1. This is an appeal against an order passed by the. Judicial Magistrate, First Class, Broach, acquitting the accused who were tried before him in Criminal Case No. 3148 of 1955 for offences under Section 304A and under Section 304A read with Section 109 of the Indian Penal Code.
2. In the town of Broach there is a factory known as the Gopal Mills which manufactures cotton textiles. Accused No. 1 is the occupier of that mill, accused No. 2 is the manager of that mill, accused No. 3 was in charge as manager on July 4, 1955-the date of the offence-and accused No. 4 is an engineer of the mill. In the factory a purification plant is installed. On July 4, 1955, a valve pit in the purification plant stopped functioning, and one Fakirji who was attending to the plant asked one Melia Dadla, a labourer, to enter the pit for opening the valve. Melia Dadla who entered the pit with a crow-bar was overpowered by poisonous fumes and became unconscious. Fakirji, finding that Melia Dadla had become unconscious, himself entered the pit and he was also overpowered by the poisonous fumes. Three other persons also entered the pit and they also lost consciousness. The Municipal Fire Brigade at Broach was then contacted, and one Mr. Tanna, Superintendent of the Fire Brigade, arrived on the scene. Mr. Tanna entered the pit where the five workmen were lying unconscious on the floor of the pit. He brought out two of them, but in the process, he himself was overpowered by the fumes and became unconscious. The other three labourers were also brought out, and all the five labourers and Mr. Tanna were rushed to the Civil Hospital. All the five labourers died, but Mr. Tanna survived. Thereafter a charge-sheet was lodged against Chinubhai Haridas Sheth, the occupier of the Factory, who will hereafter be referred to as accused No. 1 for offences under Sub-sections (3) and (4) of Section 36 of the Factories Act, 1948. Accused No. 1 was tried in Criminal Case No. 2890 of 1955 by the Judicial Magistrate, First Class, Broach, for those offences. The learned Magistrate acquitted accused No. 1 of those offences. Against the order of acquittal the State of Bombay preferred Criminal Appeal No. 365 of 1957. That appeal was heard by Mr. Justice Vyas and Mr. Justice Palnitkar on August 1, 1957 and the learned Judges set aside the order of acquittal passed by the trial Court and remanded the proceeding for investigation of a complaint under Section 101 of the Factories Act by accused No. 1 against S.D. Vashistha and Haribhai Tripathi-respectively the manager and engineer of the mill. We are informed at the Bar that special leave to appeal against the order of remand has been granted by their Lordships of the Supreme Court and the appeal is pending for decision.
3. In the meanwhile, a complaint under Section 304A of the Indian Penal Code was filed against the four accused charging them with having neglected to take all practicable measures to remove the fumes of dangerous gases from the pit of ;the purification plant in the mill premises and with having also neglected to provide the workers with suitable breathing apparatus and belts, and with failing to take the necessary precautions and thereby causing the death of Melia Dadla, Fakirji Dhanjishaw, Manilal Bechar, Chhotubhai Nathu-bhai and Maganlal Gordhandas. In the alternative, accused Nos. 3 and 4 were charged with having neglected to take all practicable measures to remove the fumes of the dangerous gases from the pit of the purification plant in the mill premises and with having neglected to provide the workers with suitable breathing apparatus and belts and with failing to take the necessary precautions and by doing these negligent acts causing the death of the aforesaid five persons and thereby committing an offence punishable under Section 304A of the Indian Penal Code; and accused Nos. 1 and 2 were charged with abetting accused Nos. 3 and 4 in the commission of the offence under Section 304A of the Indian Penal Code.
4. The learned trial Magistrate on the evidence held that it was not established that the four accused or any of them had neglected to take measures to remove the fumes of dangerous gases in the pit of the purification plant or had neglected to provide the workers with suitable breathing apparatus and belts. lie held that merely because accused No. 1 did not maintain the breathing and reviving apparatus and belts and ropes he was not on that account exposed to the penalty prescribed for breach of the provisions contained in Section 36(4) of the Factories Act. In his view, the obligation to provide suitable breathing apparatus and reviving apparatus was not absolute but arose only when permission was granted by the management to any worker to enter the pit or when a person actually entered the pit after permission and not till then, and it was not obligatory upon the occupier of the mill or the management to maintain the apparatus near the valve pit at all times. On that view he declared that the accused were not liable to provide the apparatus near the pit before any permission to enter the pit was granted, and for the consequences which arose out of the failure to maintain the apparatus near the pit the accused could not be held liable.
5. The view taken by the learned trial Magistrate that there is no absolute obligation on the part of an occupier or manager of a factory to maintain the breathing and reviving apparatus near the pit has not been accepted by this Court in State v. Chinubhai Haridas : AIR1958Bom257 . It was held in that case that Section 36(4) of the Factories Act, 1948, imposes an obligation upon the manager or occupier of a factory to keep ready at all times, beside a confined space, suitable breathing apparatus, reviving apparatus, belts and ropes for instant use whether any person had entered the said space or not, whether the entry had been made with permission or not and whether any need for the use of these appliances arose in fact or not. The view taken by the learned trial Magistrate as to the nature of the obligation imposed upon the management of the factory cannot, therefore, on the view taken by this Court, be sustained.
6. But we are unable on the facts proved to hold the accused guilty of the offence under Section 304A of the Indian Penal Code. It is undisputed that none of the four accused was present at the scene when the workmen entered the pit. Melia Dadla was the first workman to enter the pit, and he was so directed by Fakirji. Fakirji then entered the pit and three other workmen followed him. It is not the case for the prosecution that any of the four accused had directed these five workmen to enter the valve pit, nor does there appear to be any reliable evidence on the record to show that it was even to the knowledge of any of the four accused that these workmen had entered the pit. Section 304A of the Indian Penal Code provides the penalty for causing death by negligence. Under that section whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished as provided therein. The evidence in this case does not justify the view that the accused had caused the death of the five persons who died on account of the poisonous fumes which had accumulated in the valve pit. In our view, the rash or negligent act which causes the death of the victim must be the immediate or proximate cause of death and not any act or omission which can be said to be a remote cause of death. The expression 'act' does undoubtedly include unless the context otherwise warrants an illegal omission (vide Section 32 of the Indian Penal Code). But not only must the act or illegal omission result in death, but the death must have been the direct result of the act or illegal omission of the accused. It was held by this Court in Emperor v. Omkar (1902) 4 Bom. L.R. 679:.to impose criminal liability on the accused [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 have been 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 won.
In the present case, the death of the five workmen of the factory was not the causa causans of any act or illegal omission on the part of the four accused or any of them.
7. In our view, therefore, the order of acquittal passed by the trial Magistrate, must be upheld. We may, however, observe that in this case we are not concerned to deal with the question whether the four accused or any of them are guilty of an offence under Section 92 read with Section 36, Sub-sections (3) and (4), of the Factories Act, 1948. That question is pending for determination before their Lordships of the Supreme Court, and we are not called upon to decide that question, nor is any observation made herein intended to deal with the liability alleged to have been incurred by any of the accused for infringement of the provision of Section 36 of the Factories Act.
8. The order of acquittal passed by the trial Magistrate is confirmed and the appeal dismissed.