P. Jolly and. Shri Harbinder Singh.
(2.) AS these two petitions arise out of the same incident and as the facts and points of law involved in the case are common, they are being disposed of by this single order. It was contended on behalf of the accused-petitioners that the contract for Rs. 15,000/- was given to the Kota Refractories, Kota to carry out the repairs of primary reformer, H. P. boiler and connected pipelines, refractories line etc. on 11th February, 1977. The terms and conditions on which the contract was given were also embodied therein. Clause (9) of the terms and conditions related to accident, which reads as under - "you will be solely responsible for any accident in which you or your men or your equipment may be involved during the execution of contract, on account of any reasons whatsoever. It will be obligatory on your part, to have those of your employees covered by the ESI 1948, insured against risk under the Workmen Compensation Act, 1923 etc. You will also ensure in order to avoid accident that your men come to work in tight fitting cloths where it may be necessary and they are provided with requisite safety equipment. " It has been contended on behalf of the accused-petitioners that the plant was shut down on 11th February, 1977. Before opening any equipment in the reformer area the whole system even primary reformer, secondary reformer and waste heat boiler was purged for four hours with air after opening the main holes of the waste heat boiler on 12th February, 1977. The gas sample was tested and was found to be normal, i. e. not containing any dangerous fume. It was further contended that the work of the boiler lasted for a few days. It is said that on the evening of 18th February, 1977, Shri S. M. Sibbal, Additional Production Manager, personally entered into the waste heat boiler from the main hole on the northern side, and remained inside for about three hours. Thereafter, also he is reported to have entered into the boiler once or twice. It was also contended that the primary reformer, secondary reformer and waste heat boiler is a combined unit and can be purged only together and not separa-tely. It was also contended that on 12th February, 1977, the heat boiler was cooled after opening both the main holes and the gases which were present in the boiler on 13th February, 1977 were tested. The test did not indicate the presence of carbon monoxite or any other poisonous gas. It was also contended that Dr. B. S. Garud and Shri S. M. Sibbal were not even present at the time of the occurrence. Dr. Garud is said to be at Bombay on that day. On behalf of the accused-petitioners, it has been contended that if they are guilty of any contravention of the provisions of the Factory Act and the rules made thereunder, or the Indian Boiler Act and the rules made thereunder, they would be liable for the same, and the prosecution has already been launched against them. It was also strenuously contended that merely because there has been some alleged contravention of the provisions of the Factory Act or the Indian Boiler Act or the rules framed under these Acts, a case under Section 304-A, IPC cannot be sustained. It was also contended that in order to sustain a case under Section 304-A, IPC, the prosecution has to establish that the actions of the accused persons were the case of the death of Iqbal Mohd. It was also contended that the prosecution must establish causa causans, and not causa sine qua non. It was also contended that the post-mortem report of Iqbal Mohd stated the cause of death due to asphyxia due to asphyxiant gas. Doubtful of carbon monoxide poisoning. Definite opinion can be given after receipt of chemical examination report. It was further contended that the Chemical Examiner's report dated 23rd June, 1977 was not produced by the prosecution till the orders of this Court dated 7th Nove. , 1978. The Chemical Examiner's report states that all the four blood samples under items C, D, E & F are negative for carbon monoxide. It further states that A to F are negative for arsenic, antimony, mercury, opium, dhatura barbiturates and ammonia. It was further contended on behalf of the accused-petitioners that the statement of the prosecution witnesses under Section 161, Cr. P. C. may be taken on its face value, then too no cause under Section 304-A IPC is made out. It was, therefore, contended that the prosecution under Section 304-A, IPC is wholly uncalled for and amounts to abuse of the process of the Court and deserves to be quashed in the interests of justice. On behalf of the prosecution, it has been contended that the accused persons are holding important posts in the Shriram Chemical Industries, Kota and have acted in a rash and negligent manner in not complying with the & full requirements which the Factory Act and the Indian Boiler Act and the rules framed thereunder called upon them to do. It was further contended that when on 19th February, 1977, one man hole was closed, then the accused persons or some responsible Officers should have been present there and in not deputing any responsible Officer there, the accused persons have acted rashly and negligently resulting in the death of the worker Iqbal Mohd. It was also contended that if the presence of the gases were checked and tested on 13th February, 1977, it cannot be said that no gases were present on 19th February, 1977, when Iqbal Mohd. was repairing the boiler. It was also contended that the application under Section 482, Cr. P. C. is at this stage, premature inasmuch as that the prosecution has not yet led evidence, It was, therefore, contended that full opportunity should be given to the prosecution to establish its case. It was contended that Iqbal Mohd has lost his life and the responsible Officers of the factory cannot escape from the liability of the death of Iqbal Mohd which accrued due to rash and negligent act of the accused persons.
(3.) IN rejoinder, it was contended on behalf of the accused-petitioners that the death must be the direct result of the actions of the accused persons. It was also contended that Iqbal Mohd. was not employed in the Shriram Chemical INdustries, Kota, but he was an employee of the contractor, M/s Kota Refractories, Kota, and condition No. 9 of the terms and conditions of the contract completely absolve the management of the Shriram Chemical INdustries, Kota. Respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused. These two applications are directed against the challan under sec. 304-A, IPC, and have nothing to do with the prosecution of the accused-petitioners either under the Factory Act or under the Indian Boiler Act read with the rules framed under the respective acts. ;