Page No.# 1/8 GAHC010205222025 2025:GAU-AS:13314 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2975/2025 SHRI AVINASH BHARTIA SON OF SRI RAMAVATAR BHARTIA RESIDENT OF FLAT NO 9A BLOCK C SIGNATURE ESTATES OPPOSITE DGP OFFICE B K KAKATI ROAD ULUBARI PO ULUBARI PS PALTANBAZAR GUWAHATI ASSAM, PIN-781007. VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. T J MAHANTA, MR P TALUKDAR,MR. K K DUTTA,MR W R MEDHI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE PRANJAL DAS ORDER Date : 24.09.2025 Heard Mr. T.J. Mahanta, learned Senior counsel assisted by Mr. W.R. Medhi, learned counsel for the petitioner. Also heard Mr. D.P. Goswami, learned Page No.# 2/8 Additional Public Prosecutor for the State. 2. This application has been filed under section 483 of the Bharatiya Nagarik Suraskha Sanhita, 2023, whereby the accused petitioner namely, Avinash Bhartia, has prayed for bail in connection with Fatasil Ambari P.S. Case No. 127/2025, under Section 105/125/285/3(5) of BNS, 2023. 3. The case arose out of an FIR dated 04.09.2025 alleging that the informant’s son felt down in an open drain and lost his life. That, drain was left open for almost over a year due to negligence of the company looking after the construction of the re-development project being carried out by one Bhartia Infra Project Ltd. (BIPL). The present accused is stated to be a Director of BIPL, looking after regular affairs of the company including the instant project. 4. The case diary, as called for, has been received along with elaborate bail objection filed by the I/O. 5. The learned Senior counsel contends that the petitioner has been in judicial custody since 04.09.2025; though he belongs to the company executing the construction works but the said company had taken precaution and erected barricades and other barriers along the vulnerable points; however, from time to time, miscreants committed theft of the said barricades resulting in risks. It is also submitted that contending but not admitting – at best the failing on the part of the accused might be one of negligence and that knowledge causing death cannot be attributed to them. 6. On the other hand, the learned Additional Public Prosecutor submits that the contentions of the I/O are worth considering and that the negligence of the accused persons in failing to put in place safety measures, is directly responsible Page No.# 3/8 for causing the death of a small innocent child and therefore, they have been rightly prosecuted for culpable homicide as well, apart from criminal negligence. 7. Before proceeding further, some points of law may be considered. Causing death of a person by a rash and negligent act is punishable as a criminal offence punishable under Section 106 BNS (corresponding to earlier section 304-A of IPC). If the criminal negligence of the accused is of such a gross nature and degree that he can also be imputed with a knowledge that his act will endanger life – then the said act of gross negligence does not remain just criminal negligence, but also crosses over into the domain of culpable homicide not amounting to murder, wherein the accused is attributed with knowledge of causing death, even if he may not have intention to cause death. 8. One of the land mark decisions of the Hon’ble Supreme Court on the subject of criminal negligence vis-à-vis culpable homicide not amounting to murder is – Alister Anthony Pareira v. State of Maharashtra, reported in (2012) 2 SCC 648. In the said decision, several important principles have been laid down, in this regard. The following relevant paragraphs (para 41, 42, 43, 79) may be reproduced herein below- “41. Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of law—in view of the provisions of IPC—the cases which fall within the last clause of Section 299 but not within clause “Fourthly” of Section 300 may cover the cases of rash or Page No.# 4/8 negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC. Section 304-A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description. 42. A person, responsible for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with culpability of homicide not amounting to murder and punishable under Section 304 Part II IPC. There is no incongruity, if simultaneously with the offence under Section 304 Part II, a person who has done an act so rashly or negligently endangering human life or the personal safety of the others and causes grievous hurt to any person is tried for the offence under Section 338 IPC. 43. In view of the above, in our opinion there is no impediment in law for an offender being charged for the offence under Section 304 Part II IPC and also under Sections 337 and 338 IPC. The two charges under Section 304 Part II IPC and Section 338 IPC can legally coexist in a case of single rash or negligent act where a rash or negligent act is done with the knowledge of likelihood of its dangerous consequences. 79. There is a presumption that a man knows the natural and likely consequences of his acts. Moreover, an act does not become involuntary act simply because its consequences were unforeseen. The cases of negligence or of rashness or dangerous driving do not eliminate the act being voluntary. In the present case, the essential ingredients of Section 304 Part II IPC have been successfully established by the prosecution against the appellant. The Page No.# 5/8 infirmities pointed out by Mr U.U. Lalit, learned Senior Counsel for the appellant, which have been noticed above are not substantial and in no way affect the legality of the trial and the conviction of the appellant under Section 304 Part II IPC. We uphold the view of the High Court being consistent with the evidence on record and law.” 9. Now, on the touchstone of these principles, the materials of the instant case has to be seen to determine whether the materials prima facie make out an act of only criminal negligence or they also constitute an act of culpable homicide, as has been alleged by the investigating officer, and supported thereof by the prosecution. Perusal of the case diary reveals that the present accused is stated to be looking after the construction work. The accused is the Director of the company which is executing the work. 10. The I/O, strongly opposing the bail at this stage, has contended that investigation has revealed that within space of one year, another incident had taken place where a labour aged below 18 years had fallen down and met with his death and in this connection, Fatasil Ambari police station Case No. 116/2025 was registered. It is contended by the I/O that even thereafter, the company and the persons concerned, including the present petitioner did not take any steps to address the issue of lack of safety along with the authorities and of closing open drains and erecting barriers. Investigation has also revealed some materials that sometimes miscreants used to steal certain barricades etc; but investigation in this regard has also revealed that though it was pointed by the concerned public – the company did not use to attend to such issue after theft and used to take unduly long time to effect fresh safety measures or in some cases never attended the same. That, even after the accident resulting in the death of the labourer, these safety issues were pointed out by the public but Page No.# 6/8 not attended to by the company persons like the petitioner. The I/O has contended that investigation materials reveal that the accused person and his company did not take the issue of safety seriously and did not install safety measures to save costs for the company. The I/O has also contended that the accused persons on behalf of the company prioritized maximum profit over spending money for safety measures. 11. About perusing and analyzing the materials in the case diary revealed by investigation, I find force in the aforesaid contentions of the investigation officer. The investigating officer has also contended that granting of bail to the accused at this stage shall prejudice the investigation as the same is in active progress. It is contended that the accused is an influential person and is in a situation to influence witnesses and tamper with documentary evidence. In this context, it is contended that several important documents pertaining to role of the accused person and his company in executing adequate safety measures remained to be procured and seized. 12. It is contended by the petitioner’s side that the company immediately paid compensation approximately Rs.15,00,000/- to the family of the deceased child. 13. Needlessly to say that, such compensation might provide some solace to the bereaved family. However, irrespective of financial position of the victim’s family, no amount of money can bring back and untimely lost precious human life. Further, even if the victim family seeks and secures compensation under public law for violation of right to life – even such compensation amount is usually paid from the tax payers money, subject to any portion thereof directed by the concerned Writ Court to be realized from concerned persons. Page No.# 7/8 14. The powerful contentions of the I/O, apart from finding support from the investigation materials, are also worth consideration and cannot be brushed aside. Some photographs and pictures of CCTV footage are also available which prima facie indicate grossly unsafe situation, prevailing at the stated place of occurrence. The circumstances surrounding the death of the minor child by falling into the open drain which is filled up by water has also to be seen in the context of the labourer’s death within a span of one year due to similar lack of safety with regard to the construction and works under taken by the same company, wherein the present accused is a Director. 15. If the allegations and the materials revealed by the investigation are to be believed, then it means that one portion of the drain was left open during the construction of the project. The materials indicate that one portion of the drain was not only left open, but also was in such a state for about a year, and that if a slab of drain filled with water is left open, it would pose considerable risk to the pedestrians, especially elderly and young people. The open part can easily be covered by a slab or similar structure. 16. Needless to say that the pain and suffering of parents losing their young child to an accidental death is unimaginable and cannot be compensated by anything, except perhaps to some extent the healing process of time. 17. Upon perusing all the materials which have emerged and giving my anxious consideration to the matter – I find force in the aforesaid contentions of the I/O that at this stage of investigation, it would not be prudent to grant bail to the accused in the interest of effective investigation and interest of justice. Accordingly, in such view of the mater, instant bail petition stands rejected at this stage. Page No.# 8/8 18. Send back the case diary. JUDGE Comparing Assistant