Cases Referred:

Advocates:
For the Applicant:D.S. Shishodia, Advocate.
For the Respondent: L.S. Udawat, P.P.

JUDGMENT

1. - The learned Munsif and Judicial Magistrage Rajnagar has taken cognizance of an offence Under Section 304A IPC against the present petitioner Deepak Khosla. Being aggrieved of this he has filed the present application Under Section 482 Cr. PC.

2. The facts of the case briefly stated are that the present petitioner is the owner of Marbles LT Upper Factory in village Pasund and deceased Nandlal was an employee of this factory. On 25-5-1982, the petitioner is alleged to have asked the deceased Nandlal to go over to the shed of the factory for its repairs. Nandal refused to climb the roof as there were live electric wires passing just about a few feet over the roof. However, the petitioner is alleged to have insisted upon his climbing the roof and it is also alleged that he threatened him that if he did not do so, he would not pay him his dues. Thereupon Nandlal climbed the roof but just after a little while he fell down from the roof and received injuries. Petitioner Deepak Khosla is alleged to have taken him in his car to Udaipur General Hospital and got him admitted there. However, Nandlal succumbed to his injuries on that very day. When he was declared dead the petitioner is alleged to have run away from the hospital without informing any one. The post mortem examination of the deceased was conducted, according to which it was found that he died on account of coma due to head injury. On 26-5-1982 at 7.30 P.M. Laluram, brother of the deceased, filed a written report stating the above facts before the SHO Police Station Rajsamand. The Police registered a case Under Section 304A Cr.PC and started investigation. The Police, however, came to a conclusion that it was a case of mere accident and, therefore, it filed a final report. The learned Magistrate did not accept this final report and took cognizance of the offence Under Section 304A IPC against the petitioner.

3. I have heard the learned Counsel for the petitioner and the learned Public Prosecutor and have gone through the record.

4. It is contended by the learned counsel for the petitioner that there is absolutely no material on the record to establish any rash or negligent act on the part of the present petitioner, leading to the death of deceased Nanalal and even if for the sake of arguments it is accepted that Nanalal went over the roof of the factory on the instance of or threats given by the petitioner the mere fact that the petitioner had compelled him to go over the roof does not necessarily show that the petitioner was rash or negligent and there is no nexus between the act of the petitioner in asking Nanalal to go over to the roof for its repairs and the death of Nanalal. He, therefore, submits that the learned Magistrate could not have taken cognizance of the offence Under Section 304A IPC against the petitioner in these circumstances.

5. On the other hand, the learned Public Prosecutor has stated that at present the learned Magistrate has only taken cognizance of the offence and it is not a stage where this Court should critically examine the evidence in order to find out whether there was sufficient evidence to establish the rash or negligent act of the petitioner and the nexus between that act and the death of the deceased Nanalal and, therefore, this Court should not interfere with the order of the learned Magistrate at this stage.

6. I have given my careful consideration to the rival contentions. There is no doubt that there must be a direct nexus between the death of a person and rash and negligent act of the accused in order to establish a charge Under Section 304A IPC against an accused as had been held by the Hon'ble Supreme Court in Suleman Rehman Mulani and Anr. v. The State of Maharashtra, AIR 1968 SC 829 , the question however is whether at this stage this Court should go deep into the matter and find out whether this nexus has been established or not. The stage is only of taking cognizance. The Learned Magistrate himself was not expected to go deep into the evidence and assess it. It would not be proper for me to make any observation on the merits of the matter at this stage, lest it should prejudice the case of the prosecution or the accused, but all that can be stated at this stage is that it does not appear to be a case where the learned Magistrate could be said to have acted perversely in taking cognizance of the offence. There are allegations in the FIR and there is also some evidence to show that the petitioner had asked the deceased Nanalal to go over the roof of the factory and Nanalal had refused to do so on account of the presence of the electric wires running a few feet above the roof. The prosecution case further is that the petitioner insisted upon his going over the roof and then he fell down.

7. Now whether this would amount to a rash and negligent act of the petitioner or not and whether there was any nexus between the alleged rash or negligent act of the petitioner and the death of Nanalal is a question which the learned Magistrate will have to consider at the time of framing charge against the accused. It will be open to him to come to a conclusion that in the circumstances, the petitioner cannot be attributed any rashness or negligence in insisting upon Nanalal's going over the roof or that there was no nexus between this act of the petitioner and the death of Nanalal and if he arrives at such a finding he may discharge the accused. But at this stage it would not be proper for me interfere with the order of the learned Magistrate taking cognizance of the offence.

8. I, therefore, do not find force in this petition and reject the same.Petition rejected.

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