Sec 304 a ipc
Nishant Jojhra
(Querist) 16 May 2012
This query is : Resolved
A man dies of electrocution n his legal representatives filed a criminal complaint against the LINEMAN and JUNIOR ENGINEER. Charge is yet to b framed. I am representing JUNIOR ENGINEER. How can I save him from being framed in this case?
SAINATH DEVALLA
(Expert) 16 May 2012
It is a criminal negligence of duty on the part of the line man and the junior engineer.
A duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law between individuals with no current direct relationship (familial or contractual or otherwise), but eventually become related in some manner, as defined by common law (meaning case law).
Duty of care may be considered a formalization of the social contract, the implicit responsibilities held by individuals towards others within society. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence of common law.
Hence both them can be chargesheeted for negligence of duty resulting in a serious casualty.
Adv.R.P.Chugh
(Expert) 16 May 2012
Dear Nishant,
I assume lineman/jr.engineer are being charged for S.304A. I have the following things to say that might benefit you when arguing for a discharge :-
1. Discharge only when charge appears groundless on proseuction material prima facie. No mini trial can be expected - scope of scrutiny quite narrow.
2. For fixing liability u/s 304A it is not just negligence but gross and culpable negligence is required. Negligence is unintentional failure to conform to the standard of care that a reasonable man should keep. This is not enough for 304A - it has to be so gross that the reckless (attitude of indifference to obvious risks) is writ large on the face of record. Any inadvertance is not 304A it has to be something that stares in the face of judge - the height of wantan-ness and disregard of life. Failure to take steps which a reasonable man at all costs should have taken. It should be perverse. A mere error of judgment/lapse/inadvertant lapse is not 304A.
3. Causation also has to be kept in mind - the jr.engineer's negligence act or ommission should be the effective/proximate cause of accident not the remote cause. For eg : merely not checking up safety features routinely would not be a proximate cause, on the other hand - mishandling a major relocation of electrical poles - and in the process if live-wire drops - then it is the proximate cause.
4. Normally you should call only for a civil liability that too for which the Electricity Company is vicariously liable and not you individually because act/ommission took place in course of duty.
Feel free to discuss !
Nishant Jojhra
(Querist) 16 May 2012
thanx fr ur help....
can i get some judgments on this particular case, in which person is discharged from being framed....
Shonee Kapoor
(Expert) 17 May 2012
Try www.indiankanoon.org
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
