apl.920.2019.Judgment.odt (1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION (APL) NO.920 OF 2019 Premraj @ Baba Baburao Daware, Aged about 67 Years, Occupation : Business, R/o 169, Vivekanand Nagar, Wardha Road, Nagpur. ..... APPLICANT // VERSUS // 1. State of Maharashtra, through Police Station Talegaon, District Wardha. 2. Sunil s/o Sacchitanand Pal, Aged about 37 Years, R/o. Quarter No.8, Second – 25, Obra Colony, Obra Sonbhadra, District Obra Sonbhadra, Uttarpradesh. .... NON-APPLICANTS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Abhay Sambre, Advocate for applicant. Mr. A. M. Kadukar, APP for non-applicant No.1/State. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : URMILA JOSHI-PHALKE, J. RESERVED ON : 21.01.2026 PRONOUNCED ON : 23.01.2026 JUDGMENT : 1. Admit. 2. Heard finally with the consent of the learned Counsel for the parties. 3. Present application preferred by the applicant for quashing and setting aside the charge sheet No.29/2019 dated 2026:BHC-NAG:1162-DB apl.920.2019.Judgment.odt (2) 24.06.2019 registered with Police Station Talegaon, District Wardha for the offence punishable under Sections 279, 337, 338, 304(A) and 304 of the Indian Penal Code read with 184 and 187 of the Motor Vehicles Act in connection with Crime No.46/2014. 4. As per the contention of the applicant, he is a reputed businessman, and running a travel business since long. The crime is registered against him on the basis of a report lodged by Police Officer Dinesh Zambre that applicant is the owner of BABA travels and bus bearing No. MH-31-CQ-2779 is owned by him. On the day of incident i.e. 29.05.2014, the co-accused driver of the bus has driven its vehicle in rash and negligent manner, due to which the bus has caught the fire and in the said incident three passengers died on the spot, whereas 12 to 13 passengers have sustained the injuries. On the basis of the said report, police have registered the crime against the present applicant as well as the other co-accused on an allegation that due to the negligence on the part of the present applicant, as the bus was not maintained in a proper condition, the bus has caught the fire and death of three persons were caused. Whereas, 12 to 13 persons were injured when the bus was proceeding from Malkapur to Nagpur. 5. After registration of the crime, the Investigating Officer has recorded the statements of the witnesses, who were apl.920.2019.Judgment.odt (3) travelling in the said bus. The statement of the RTO Officer is also recorded and after completion of the investigation papers, the charge sheet was submitted against the present applicant as well as the other co-accused. 6. Heard learned counsel Mr. Abhay Sambre for the applicant, who submitted that a bare perusal of the FIR shows that the fire was due to unidentified reasons and not because of the intention of misdoing at the hands of the present applicant. It is further submitted that the applicant has as many as 25 buses and running on various roads. He submitted that it is merely an accident, there is no negligence on the part of the present applicant. The statements of the witnesses also nowhere discloses any negligence on the part of the present applicant. The fitness certificate was already issued to the bus which is involved in the accident. The statement of the RTO Officer namely, Jayant Macchindra More, recorded during the investigation shows that he has inspected the vehicle and thereafter issued the fitness certificate. In view of the said statement of the RTO Officer, it is clear that there was no negligence as far as the present applicant is concerned. In view of that, the application deserves to be allowed. 7. Per contra leaned APP strongly opposed the said contention and invited my attention towards the statements of apl.920.2019.Judgment.odt (4) the various passengers which shows that the necessary equipment were not kept in the bus in case of emergency. He submitted that even the statement of Jayant Macchindra More, who is the RTO Officer shows that as per the safety norms two fire extinguisher requires to be kept in the AC Sleeper Coach. One fire extinguisher requires to be kept in the driver’s Cabin and other on the back portion of the bus. He further submitted that the entire maintenance is to be done by the owner of the bus. Though the witness RTO Officer has stated about the requirements, but his statement nowhere shows that all these requirements were fulfilled by the present applicant. On the contrary statements of the various passengers shows that there was no fire extinguisher kept in the vehicle. The bus has caught the fire due to the non-maintenance of the AC. In view of that, the application deserves to be rejected. In support of his contention he placed reliance on 1] Ravi Kapur Vs. State of Rajasthan reported in 2012 AIR SC 2986, and 2]Criminal Appeal No. 113/2016 [Yograj s/o Atmaram Rahangdale Vs. The of Maharashtra] decided on 19.08.2023 and submitted that considering the statement at the prima facie stage, the offence is made out against the present applicant and therefore, the application deserves to be rejected. apl.920.2019.Judgment.odt (5) 8. On hearing both sides and on perusal of the entire investigation papers, there is no dispute that three persons died in an incident, whereas 12 to 13 persons have sustained the injuries. It is also not disputed that as the bus MH-31-CQ-2779 has caught the fire and in the said incident, death of three persons were caused. During the investigation, the Investigating Officer has recorded the relevant statements of the witnesses including the statements of the passengers. Admittedly, the passengers have stated that there is a possibility of catching of the fire by bus due to non-maintenance of the AC. The statements of some passengers shows that the driver has kept the vehicle in running though it was in a parking condition and therefore, heat indicator caught the fire and due to which, the bus was burnt. However, the statements of the witnesses shows that the owner of the vehicle has not kept fire extinguisher in the said vehicle. The statement of the RTO Officer Jayant Macchindra More shows that as per the safety norms, the owner of the vehicle requires to be kept two fire extinguisher, one in Cabin of the driver and other in back portion of the bus and the vehicle is to be inspected and thereafter, the fitness certificate is to be issued. On perusal of the said statement, it further reveals that the burden is on the owner of the vehicle to keep the vehicle in a proper condition. It further shows that he has inspected the vehicle and issued the fitness certificate. However, his apl.920.2019.Judgment.odt (6) statement nowhere shows that while inspecting the vehicle, he has observed that bus was maintained in a proper condition and the fire extinguishers were kept in the said vehicle. Thus, statement of the RTO as well as the statements of the various witnesses shows that the safety implements were not kept in the said vehicle. 9. As regard the applicability of Section 304 of the Indian Penal Code, the said Section states that whoever commits culpable homicide not amounting to murder, shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and 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 imprisonment of either description for a term which may extend to ten years, or with fine, or with both, 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. 10. The plain reading of the above Section makes it clear that Section 304 is divided into two parts which are referred as 304 Part I and 304 Part II of the Indian Penal Code. apl.920.2019.Judgment.odt (7) 11. When Section 304-A was inserted in the Indian Penal Code by Amendment Act 1870, it runs as causing death by negligence. The said Section states, “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.” 12. Thus, there is distinction between Section 304 and Section 304-A of the Indian Penal Code. Section 304-A states about case 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 within the meaning of Section 300 of the Indian Penal Code. Section 304-A deals with homicidal death by rash and negligent act. Though the term negligence has not been defined in the Indian Penal Code, it can be stated that the negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate conduct of human affairs, would do, or doing something which a reasonable and prudent man would not do. 13. Learned APP placed reliance of the decision of Ravi Kapur Vs. State of Rajasthan (supra) wherein the Hon’ble apl.920.2019.Judgment.odt (8) Apex Court dealt with the terms negligence and observed in the para No.11 as below: 11. ‘Negligence’ means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence” 14. While considering whether there was negligence or not the another parameter which requires to be taken into consideration, whether the concerned person has taken a reasonable care, the parameter ‘reasonable care’ while considering the question of negligence is material. If imposes an obligation or a duty upon a person to care and duty attains a higher degree while performing the duty. For example, while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or apl.920.2019.Judgment.odt (9) pedestrians. They are expected to take sufficient care to avoid danger to others. 15. In view of Section 304-A 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. Doing an act with intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. Whereas the provision under Section 304-A is not limited to rash or negligent driving but it includes any rash or negligent rash 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. 16. With the above principles, what constitutes negligence has been analysed in Halsbury's Laws of England (4th Edn.), Vol. 34, Para 1 (p. 3), as follows: “1. General principles of the law of negligence.— 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 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 apl.920.2019.Judgment.odt (10) 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.” 17. In the light of the above, if the negligence in the present case is examined can be gathered from the attending circumstances. As already observed that as per the statement of the RTO Officer, the applicant who is the owner of the vehicle is under obligation to keep the safety measures in the AC bus. The statements of the witnesses admittedly shows that no fire extinguishers were kept in the AC bus, and therefore, the fire could not be controlled. The statement of the RTO though shows that it is requirement, but it nowhere reflects that while inspecting the vehicle, he has observed the compliance of the apl.920.2019.Judgment.odt (11) said safety measures. In the light of the absence of the said statement on the part of the RTO, the statements of the witnesses who were travelling as passenger is relevant which shows that there was no fire extinguishers in the said bus. As well as the statements of the witnesses shows that the bus was not maintained properly, and therefore, there is a possibility of catching fire due to some defect in the AC. At this stage, the said statements are taken into consideration, though fitness certificate issued as to the bus involved in the said incident. But considering the attaining circumstances that the bus has caught the fire, the fire extinguishers were not kept in the bus which is a requirement. There were no safety measures kept in the bus in case of an untoward incident if happens. Thus, in cases were negligence is the primary cause, it is to be taken into consideration as far as the applicant is concerned, who is the owner of the vehicle and was negligent and not verified whether the safety measures were kept in the bus which is the requirement. Due to the unfortunate incident, three persons lost their lives and 12 to 13 persons have sustained burn injuries. The said fact reveals from the statements of the various witnesses, various possibilities are laid down as far as the catching of the fire by the bus is concerned, but in the light of the statement of the RTO, the obligation is on the owner to keep the said safety measures which he had not kept and in the apl.920.2019.Judgment.odt (12) absent of said safety measures, the passengers could not save the life of the other passengers as well as some passengers sustained the injuries. 18. Thus, applying the principles narrowed down, as far as the negligence on the part of the present applicant is concerned, at this stage, there is material against the applicant to attract the offence against him. By applying the parameters laid down by the Hon’ble Apex Court in the case of State of Haryana and others Vs Bhajan Lal and others reported in 1992 Supp. (1) SCC 335, which reads as under: “(1) 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. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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. (3) 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. (4) 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. apl.920.2019.Judgment.odt (13) (5) 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. (6) 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 concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) 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.” 19. The prima facie case is made out against the applicant and therefore, the application for quashing of the FIR deserves to be rejected. Accordingly, I proceed to pass following order: ORDER The application is rejected. (URMILA JOSHI-PHALKE, J.) Sarkate.