Himachal Pradesh High Court
Nilesh Patel vs State Of H.P. And Another on 9 July, 2026
Author: Sandeep Sharma
Bench: Sandeep Sharma
2026:HHC:29300
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO Nos.355 to 357 of 2025
Date of Decision: 09.07.2026
__________________________________________________________________________
1. Cr.MMO No.355 of 2025
Nilesh Patel .........Petitioner
Versus
State of H.P. and Another .......Respondents
2. Cr.MMO No.356 of 2025
Siddhart Patel .........Petitioner
Versus
State of H.P. and Another .......Respondents
3. Cr.MMO No.357 of 2025
Milan Patel .........Petitioner
Versus
State of H.P. and Another .......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
__________________________________________________________________________
For the Petitioner(s): Mr. Ajay Kochhar, Senior Advocate, with Mr.
Vaibhav Shukla (VALS Legal), Mr. Ashwani K.
Sharma, Ms. Swati Sharma and Mr. Varun
Chauhan, Advocates.
For the Respondents: Mr. Rajan Kahol & Mr. Vishal Panwar, Additional
Advocates General, with Mr. Ravi Chauhan and Mr.
Anish Banshtu, Deputy Advocates General, for
State.
Mr. Kulwant Singh Gill, Advocate, for respondent
No.2.
_________________________________________________________________________________
1
Whether the reporters of the local papers may be allowed to see the judgment? Yes.
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2
Sandeep Sharma, J. (Oral)
By way of above captioned petitions filed under Section 528 of
Bharatiya Nagarik Suraksha Sanhita, 2023, (hereinafter, ‘BNSS’), prayer
has been made on behalf of the petitioners for quashing of FIR No.14 of 2024,
dated 02.02.2024, under Sections 285, 336, 337, 338, 304(ii), 304-A, 308,
read with Section 34 of IPC and Section 92 of the Factories Act, 1948,
registered at Police Station Barotiwala, District Solan, Himachal Pradesh, as
well as consequential proceedings, including order of cognizance passed by
learned Additional Chief Judicial Magistrate, Nalagarh, District Solan, vide
case No.26/2024, CNR No.HPS020015352024.
2. Since common questions of facts and law are involved in all the
above-captioned cases, this Court, after having clubbed all the cases, heard
them together and are now being disposed of vide common judgment.
3. For having bird’s eye view, quintessential facts, which are
common in all the above captioned cases, as emerge from the pleadings as
well as other material adduced on record by the respective parties are that
company namely M/s N.R. Aromas, situate at Baddi, is engaged in the
business of manufacture and trading of perfume and other perfumery
products, such as alcohol free deodorant spray and room freshener etc.
Petitioners herein are partners/Directors of afore firm, head-office of which
is situate at Ratlam, Madhya Pradesh. On 02.02.2024, an unfortunate
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accident of fire occurred during the day time in the premises of afore
company, as a result thereof, panic and stampede like situation arose, which
resulted in ill-fated demise of nine employees working in the factory and
injuries to 35 employees.
4. Worker namely Satinder, who at that relevant time was working
in the factory concerned, got his statement recorded under Section 154
Cr.P.C., stating therein that incident of fire occurred on account of rash and
negligent act of the management of the Company. He alleged that on
02.02.2024 at about 01:30 pm, he, after having finished his lunch, came
back on duty and noticed smoke coming out of the stairs. He also disclosed
to the Police that when he opened the gate, he saw smoke as well as fire
flames and as such, he shut the door. He disclosed to the Police that on
coming to know about the fire in the factory, panic and chaos spread and he
along with his wife, who was also working in the company, jumped from the
first floor and received injuries. He also reported to the Police that many of
the workers jumped out of the window and saved their lives, whereas persons
working in the basement were trapped in fire. While stating that 80 to 90
workers were working in the factory at the time of alleged incident of fire, he
alleged that some of them were unable to come out as they suffered grievous
injuries. He also alleged in the complaint that some of the employees who
had jumped from the first/second floor are under treatment and admitted at
Brooklin Hospital and ESIC, Khatha, whereas two persons, namely Charan
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Singh and Pinky had been referred to PGI Chandigarh, where Pinky
succumbed to the injuries. He alleged that highly inflammable substances
are used in factory and a little negligence can cause fire and danger to the
lives of workers. He alleged that incident of fire took place on account of
negligence of company, which had not made adequate arrangements for
keeping the highly inflammable substance at appropriate place to be stored.
5. On the basis of aforesaid statement made by the complainant,
named hereinabove, FIR sought to be quashed, came to be registered. Police
initially lodged FIR under Section 285, 336, 337 and 304 of IPC against
petitioners as well as other accused, namely Vinod Kumar and
Chandrashekhar, however subsequently during investigation, factum of
negligence of an employee namely Harish, which caused fire, also came to
the notice of the Police, as a result thereof, Police incorporated Section 304-
A of IPC and arrested Harish. However, subsequently, he was enlarged on
bail by the Police. All the accused named in the FIR, including petitioners
stand enlarged on bail.
6. After completion of investigation, Police has already presented
Challan in the competent Court of law, but before same could be taken to its
logical ends, petitioners have approached this Court in the instant
proceedings for quashing of FIR inasmuch as they have been booked under
Sections 304, Part II and 308 of Indian Penal Code.
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7. Precisely, the grouse of the petitioners, as has been highlighted
in the grounds of petitions and further canvassed by Mr. Ajay Kochhar,
learned Senior Counsel representing the petitioners, duly assisted by Mr.
Vaibhav Shukla, Mr. Ashwani K. Sharma and Ms. Swati Sharma, is that once
it is not in dispute that petitioners, being partners/Directors of the company
were not present in the factory premises at the time of unfortunate incident,
coupled with the fact that head office of the company is situate at Ratlam,
Madhya Pradesh, they could not have been booked under Sections 304, Part
II and 308 of IPC. While making this Court peruse Challan submitted by the
prosecution after completion of investigation in the competent court of law,
Mr. Kochhar vehemently argued that as per own case of the prosecution,
unfortunate accident of fire took place on account of negligence, if any, of co-
accused Harish Chander, who, on the date of alleged incident, was assigned
duty of heating up highly inflammable chemical known as Compound-10,
containing 175 kilograms of chemical, which was to be put in the small
packets. Since considerable time was to be consumed in heating of the said
chemical, co-accused Harish Chander left for having his lunch and kept the
same unattended, but on his return, he noticed smoke coming out from the
said chemical and the moment he switched off the switch, the chemical
caught fire, which subsequently engulfed the entire factory into extensive
fire.
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8. Mr. Kochhar further submitted that investigating agency, after
having conducted investigation, especially statements of witnesses as well as
employees of company, incorporated section 304-A of IPC and arrested
Harish Chander for his having committed offence punishable under Sections
285, 336, 337, 338 and 304-A of IPC, however, subsequently, for no
justifiable reasons, petitioners herein came to be arraigned as accused on
the pretext that they are partners/Directors of M/s N.R. Aromas. He
submitted that since there is nothing on record to suggest that petitioners,
being in the capacity of partners/Directors of the company, were involved in
day-to-day operation of the factory and there was omission, if any, on their
part to take adequate steps of providing safety measures, they could not have
arraigned as accused, that too for their having committed offence punishable
under Sections 304-A, 304, Part II and 308 of IPC.
9. While making this Court peruse averments contained in the
petition as well as documents annexed therewith, Mr. Kochhar vehemently
argued that all requisite compliances and necessary permissions from the
statutory authorities were duly obtained by the management and same were
also renewed from time to time, including NOC from the Fire Department. He
submitted that official of the Fire Department before issuing NOC used to
inspect the premises thoroughly to check whether fire extinguishing
equipments and the measures adopted for protection of the fire, apart from
their placements at the appropriate places in the premises of the factory are
2026:HHC:29300
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taken or not. He submitted that it has come in the investigation that NOC
from the Fire Department was valid at the time of unfortunate incident. He
also submitted that raw material and products stored in the factory premises
were procured under valid license. While stating that entire firefighting
equipment system stood installed in the premises of the factory in question,
he also submitted that same were in perfect running condition and workers
working in the premises were also conversant with the handling/operating
of the firefighting equipments. Mock drill, as required, was also conducted
after every three months, which was also inspected by the officials of the Fire
Department before issuing the certificate. Mr. Kochhar submitted that
petitioners being partners/Directors of the company could not have been
made an accused for their allegedly having committed offence punishable
under Sections 304, Part II and 308 of IPC, especially when it is not in dispute
that majority of time they used to sit in Ratlam, Madhya Pradesh and
technical staff appointed at Baddi was responsible for day-to-day affairs of
the company. He submitted since in the instant case, Police has already
arrived at a conclusion that accident occurred on account of rash and
negligent act of co-accused Harish Chander, coupled with the fact that all
necessary compliances, as per different statutes, were done by the
Management, Section 304, Part II could not have been invoked in the case of
the petitioners. He submitted that petitioners, being partners/Directors,
have been taking all safety measures for the protection of employees as well
as material, which fact can be appreciated from the fact that since 2006,
2026:HHC:29300
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when the firm became functional and started aforesaid business, there had
been no such unfortunate incident endangering the life of workers or damage
to the property. He also submitted that evidence collected during
investigation further reveals that to safeguard the interest and safety of
employees, M/s N.R. Aromas had obtained employees compensation
insurance policy from Tata AIG Insurance Limited, covering all risk of injury
by accidents, fatal accident, medical expenses and occupational disease in
the course of employment in the business which were taken and reviewed
since the incorporation of firm (Annexure P-6). He also submitted that at the
time of unfortunate incident, fire insurance policy taken by company was
also valid and in that regard annual fee of ₹4,51,636/- was being paid by
firm. He submitted that taking note of huge amount involved in insurance,
Insurance Company before covering the risk had duly inspected the factory
premises and after finding fire hydrant system, safety management, plant
safety from rainwater, work permit system, automatic smoke detection and
sprinkler system, emergency response plan, mock drill and general safety
measures in order, issued the policy (Annexure P-7).
10. While responding to the allegation of prosecution that premises
had no emergency exit, Mr. Kochhar argued that same is without any basis,
rather statement made by many witnesses under Section 161 Cr.P.C. clearly
reveals that majority of the workers came out of the premises after alleged
incident of fire from the emergency exit. He submitted that factory premises
2026:HHC:29300
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had three gates on the ground floor, out of these two gates were being used
for bringing the raw material in the premises and transporting the finished
product from the premises and the third gate was being exclusively used for
ingress and egress of the employees of the firm. He submitted that there were
three doors which opened towards the ground area, out of which one was
exclusively marked and used as emergency exit. Similarly on the first, second
and third floor, there was a marked emergency exit door, which always
remained open for use in case of emergency. To substantiate his aforesaid
claim, he specifically referred to the approved map (Annexure P-8).
11. While referring to the statements of witnesses, namely Savitri
Devi wife of Amit Kumar, Savitri wife of Satinder Tarawati, Khusbu, Kranti,
Sapna, Rajbharti, Pushpa and Anita, etc., recorded under Section 161
Cr.P.C., Mr. Kochhar submitted that there was a provision of emergency gate
and using the same, number of people trapped in the fire saved their lives.
He submitted that inflammable chemicals used in the production of
perfumes were kept in compliances and in due standards of care and as
such, an accidental fire occasioned on account of negligence of Harish
Chander cannot be said to be an act of negligence of the management or the
petitioners. He submitted the basic ingredients to bring the case within the
mischief of Sections 285, 336, 337, 338, 304-A, 304 Part II and 308 of the
Indian Penal Code, and Section 92 of the Factories Act are missing in the
present case, as far as the petitioners are concerned and as such, prayer
2026:HHC:29300
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made on their behalf for quashing of FIR deserves to be allowed. He
strenuously argued that no case much less under Section 304, Part II is made
out in the admitted facts and circumstances, for the reason that there is
nothing on record, suggestive of the fact that the petitioners, being
partners/Directors of the firm, was having intention or knowledge that the
act of making perfume by using aromatic chemical can cause death of a
person responsible for the manufacture of such perfume, as merely use of
highly inflammable chemical itself cannot be ground to attract provisions
contained in Section 304, Part II, especially when the factory/unit had the
permission from the competent authority to use such chemicals for the
production of perfume. He further submitted that mere stacking of drums
containing highly inflammable chemicals by a Plant Head or its employee
engaged in day-to-day operation of the factory cannot be ground to fasten
the criminal liability upon the petitioners by concluding that the petitioners
were having knowledge that storing of chemicals, which otherwise required
for the production of perfume, would cause death or injuries to workers
working in the premises of M/s N.R. Aromas. Lastly, Mr. Kochhar submitted
that since, for the reasons and submissions made by him, the case of
prosecution is bound to fail in all probabilities, this Court, while exercising
power under Section 528 of BNSS, may proceed to quash the FIR in its toto
or inasmuch as petitioners herein have been charged under Sections 304,
Part II and 308 of IPC.
2026:HHC:29300
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12. To the contrary, Mr. Rajan Kahol, learned Additional Advocate
General, vehemently argued that the present petition is not maintainable for
the reason that charge, if any, under relevant provisions of law is yet to be
framed by competent Court of law on the basis of material adduced on record
by the prosecution along with final report filed under Section 173 Cr.P.C. He
submitted that since it is not in dispute that petitioners herein are the
partners/Directors of the company, they cannot escape their liability for the
negligence of its employees, which resulted in the death of nine workers. He
submitted that after the incident of fire, majority of workers were trapped
inside the factory premises as there was no emergency exit. He submitted
that the passage going to the emergency doors was blocked on account of
unsystematic stacking of drums containing highly inflammable substance.
He submitted that had the management issued specific instructions to its
employees in the factory to not stack drums containing inflammable
substance in the corridors, many workers would have saved their lives by
making their exit from the emergency door. He submitted that though the
petitioners may be right in contending that they had no intention of causing
accident, but they were fully aware that on account of stacking of
inflammable substance in the factory premises, there is a possibility of
incident of fire, but yet failed to take appropriate steps for the safety of
workers. He further submitted that Section 304, Part II has been rightly
invoked against the petitioners because this applies to acts done with the
knowledge of potential death, but without explicit intent. Lastly, Mr. Kahol
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submitted that the present petition is not maintainable at this stage because
charges, if any, under Sections 304, Part II and 308 are yet to be framed
against the petitioners, who otherwise, with a view to preempt the Court
below from framing charges under the aforesaid provisions of law, have
approached this Court in the instant proceedings, which are not
maintainable.
13. I have heard learned counsel representing the parties and gone
through the record of the case.
14. Before ascertaining the genuineness and correctness of the
submissions and counter submissions having been made by the learned
counsel for the parties vis-Ã -vis prayer made in the instant petition, this
Court deems it necessary to discuss/elaborate the scope and competence of
this Court to quash the criminal proceedings while exercising power under
Section 482 of Cr.PC.
15. A three-Judge Bench of the Hon’ble Apex Court in case titled
State of Karnataka v. L. Muniswamy and others, 1977 (2) SCC 699, held
that High Court while exercising power under Section 482 Cr.PC is entitled
to quash the proceedings, if it comes to the conclusion that allowing the
proceeding to continue would be an abuse of the process of the Court or that
the ends of justice require that the proceeding ought to be quashed.
16. Subsequently, in case titled State of Haryana and others v.
Bhajan Lal and others, 1992 Supp (1) SCC 335, the Hon’ble Apex Court
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while elaborately discussing the scope and competence of High Court to
quash criminal proceedings under Section 482 Cr.PC laid down certain
principles governing the jurisdiction of High Court to exercise its power. After
passing of aforesaid judgment, issue with regard to exercise of power under
Section 482 Cr.PC, again came to be considered by the Hon’ble Apex Court
in case bearing Criminal Appeal No.577 of 2017 (arising out of SLP (CrL.) No.
287 of 2017) titled Vineet Kumar and Ors. v. State of U.P. and Anr.,
wherein it has been held that saving of the High Court’s inherent powers,
both in civil and criminal matters, is designed to achieve a salutary public
purpose i.e. court proceedings ought not to be permitted to degenerate into
a weapon of harassment or persecution.
17. Reliance is placed upon judgment of Hon’ble Apex Court in
Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, relying upon
its earlier judgment titled as Rajiv Thapar and Ors v. Madan Lal Kapoor,
(2013) 3 SCC 330.
18. In this regard, reliance is place upon Amish Devgan vs Union
of India and Ors, (2021) 1 SCC 1, wherein the Hon’ble Apex Court held as
under:
“(vii) Conclusion and relief
116. At this stage and before recording our final conclusion, we would
like to refer to decision of this Court in Pirthi Chand [State of H.P. v.
Pirthi Chand, (1996) 2 SCC 37 : 1996 SCC (Cri) 210] wherein it has
been held : (SCC pp. 44-45, paras 12-13)
“12. It is thus settled law that the exercise of inherent power of
the High Court is an exceptional one. Great care should be
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taken by the High Court before embarking to scrutinize the
FIR/charge-sheet/complaint. In deciding whether the case is
rarest of rare cases to scuttle the prosecution in its inception,
it first has to get into the grip of the matter whether the
allegations constitute the offence. It must be remembered that
FIR is only an initiation to move the machinery and to
investigate into cognizable offence. After the investigation is
conducted (sic concluded) and the charge-sheet is laid, the
prosecution produces the statements of the witnesses recorded
under Section 161 of the Code in support of the charge-sheet.
At that stage it is not the function of the court to weigh the pros
and cons of the prosecution case or to consider necessity of
strict compliance with the provisions which are considered
mandatory and effect of its non-compliance. It would be done
after the trial is concluded. The court has to prima facie
consider from the averments in the charge-sheet and the
statements of witnesses on the record in support thereof
whether court could take cognizance of the offence on that
evidence and proceed further with the trial. If it reaches a
conclusion that no cognizable offence is made out, no further
act could be done except to quash the charge-sheet. But only in
exceptional cases i.e. in rarest of rare cases of mala fide
initiation of the proceedings to wreak private vengeance issue
of process under Criminal Procedure Code is availed of. A
reading of a [Vide Corrigendum dated 20-3-1996 issued from
Residential Office of Hon’ble Mr Justice K. Ramaswamy.]
complaint or FIR itself does not disclose at all any cognizable
offence — the court may embark upon the consideration thereof
and exercise the power.”
19. Recently, Hon’ble Apex Court in Abhishek Singh vs Ajay
Kumar and Ors., (2025) SCC OnLine SC 1313, held as under:
2026:HHC:29300
15“9. The scope of the Court’s power to quash and set aside proceedings
is well-settled to warrant any restatement. While the arguments
advanced have the potential to raise many issues for consideration, we
must first satisfy ourselves as to the propriety of the exercise of such
power by the High Court. The task of the High Court, when called upon
to adjudicate an application seeking to quash the proceedings, is to
see whether, prima facie, an offence is made out or not. It is not to
examine whether the charges may hold up in the Court. In doing so,
the area of action is circumscribed. In Rajeev Kourav v. Baisahab, it
was held:
“8. It is no more res integra that exercise of power under Section
482 CrPC to quash a criminal proceeding is only when an
allegation made in the FIR or the charge-sheet constitutes the
ingredients of the offence/offences alleged. Interference by the
High Court under Section 482 CrPC is to prevent the abuse of
process of any court or otherwise to secure the ends of justice.
It is settled law that the evidence produced by the accused in
his defence cannot be looked into by the court, except in very
exceptional circumstances, at the initial stage of the criminal
proceedings. It is trite law that the High Court cannot embark
upon the appreciation of evidence while considering the petition
filed under Section 482 CrPC for quashing criminal
proceedings. It is clear from the law laid down by this Court
that if a prima facie case is made out disclosing the ingredients
of the offence alleged against the accused, the Court cannot
quash a criminal proceeding.”
15. In that view of the matter, we hold that the High Court had
improperly quashed the proceedings initiated by the appellant.
It stands clarified that we have not expressed any opinion on
the matter, and the guilt or innocence of the respondents has
to be established in the trial, in accordance with the law. The
proceedings out of the subject FIR, mentioned in paragraph 2
are revived and restored to the file of the concerned Court.”
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20. Reliance in this regard is also placed upon judgment passed by
the Hon’ble Apex Court in B.N. John Vs. State of U.P., 2025 SCC OnLine
SC 7, which reads as under:
“7. As far as the quashing of criminal cases is concerned, it is now
more or less well settled as regards the principles to be applied by the
court. In this regard, one may refer to the decision of this Court in
State of Haryana v. Ch. Bhajan Lal, 1992 Supp (1) SCC 335, wherein
this Court has summarized some of the principles under which
FIR/complaints/criminal cases could be quashed in the following
words:
“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482 of
the Code which we have extracted and reproduced above, we
give the following categories of cases by way of illustration
wherein such power could be exercised either to prevent abuse
of the process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any precise
clearly defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive list of
myriad kinds of cases wherein such power should be
exercised.
(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.
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(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.
(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 a private and personal grudge.”
(emphasis added)
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8. Of the aforesaid criteria, clause no. (1), (4) and (6) would be of
relevance to us in this case.
In clause (1) it has been mentioned that 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, then
the FIR or the complaint can be quashed.
As per clause (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 dated by
the Magistrate as contemplated under Section 155 (2) of the CrPC, and
in such a situation, the FIR can be quashed.
Similarly, as provided under clause (6), if there is an express legal bar
engrafted in any of the provisions of the CrPC or the concerned Act
under which the criminal proceedings are instituted, such proceedings
can be quashed.”
21. Reliance is further placed upon the judgment passed by the
Hon’ble Apex Court in Ajay Malik v. State of Uttarakhand, 2025 SCC
OnLine SC 185, which reads as under:
“8. It is well established that a High Court, in exercising its
extraordinary powers under Section 482 of the CrPC, may issue orders
to prevent the abuse of court processes or to secure the ends of justice.
These inherent powers are neither controlled nor limited by any other
statutory provision. However, given the broad and profound nature of
this authority, the High Court must exercise it sparingly. The
conditions for invoking such powers are embedded within Section 482
of the CrPC itself, allowing the High Court to act only in cases of clear
abuse of process or where intervention is essential to uphold the ends
of justice.
9. It is in this backdrop that this Court, over the course of several
decades, has laid down the principles and guidelines that High Courts
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19must follow before quashing criminal proceedings at the threshold,
thereby pre-empting the Prosecution from building its case before the
Trial Court. The grounds for quashing, inter alia, contemplate the
following situations : (i) the criminal complaint has been filed with
mala fides; (ii) the FIR represents an abuse of the legal process; (iii) no
prima facie offence is made out; (iv) the dispute is civil in nature; (v.)
the complaint contains vague and omnibus allegations; and (vi) the
parties are willing to settle and compound the dispute amicably (State
of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335)
22. It is quite apparent from the bare perusal of aforesaid judgments
passed by the Hon’ble Apex Court from time to time that 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/her due to private
and personal grudge, High Court while exercising power under Section 482
Cr.PC can proceed to quash the proceedings.
23. Now being guided by the aforesaid proposition of law laid down
by the Hon’ble Apex Court, this Court would make an endeavor to examine
and consider the prayer made in the instant petition vis-Ã -vis factual matrix
of the case.
24. Having heard learned counsel representing the parties and
perused material available on record, this Court finds that there is no dispute
that the petitioners herein, at the time of the alleged incident, were
partners/Directors of the firm, looking after the affairs of the company from
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the head office at Ratlam, Madhya Pradesh, but they were not involved in the
day-to-day functioning of the plant. It is also not in dispute, rather stands
established on record that at the time of alleged incident, factory in question,
namely M/s N.R. Aromas, had valid permission to manufacture perfume. It
is also not in dispute that the NOC from the Fire Department was valid till
23rd March 2025, meaning thereby all safety requirements suggested by the
Fire Department were very much in place at the time of the alleged incident.
As per own case of the prosecution, fire broke out in the factory on account
of the negligence of one of the worker, namely Harish Chander, who was
assigned the duty of heating up the chemical. As per the statement given by
the complainant as well as other workers working in the factory and co-
accused of Harish Chander, on 02.02.2024, drum containing 170 kilograms
of chemical was being heated by Harish Chander. Since considerable time
was to be consumed in heating the chemical, above named Harish, left the
spot for having his lunch. When he came back after lunch, on noticing
smoke, he switched off the electric switch, but unfortunately, chemical
caught fire, which subsequently engulfed the entire factory.
25. It has also come in the investigation that fire took place on
account of short-circuiting near the site of heating. As a result of fire, smoke
started coming out from the premises and as such, workers working in the
factory started suffocating. Some of the workers were able to make their way
out from the emergency exit, whereas some of them were trapped in the
basement and unfortunately, on account of suffocation and explosion, they
2026:HHC:29300
21
lost their lives also. True it is that on account of unfortunate incident of fire,
as many as nine persons died and number of workers received injuries, but
having scanned the material made available before this Court, this Court is
persuaded to agree with Mr. Kochhar, learned Senior Counsel representing
the petitioners, that there is no evidence adduced on record by the
prosecution, suggestive of the fact that the incident of fire took place on
account of negligence, if any, of the petitioners, rather, same can be said to
have been happened on account of the negligence of Mr. Harish Chander,
who was otherwise duty-bound to remain present on the spot, till the
chemical in question was properly heated. As far as the stacking of highly
inflammable chemicals is concerned, it is not the case of the prosecution that
company concerned had no valid license to purchase and stock such
chemicals in the factory premises, rather, their case is that on account of
unorderly stacking of drums in the corridors, workers trapped in the fire were
unable to reach the emergency exit.
26. Statements made by some of the workers under Section 161
Cr.P.C., including the complainant, clearly reveal that majority of the
workers were able to come out through the emergency exit. Unfortunately,
some of the workers working in the basement were trapped. It is also not the
case of the prosecution that drums containing highly inflammable
substances allegedly kept in corridors caught fire at first instance, rather,
incident of fire first-time took place at a place where chemical was being
heated and thereafter it engulfed the entire factory premises. Even if it is
2026:HHC:29300
22
presumed that on account of unorderly stacking of drums, workers working
in the factory were unable to find their way out, but such fact, if any, may
not be sufficient to invoke Section 304, Part II, as far as the petitioners are
concerned, who admittedly, being part of the management, were sitting at
Ratlam, Madhya Pradesh. It has come in the evidence that the petitioners,
being partners/Directors of the firm, used to visit the factory at Baddi
occasionally and work of operation as well as manufacture of the product,
i.e. perfume, was being handled by the Plant Manager and Assistant Plant
Manager, Vinod Kumar and Chandrashekhar, who have already been made
accused. Since all the statutory compliances and necessary NOCs from the
departments concerned stood taken/granted in favor of company at Baddi,
coupled with the fact that separate staff stood appointed in the factory at
Baddi to look after the operations and manufacturing, petitioners herein,
being partners/Directors of the company, otherwise cannot be held
vicariously liable for criminal act, if any, of co-accused.
27. At this stage, it would be apt to take note of Section 304, Part II,
and Section 308 of the Indian Penal Code, which read as under:
“304. Punishment for culpable homicide not amounting to
murder.–
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,
2026:HHC:29300
23or 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.
308. Attempt to commit culpable homicide.–
Whoever does any act with such intention or knowledge and under
such circumstances that, if he by that act caused death, he would be
guilty of culpable homicide not amounting to murder, shall be
punished with imprisonment of either description for a term which
may extend to three years, or with fine, or with both; and, if hurt is
caused to any person by such act, shall be punished with
imprisonment of either description for a term which may extend to
seven years, or with fine, or with both.”
28. To prove case, if any, under Section 304 Part II, prosecution is
necessarily required to prove that death of person in question was caused by
act of the accused and he fully knew that such act of him is likely to cause
death. In the case at hand, death of nine workers was not caused by any act
of the petitioners, who admittedly at relevant time were not present at Baddi,
rather, death of workers caused on account of rash and negligent act of co-
accused Harish Chander, who was assigned duty to heat up the chemical.
An attempt has been made by prosecution to invoke Section 304, Part II
against petitioners on the ground that there was disorderly stacking of drums
containing inflammable substance in the passage leading to the emergency
exit, but having taken note of the fact that entire work of operation as well
as manufacturing was being seen/handled by Plant Head and Assistant
2026:HHC:29300
24
Plant Head, namely Vinod Kumar and Chandrashekhar, who are also
accused, petitioners, who at relevant time were sitting at Ratlam, cannot be
held liable for any act of negligence of co-accused. Though there is nothing
on record to suggest that petitioners had any knowledge with regard to
stacking of drums containing inflammatory substance on the passages
leading to emergency exit, but even if it is presumed that they had knowledge
of stacking of inflammable substance on the passage, that would not be
sufficient to infer that they had also knowledge that their act of stacking
drums in the passage leading to emergency exit would cause death of
workers. Moreover, it has specifically come in evidence that at the time of
unfortunate accident of fire, more than 90 workers were working in the
factory, out of which majority of workers were able to come out using
emergency exit/corridors. It is only workers who were working in basement
at the relevant time got trapped on account of huge amount of smoke.
29. Moreover, this Court finds that the factory, namely M/s N.R.
Aromas, had been manufacturing perfumes, for which there is a requirement
of flammable chemicals. It is none of the case of prosecution that
management had stored inflammatory substance, other than substance
which actually required for manufacturing of perfume, for which necessary
permissions already stood granted to the afore company. Act of stacking
inflammatory substance for manufacturing the perfume in the case at hand
cannot be otherwise said to be act of negligence, if any, on the part of
2026:HHC:29300
25
management. There is nothing on record to attribute any act or conduct
which remotely suggests that act of petitioners concerned was 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 it likely to cause death. There is also
nothing on record which prima facie shows that petitioners are guilty of
culpable homicide and that act allegedly committed by them is culpable
homicide. There is nothing on record to indicate that the factory was being
run by the petitioners with the knowledge that such running of factory was
likely to cause death or injuries. Fact of merely storage of inflammatory
chemicals would not suggest that petitioners had any knowledge that it was
likely to cause death of human beings. Moreover, this Court cannot lose sight
of the fact that factory is in operation for last 16 years, i.e. 2006 onwards
and from that date till date of alleged incident, no unfortunate incident ever
happened. It is also not in dispute that even on the date of the alleged
incident, specialized work of heating up the chemical was assigned to a
person who was expert in that.
30. For the reasons and discussion made hereinabove, this Court is
persuaded to agree with Mr. Kochhar, learned Senior Counsel representing
petitioners, that no case much less under Section 304 Part II is made out
against the petitioners, for the reason that no cogent and convincing evidence
has been collected on record by the prosecution, suggestive of the fact that
petitioners being partners/Directors of firm had intention/knowledge that
2026:HHC:29300
26
act of making perfume by using aromatic chemical can cause death of person
responsible for manufacture of such perfume. It is not in dispute, rather
stands clearly established on record that management of factory in question
had made adequate arrangements for the safety and security of workers
working in company by providing emergency exit doors as well as placing fire
extinguishers at the appropriate places. At the cost of repetition, it is
observed that many workers saved their lives by using emergency exit doors
and the corridors. Hence, this Court is not persuaded to agree with Mr. Rajan
Kahol, learned Additional Advocate General, that workers trapped in fire were
unable to use exit doors and corridors on account of disorderly stacking of
the drums containing highly inflammable chemical.
31. Entire case of the prosecution against the petitioners herein is
that petitioners herein were responsible for disorderly stacking of drums, but
as has been observed hereinabove, job of stacking drums and storing
chemicals in factory was not of the petitioners, who admittedly sit in head
office at Ratlam, rather, responsibility of storage, if any, in the factory
premises was of the co-accused namely Vinod Kumar and Chandrashekhar,
being Plant Manager and Assistant Plant Manager. Moreover, act of mere
stacking of drums containing highly inflammable chemical in factory
premises cannot be a ground to conclude knowledge of the petitioners that
act of storing chemical, which is otherwise required for production of
perfume, would cause death of the workers working in the premises. It also
2026:HHC:29300
27
emerges from the investigation that safe houses were available on first and
second floor of the factory premises for storing the highly inflammable
chemical. Duty of management was only to provide safe houses for storing of
chemical, which admittedly were provided, as has come in the investigation.
Whether on the date of unfortunate incident, fact of drums containing
inflammable substance were stored in safe-houses or corridors, cannot be
said to be in the knowledge of management, which admittedly, at relevant
time, used to sit at Ratlam, Madhya Pradesh.
32. Reliance is placed upon judgment dated 07.03.2025 passed by
Hon’ble Apex Court in case titled Yuvraj Laxmilal Kanther and Another Vs.
State of Maharashtra, Criminal Appeal No.2356 of 2024. In afore case, two
contract employees were working on a shop front signboard at a height of 12
feet using an iron ladder provided to them. Unfortunately, while working,
they got electrocuted, fell and sustained head and arm injuries and were
declared dead on arrival at the hospital. FIR was registered alleging that the
accused, who was an Interior Decorator Contractor and Store Operation
Manager, failed to provide safety gear (safety shoes, safety belts, rubber
shoes, helmets, etc.) to the workers despite knowing the life risk involved.
Judicial Magistrate First Class opined that a case under Section 304, Part II
is made out and accordingly committed the case to the Session Court.
Learned Additional Sessions Judge and subsequently the High Court
dismissed the discharge application filed by the accused under Section 227
2026:HHC:29300
28
Cr.P.C. Finally, the matter came before the Hon’ble Apex Court where issue
arose for the consideration that whether non-provision of safety equipment
to workers operating at a height attracts the ingredients of Section 304, Part
II IPC (culpable homicide not amounting to murder). Hon’ble Apex Court held
that Section 304 Part II is attracted when an act is done with the knowledge
that it is likely to cause death, but without any intention to cause death. The
foundational requirement is the commission of culpable homicide under
Section 299 IPC, which demands a positive act with intention or knowledge.
Relevant Paras of afore judgment read as under:
“12. We have noted above that the appellants have been charged for
committing offence under Section 304 Part II IPC read with Section 34
IPC. Since Section 34 IPC covers common intention, the substantive
charge against the appellants is under Section 304 Part II IPC which
reads as under:
Punishment for culpable homicide not amounting to murder –
Whoever commits culpable homicide not amounting to murder shall
be punished 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.
12.1. The ingredients constituting an offence under Section 304 Part
II IPC are as follows:
(i) he must commit culpable homicide not amounting to murder;
(ii) the act must be done with the knowledge that it is likely to
cause death;
(iii) but such act is done without any intention to cause death
or to cause such bodily injury as is likely to cause death.
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29
12.2. Therefore, the first important expression is ‘culpable homicide
not amounting to murder’. Culpable homicide is defined in Section 299
IPC. It says that whoever causes death by doing an act with the
intention of causing death or with the intention of causing such bodily
injury as is likely to cause death or with the knowledge that he is likely
by such act to cause death, commits the offence of culpable homicide.
12.3. All culpable homicides are murders except in the cases excepted
under Section 300 IPC. Thus, except the cases specifically exempted
under Section 300 IPC, all other acts within the meaning of Section
299 IPC would amount to committing the offence of culpable homicide.
However, what is important to note is that for committing the offence
of culpable homicide, a positive act must be done by the doer with the
intention that such act would cause death or cause such bodily injury
as is likely to cause death or he having the knowledge that by such an
act, death may be caused. What, therefore, is significant is that the
doer of the act must have the intention of causing death or the
intention of causing such bodily injury as is likely to cause death or
has the knowledge that by doing such an act he is likely to cause
death. Therefore, to commit the offence of culpable homicide, intention
or knowledge is of crucial importance.
12.4. Coming back to Section 304 Part II IPC, we find that the said
section would be attracted if anyone commits culpable homicide not
amounting to murder 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. Therefore, the
requirement of Section 304 Part II IPC is that the doer must have the
knowledge that the act performed is likely to cause death or to cause
such bodily injury as is likely to cause death but without any intention
to cause death. Thus, the basic ingredient of Section 304 Part II IPC is
presence of knowledge and absence of intention. The doer must have
the knowledge that the act performed by him would likely cause death
etc but there should not be any intention to cause death.
2026:HHC:29300
30
13. This being the legal framework, let us now deal with the charge
against the appellants taking the same as correct. According to the
prosecution and accepted by the Trial Court and the High Court, the
two accused persons had not taken proper care and caution by
providing safety shoes, safety belt etc to the two employees though
they were asked to perform the job of working on the sign board as
part of decorating the front side of the shop which was approximately
at a height of 12 feet from the ground level. The accused persons had
provided only an iron ladder to the two employees but while working
they were struck by electricity as a result of which they suffered
electrocution and fell down. They suffered multiple injuries which led
to their death. Therefore, both the accused persons were declared to
be responsible for the unnatural death of the two deceased employees.
14. Even if we take the allegation against the appellants as correct,
we are afraid no prima facie case can be said to have been made out
against the appellants for committing an offence under Section 304
Part II IPC. From the record of the case, it is evident that there was no
intention on the part of the two appellants to cause the death or cause
such bodily injury as was likely to cause the death of the two deceased
employees. It cannot also be said that the appellants had knowledge
that by asking the two deceased employees to work on the sign board
as part of the work of decoration of the frontage of the shop, they had
the knowledge that such an act was likely to cause the death of the
two deceased employees. As such, no prima facie case of culpable
homicide can be said to have been made out against the appellants. If
that be so, the subsequent requirement of having knowledge that the
act was likely to cause the death but not having any intention to cause
death would become irrelevant though we may hasten to add that
nothing is discernible from the record of the case that the appellants
had the knowledge that by asking the two employees to work on the
sign board would likely cause their death or cause such bodily injury
as is likely to cause their death.
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31
15. Therefore, the basic ingredients for commission of offence under
Section 304 Part II IPC are absent in the present case.”
33. In this regard, reliance is also placed upon judgment passed by
Hon’ble Apex Court in case titled as Keshub Mahindra and Others Vs. State
of Madhya Pradesh along with other connected Appeals 1996 (6) SCC 129.
In the aforesaid case, Hon’ble Apex Court had an occasion to deal with the
accused named in Bhopal Gas Tragedy case, where on account of gas
leakage, more than 3000 people lost their lives. In the aforesaid case decided
by the Hon’ble Apex Court, highly dangerous and toxic gas called MIC
escaped from the tank of the Bhopal Factory, as a result thereof, 3,828
human beings lost their lives, whereas permanent injuries were caused to
18922 human beings, Police after having noticed aforesaid incident of gas
leakage, registered case against the Management as well as other officials
working at the Plant in Bhopal under Section 304-A IPC, which subsequently
came to be converted to 304 Part II. Hon’ble Apex Court while hearing
criminal appeals filed by some of the officials specifically elaborated upon the
scope of Section 304 Part II and held as under:
“20. It, therefore, becomes necessary for us now to address ourselves
on this moot question. As noted earlier the main charge framed against
all these accused is under Section 304 Part II IPC. So far as Accused
2, 3, 4 and 12 are concerned they are also charged with offences under
Sections 326, 324, IPC and 429 IPC read with Section 35 IPC while
Accused 5 to 9 are charged substantially with these offences also. We
shall first deal with the charges framed against the accused concerned
under the main provisions of Section 304 Part II IPC. A look at Section
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32304 Part II shows that the accused concerned can be charged under
that provision for an offence of culpable homicide not amounting to
murder and when being so charged if it is alleged that the act of the
accused concerned 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 the charged offences would fall under
Section 304 Part II. However before any charge under Section 304 Part
II can be framed, the material on record must at least prima facie show
that the accused is guilty of culpable homicide and the act allegedly
committed by him must amount to culpable homicide. However, if the
material relied upon for framing such a charge against the accused
concerned falls short of even prima facie indicating that the accused
appeared to be guilty of an offence of culpable homicide Section 304
Part I or Part II would get out of the picture. In this connection we have
to keep in view Section 299 of the Penal Code, 1860 which defines
culpable homicide. It lays down that:”Whoever causes death by doing
an act with the intention of causing death, or with the intention of
causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the
offence of culpable homicide.”Consequently the material relied upon
by the prosecution for framing a charge under Section 304 Part II must
at least prima facie indicate that the accused had done an act which
had caused death with at least such a knowledge that he was by such
act likely to cause death. The entire material which the prosecution
relied upon before the trial court for framing the charge and to which
we have made a detailed reference earlier, in our view, cannot support
such a charge unless it indicates prima facie that on that fateful night
when the Plant was run at Bhopal it was run by the accused concerned
with the knowledge that such running of the Plant was likely to cause
deaths of human beings. It cannot be disputed that mere act of
running a Plant as per the permission granted by the authorities would
not be a criminal act. Even assuming that it was a defective Plant and
it was dealing with a very toxic and hazardous substance like MIC the
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33mere act of storing such a material by the accused in Tank No. 610
could not even prima facie suggest that the accused concerned thereby
had knowledge that they were likely to cause death of human beings.
In fairness to the prosecution it was not suggested and could not be
suggested that the accused had an intention to kill any human being
while operating the Plant. Similarly on the aforesaid material placed
on record it could not be even prima facie suggested by the prosecution
that any of the accused had a knowledge that by operating the Plant
on that fateful night whereat such dangerous and highly volatile
substance like MIC was stored they had the knowledge that by this
very act itself they were likely to cause death of any human being.
Consequently in our view taking the entire material as aforesaid on its
face value and assuming it to represent the correct factual position in
connection with the operation of the Plant at Bhopal on that fateful
night it could not be said that the said material even prima facie called
for framing of a charge against the accused concerned under Section
304 Part II IPC on the specious plea that the said act of the accused
amounted to culpable homicide only because the operation of the Plant
on that night ultimately resulted in deaths of a number of human
beings and cattle. It is also pertinent to note that when the complaint
was originally filed suo motu by the police authorities at Bhopal and
the criminal case was registered at the Police Station Hanumanganj,
Bhopal as Case No. 1104 of 1984 it was registered under Section 304-
A of the IPC. We will come to that provision a little later. Suffice it to
say at this stage that on the entire material produced by the
prosecution in support of the charge it could not be said even prima
facie that it made the accused liable to face the charge under Section
304 Part II. In this connection we may refer to a decision of the
Calcutta High Court to which our attention was drawn by the learned
Senior Counsel, Shri Rajendra Singh for the appellants. In the case of
Adam Ali Taluqdar v. King-Emperor [AIR 1927 Cal 324 : 31 CWN 314
: 28 Cri LJ 334] a Division Bench of the Calcutta High Court made the
2026:HHC:29300
34following pertinent observations while interpreting Section 304 Part II
read with Section 34 IPC:
“Although to constitute an offence under Section 304, Part 2,
there must be no intention of causing death or such injury as
the offender knew was likely to cause death, there must still
be a common intention to do an act with the knowledge that it
is likely to cause death though without the intention of causing
death. Each of the assailants may know that the act, they are
jointly doing, is one that is likely to cause death but have no
intention of causing death, yet they may certainly have the
common intention to do that act and therefore Section 34 can
apply to a case under Section 304, Part 2.”
Once we reach the conclusion that the material produced by the
prosecution before the trial court at the stage of framing of charges did
not even prima facie connect the accused with any act done with the
knowledge that by that act itself deaths of human beings would be
caused the accused could not be even charged for culpable homicide
and consequently there would be no question of attracting Section 304
Part II against the accused concerned on such material. When on the
material produced by the prosecution no charge could be framed
against any of the accused under Section 304 Part II there would
remain no occasion to press in service the applicability of Section 35
IPC in support of such a charge for those accused who were not
actually concerned with the running of the Plant at Bhopal, namely,
Accused 2, 3, 4 and 12.
34. In the aforesaid judgment, Hon’ble Apex Court categorically
concluded that Section 304 Part II IPC applies when a person causes death
without any intention to cause death or such bodily injury as is likely to
cause death, but with the knowledge that the act is likely to cause death.
2026:HHC:29300
35
Meaning thereby that there must be an intention to do the act, even though
there need not be an intention to cause death. The essential element is
knowledge of the likely consequence, not intention. In the case before the
Hon’ble Apex Court, case of the prosecution was that defects responsible for
leakage of poisonous gas was very much in the knowledge of the
Management, but yet no steps were taken to cure them. Hon’ble Apex Court
having perused evidence collected on record, specifically concluded that
persons responsible for the management of the Company had no definite
knowledge about the defect in the functional plant, as such, they otherwise
could not be charged with offence under Section 304 Part II.
35. Aforesaid judgment passed by Hon’ble Apex Court in Union
Carbide case subsequently came to be followed in number of cases. In one of
the cases titled as K.P. Ramaswamy Vs. Inspector of Police, Perundurai
Police Station, Madras High Court specifically dealt with Section 304 Part
II while considering the prayer made by the accused under Section 438
Cr.P.C. for anticipatory bail, which reads as under:
“23. In Keshub Mahindra v. State Of M.P., 1996 SCC (Cri) 1124, on
the night between 2.12.1964 & 3.12.1984, there was leakage of toxic
gas known as MIC from the Union Carbide Company’s Unit situate in
Bhopal and the Bhopal gas disaster took place. Thousands and
thousands of innocent persons and animals have lost their lives. Many
got maimed. After investigation, Police filed Final Report for offences
under Section 304 II, 326, 324, 429 r/w 35, I.P.C as against certain
officials of the Company, who were directly involved in the day-to-day
operation of the Company’s unit in Bhopal and also against A-2,
namely, Keshub Mahindra/Managing Director, who was residing in
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36Bombay. Ultimately, A-2 questioned the framing of charge under
Section 304 II, I.P.C as against him. The Hon’ble Apex Court quashed
the charge under Section 304 II, I.P.C as against him on the ground
that there was no commission of any act by him which has caused the
death of the Bhopal gas victims.
24. In the said Bhopal Gas Tragedy case, the Hon’ble Apex Court
observed as under:
“20. It, therefore, becomes necessary for us now to address
ourselves on this moot question. As noted earlier, the main
charge framed against all these Accused is under Section 304
Part II, I.P.C So far as Accused Nos. 2, 3, 4 & 15 are concerned
they are also charged with offences under Sections 326, 324,
I.P.C & 429, I.P.C, read with Section 35, I.P.C while Accused 5
to 9 are charged substantially with these offences also. We
shall first deal with the charges framed against the concerned
Accused under the main provisions of Section 304 Part II, I.P.C
A look at Section 304, Part II shows that the concerned
Accused can be charged under that provision for an offence of
culpable homicide not amounting to murder and when being
so charged if it is alleged that the act of the concerned Accused
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 the charged offences would
fall under Section 304 Part II. However, before any charge
under Section 304, Part II can be framed, the material on
record must at least prima facie show that the Accused is
guilty of culpable homicide and the act allegedly committed by
him must amount to culpable homicide. However, if the
material relied upon for framing such a charge against the
concerned Accused falls short of even prima facie indicating
that the Accused appeared to be guilty of an offence of culpable
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37homicide Section 304 Part I or Part II would get out of the
picture. In this connection we have to keep in view Section 299
of the Indian Penal Code which defines culpable homicide. It
lays down that, “whoever causes death by doing an act with
the intention of causing death, or with the intention of causing
such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death,
commits the offence of culpable homicide”. Consequently the
material relied upon by the prosecution for framing a charge
under Section 304 Part II must at least prima facie indicate
that the Accused had done an act which had caused death
with at least such a knowledge that he was by such act likely
to cause death. The entire material which the prosecution
relied upon before the Trial Court for framing the charge and
to which we have made a detailed reference earlier, in our view,
cannot support such a charge unless it indicates prima facie
that on that fateful night when the plant was run at Bhopal it
was run by the concerned Accused with the knowledge that
such running of the plant was likely to cause deaths of human
beings. It cannot be disputed that mere act of running a plant
as per the permission granted by the authorities would not be
a Criminal act. Even assuming that it was a defective plant
and it was dealing with a very toxic and hazardous substance
like MIC the mere act of storing such a material by the Accused
in Tank No. 610 could not even prima facie suggest that the
concerned Accused thereby had knowledge that they were
likely to cause death of human beings. In fairness to
prosecution it was not suggested and could not be suggested
that the Accused had an intention to kill any human being
while operating the plant. Similarly on the aforesaid material
placed on record it could not be even prima facie suggested by
the prosecution that any of the Accused had a knowledge that
by operating the plant on that fateful night whereat such
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38dangerous and highly volatile substance like MIC was stored
they had the knowledge that by this very act itself they were
likely to cause death of any human being.”
36. In aforesaid judgment, Madras High Court held that mere act of
running of Plant, as per permission by the authorities, would not be a
criminal act and even if it is presumed that it was a defective plant and it
was dealing with very toxic and hazardous substance like MIC, the mere act
of storing such a material by the accused in tank could not prima facie
suggest that concerned accused had knowledge that storage of such is likely
to cause death of human beings.
37. While placing reliance upon aforesaid judgment passed by
Hon’ble Apex Court in Shamsher Singh (supra), High Court of Madhya
Pradesh in case titled as Sagar Yadav Vs. State of Madhya Pradesh in Misc.
Criminal Case No.48844 of 2022, decided on 23.11.2022, held that once
Factory was being run with all due permission and approval of the
authorities and service approval was issued by the authority prior to the
incident, coupled with the fact that adequate measures for fire safety were
taken, no case under Section 304 Part II is made out, rather, case if any, can
be made out under Section 285 and 304-A of IPC.
38. In a case titled as Rohit Suri and Others Vs. State of
Himachal Pradesh, Criminal Misc. Petition (Main) No.532 of 2022
decided on 26.04.2022, this Court had an occasion to deal with the scope
of Section 304 Part II, where it was held as under:
2026:HHC:29300
39“9. Investigation in the case is complete and nothing remains to be
recovered from the bail petitioners. It is also not in dispute that bail
petitioners are in judicial custody. There is another aspect of the
matter that at the first instance case under Sections 286, 337, 304A
of IPC and Section 9 (C) of Explosives Act 1884 was registered against
the bail petitioners and other persons named in the FIR, but
subsequently, police after having taken note of the fact that explosives
substance was being made in the factory without there being license
deleted the aforesaid Sections and re-registered the case against them
under Sections 304, 120B of IPC and Section 5 of the Explosives
Substance Act 1908. Precise case of the prosecution in the case at
hand is that crackers were being manufactured unauthorizedly in the
premises where fire broke, but definitely there is nothing on record
which can compel this Court to conclude/infer that explosives
substance or special category explosive substance as defined in the
Explosives Substance Act, 1908 were being manufactured or stored in
the premises. Aforesaid observation made by this court gains
significance in view of the statement made by the complainant under
Section 154 of the Cr.PC that there was no provision/facility provided
in the factory for manufacturing of crackers. If it is so, prosecution is
under obligation to prove manufacturing, if any, of the explosives
substance in the premises in question to attract the provisions
contained under Section 5 of the Explosive Substances Act, which
clearly provide that any person who makes or knowingly has in his
possession or under his control any explosive substance or special
category explosive substance without there being any authority shall
be liable for imprisonment, which may extend to ten years. Status
report filed by the respondent-State as well as record made available
to this court nowhere reveals that explosives substance as defined
under Section 2 of the Act ibid ever came to be recovered from the
premises in question. Otherwise also, to attract the provisions
contained under Section 304 of IPC, which provides for punishment
for culpable homicide not amounting to murder, prosecution is
2026:HHC:29300
40required to prove that that bail petitioners caused death of workers
working in the factory by doing an act with the intention of causing
death or causing such bodily injury as is likely to cause death or if the
act done with the knowledge that person is likely by such act to cause
death. In the case at hand, though investigating agency has collected
on record material to prove that factory was being run unauthorizedly,
but definitely at this stage, there is no evidence collected on record to
conclude that the bail petitioners had any intention or knowledge to
cause death of the persons working in the factory. Whether death of
the workers occurred on account of negligence of the bail petitioners,
whereby they failed to provide /take adequate safety measures for their
safety, is a question needs to be determined in the totality of facts the
circumstances of the case.”
39. Reliance is also placed upon the judgment passed by the Hon’ble
Apex Court in Shantibhai J. Vaghela and Another Vs. State of Gujarat
and Others, (2012) 13 SCC 231. In afore case, two young children went
missing from Asaram Bapu Ashram in Gujarat. Their decomposed bodies
were later recovered from the bed of the Sabarmati River. Parents alleged that
the Ashram authorities failed to conduct a prompt search, delayed informing
the Police, advised tantric remedies and failed to secure access gates between
the Ashram and the riverbed. An FIR was registered against seven Ashram
inmates alleging Section 304 read with Section 34 IPC and Section 23 of the
Juvenile Justice Act. High Court quashed the FIR to the extent of Section
304 IPC, while allowing the investigation under Section 304A IPC and the
Juvenile Justice Act to continue. Parents and State appealed before the
2026:HHC:29300
41
Hon’ble Apex Court wherein issue came to be decided whether omissions,
lapses or delays on the part of Ashram authorities in searching for missing
children and securing premises make out a prima facie case of culpable
homicide under Section 304 IPC or not. Hon’ble Apex Court, after having
examined the entire case, held that the commission of culpable homicide
requires some positive act on the part of the accused, as distinguished from
silence, inaction, or a mere lapse. Hon’ble Apex Court further held that the
allegation of delay in lodging complaints, failure to conduct immediate
searches, or failure to guard access to the riverbed constitute omission
lapses, not a positive act done with the intention or knowledge to cause
death. Relevant Paras of afore judgment read as under:
“24. Section 299 IPC defines culpable homicide as causing of death by
doing an act with the intention of causing of death or with the intention
of causing such bodily injury as is likely to cause death or with the
knowledge that by such act death is likely to be caused. Under Section
300 IPC all acts of culpable homicide amount to murder except what
is specifically covered by the exceptions to the said Section 300.
Section 304 of the Penal Code provides for punishment for the offence
of culpable homicide not amounting to murder.
25. Commission of the offence of culpable homicide would require
some positive act on the part of the accused as distinguished from
silence, inaction or a mere lapse. Allegations of not carrying out a
prompt search of the missing children; of delay in the lodging of formal
complaint with the police and failure to take adequate measures to
guard the access from the ashram to the river, which are the principal
allegations made in the FIR, cannot make out a case of culpable
homicide not amounting to murder punishable under Section 304 IPC.
2026:HHC:29300
42To attract the ingredients of the said offence something more positive
than a mere omission, lapse or negligence on the part of the named
accused will have to be present. Such statements are conspicuously
absent in the FIR filed in the present case.
26. A reading of the relevant part of the opinion of the Forensic
Medicine Department of B.J. Medical College, Ahmedabad would go to
show that possibility of death of the children by drowning cannot be
ruled out. Expert opinion available on record indicates that mere
absence of diatoms will not exclude the aforesaid possibility. The
relevant part of the post-mortem report, as extracted, indicates
presence of mud in the trachea of the children which fact also points
to the possibility of death by drowning. The absence of any injuries on
the body of the deceased; the attack on the bodies by wild animals and
the possibility of the taking away of the missing organs of the deceased
Dipesh by wild animals are all mentioned in the post-mortem report.
The said facts cannot be excluded or ignored while construing the
prima facie liability of the accused named in the FIR. The absence of
any positive material to show the practice of black magic in connection
with the incident is another significant fact that has to be taken note
of.”
40. Reliance is also placed upon Dr. Mani Kumar Chhetri Vs. State
of West Bengal, 2018 STPL 3671 Calcutta. In afore case, a major fire broke
out in the upper basement of the Annexe-I building of AMRI Hospital,
Kolkata, leading to asphyxia and the death of 92 admitted patients.
Investigation revealed severe safety violations, i.e. illegal conversion of the
upper basement into storerooms/pharmacy, storing combustible materials
(cotton, plywood, paper), failure to install fire stops in electrical shafts
(allowing toxic smoke to billow directly into patient wards via central AC),
2026:HHC:29300
43
and failure of automatic sprinklers/alarm systems. It also came to be alleged
that the hospital enforced an internal practice named “Code Brown”, which
instructed staff to contain fires internally first and forbade calling external
fire services immediately. Besides above, it also came to be alleged that Dr.
Mani Kumar Chhetri, a nonagenarian medical professional, was the
Managing Director and a member of the Managing Committee supervising
day-to-day affairs. Trial Court framed charges under Section 304 Part
II/308/36 IPC. In afore background, following issues came to be framed for
adjudication by the High Court of Calcutta:
1. Can a Director/Managing Director be held criminally liable
under the IPC when the company itself is not impleaded as an
accused?
2. Does gross negligence and active suppression of fire risk
attract Section 304 Part II/308, read with Sections 35 and 36
IPC, or only Section 304A IPC?
41. In afore case, it came to be held by the Calcutta High Court that
unlike special statutes, the IPC does not contain provisions for vicarious
liability, but liability here was based on the petitioner’s direct personal
dereliction of supervisory duty as Managing Director and a member of the
Managing Committee. He had active knowledge of non-compliance with fire
safety warnings and the conversion of the basement into hazardous stores.
Non-joinder of the company does not bar prosecution against an individual
Director for IPC offences. Calcutta High Court further held that when
2026:HHC:29300
44
individual acts and illegal omissions committed by multiple members of the
senior management cumulatively lead to a fatal consequence, each individual
is constructively responsible as if done by him alone. However, while dealing
with Section 304 Part II and Section 304 IPC, Calcutta High Court
categorically held that ‘knowledge’ under Section 299/304 Part II, requires
awareness of consequences with a degree of certainty or virtual certainty.
While the Senior Directors committed gross negligence under Section 304A
read with Section 35 and Section 36 IPC, their failure in a supervisory role
could not be directly imputed with actual knowledge that death was a certain
likelihood to sustain Section 304 Part II. Though High Court of Calcutta
upheld the rejection of the discharge prayer made at the behest of the
petitioner in that case, but it modified the charges against the petitioner to
Section 304A read with Section 35 and Section 36 IPC, along with West
Bengal Fire Services Act charges.
42. Reliance is further placed upon the judgment of the Hon’ble Apex
Court in Kurban Hussain Mohammedali Rangawalla v. State of
Maharashtra, AIR 1965 SC 1616, wherein the issue before the Hon’ble Apex
Court was whether criminal liability under Section 304A IPC can be fastened
in the absence of a direct and proximate causal connection between the
alleged negligent act and the death of the victims. The Hon’ble Court held
that, for attracting Section 304A IPC, the rash or negligent act of the accused
must be the causa causans, i.e., the direct, immediate and proximate cause
2026:HHC:29300
45
of death, and not merely a remote or indirect circumstance. Since the
immediate cause of the accident was the overflow and ignition of the
turpentine mixture and not any direct act of the proprietor, the conviction
under Section 304A IPC was held to be unsustainable. However, the
conviction under Section 285 IPC was maintained. Relevant Paras of the
judgment read as under:
“We may in this connection refer to Emperor v. Omkar Ram-
pratap [(1902) IV Bom LR 679] where Sir Lawrence Jenkins had to in-
terpret Section 304-A and observed as follows:
“To impose criminal liability 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
be the proximate and efficient cause without the intervention of
another’s negligence. It must be the cause causans; it is not
enough that it may have been the cause sine qua non.”
This view has been generally followed by High Courts in India and is
in our opinion the right view to take of the meaning of Section 304-A.
It is not necessary to refer to other decisions, for as we have already
said this view has been generally accepted. Therefore the mere fact
that the fire would not have taken place if the appellant had not al-
lowed burners to be put in the same room in which turpentine and
varnish were stored, would not be enough to make him liable under
Section 304-A, for the fire would not have taken place, with the result
that seven persons were burnt to death, without the negligence of Ha-
tim. The death in this case was therefore in our opinion not directly
the result of a rash or negligent act on the part of the appellant and
was not the proximate and efficient cause without the intervention of
another’s negligence. The appellant must therefore be acquitted of the
offence under Section 304-A.”
2026:HHC:29300
46
43. Reliance is placed upon the judgment of the Hon’ble Apex Court
in Shamsher Khan v. State (NCT of Delhi), (2000) 6 SCC 595, wherein the
issue before the Hon’ble Apex Court was whether the manufacture or storage
of explosive substances in violation of statutory requirements, by itself, is
sufficient to attract Section 304 Part II IPC on the ground that the accused
possessed the requisite knowledge that death was likely to occur. The Hon’ble
Court held that to constitute an offence under Section 304 Part II IPC, the
prosecution must establish that the accused consciously performed the act
with the knowledge that it was likely to cause death. Mere engagement in a
hazardous activity or violation of statutory provisions, without proof of the
specific act which triggered the explosion and the requisite mens rea, would
not satisfy the ingredients of Section 304 Part II IPC. Accordingly, the
conviction under Sections 304 Part II and 308 IPC was set aside. Relevant
paras of the judgment read as under:
“10. The appellant was convicted under Sections 304 and 308 IPC. Both
the offences relate to commission and attempt to commit culpable homi-
cide respectively. So culpable homicide is the common factor in both the
courts. Section 299 of the Penal Code, 1860 defines culpable homicide,
which has three alternative requirements. They are:
1. doing an act with the intention of causing death of a person, or
2. doing an act with the intention of causing such bodily injury as
is likely to cause such death, or
3. doing an act with the knowledge that he is likely by such an act
to cause death of another person.
2026:HHC:29300
47
11. Learned counsel for the respondent State made an endeavour to bring
the case within the ambit of the third alternative, as the case cannot
possibly be brought under any of the other two. The act proved to have
been committed by the appellant along with Babu Khan in this case is
manufacture of explosive substances like bombs. Hence what is to be
established is, the above act must have been done with the knowledge
that such act by itself was likely to cause death. If some other act had
intervened which the offender did not do consciously which triggered the
explosions that could not be counted as the act for that offender. No
evidence had been let in by the prosecution to show that mere
manufacture of such bombs is likely to cause death of any person, nor
has any evidence let in for showing that the appellant had the knowledge
that by manufacturing bombs death would possibly be caused to any
human being without any other act being done.
12. We may also point out that the prosecution has not brought out any
circumstance by which the Court could remotely attribute knowledge to
the appellant that by manufacturing and possessing bombs death of any
person was a likely consequence. By manufacturing a bomb alone no one
can normally think that it would explode without anything more being
done. Here something more would have happened which caused the
explosion, what was that additional act is unknown to us. At any rate
there is no material to show that the appellant had done that additional
act.
13. In view of the aforesaid legal position we find no scope to bring the
proved facts within the ambit of Section 299 IPC. If so, the question of
culpable homicide would stand at bay. We, therefore, find it legally
difficult to confirm the conviction either for the offences under Section
304 or for Section 308 IPC. As a corollary we set aside the conviction and
sentence passed on the appellant in regard to those two counts.”
2026:HHC:29300
48
44. Reliance is further placed upon the judgment of the Hon’ble Apex
Court in Sanjay Dutt & Ors. v. State of Haryana, Criminal Appeal No. 11
of 2025 decided on 02.01.2025, wherein the issue before the Hon’ble Apex
Court was whether officers of a company can be prosecuted on the principle
of vicarious liability in the absence of an express statutory provision creating
such liability. The Hon’ble Court held that vicarious criminal liability cannot
be fastened upon the officers of a company unless the statute under which
prosecution is launched specifically creates such liability by way of a deeming
provision. In the absence of such an express provision, officers cannot be
prosecuted merely because they hold positions in the company or because
the alleged act was committed on behalf of the company. Relevant para of
the judgment reads as under:
“13. It is the cardinal principle of criminal jurisprudence that there is
no vicarious liability unless the statute specifically provides so. Thus,
an individual who has perpetrated the commission of an offence on
behalf of a company can be made an accused, if the statute provides
for such liability and if there is sufficient evidence of his active role
coupled with criminal intent. The primary responsibility is on the
complainant to make specific averments as are required under the law
in the complaint so as to make the accused vicariously liable. For
fastening criminal liability on an officer of a company, there is no
presumption that every officer of a company knows about the
transaction in question.”
45. Reliance is further placed upon the judgment of the Hon’ble
Punjab and Haryana High Court in S. Rajgopal v. State of Haryana,
2026:HHC:29300
49
2024:PHHC:044030, wherein the issue before the Hon’ble High Court was
whether directors of a company can be prosecuted under Section 304A IPC
for site-level operational lapses solely by virtue of their corporate positions
and whether the principle of vicarious liability is applicable to offences under
the IPC. The Hon’ble Court held that vicarious liability is a concept of civil
law and cannot be imported into criminal jurisprudence unless specifically
provided by statute. It was further held that directors cannot be prosecuted
under Section 304A IPC in the absence of any allegation establishing their
direct personal involvement, specific overt act or omission leading to the
accident. Accordingly, the supplementary chargesheet and summoning
orders against the directors were quashed. Relevant Paras of the judgment
read as under:
“19. Having heard the learned counsel for the parties and perused the
record with their able assistance, the following question emerges for
adjudication:-
“Whether the petitioners being Directors of L&T can be held
vicariously liable for the offence under Section 304-A of the
Indian Penal Code?”
20. The doctrine of vicarious liability is a civil concept and its
applicability in criminal cases is an exception rather than the rule. The
doctrine of vicarious liability originates from the maxim Qui Facit per
Alium Facit per, which means any act done by the servant in the
course of his employment is considered to be done by the master and
in principle, the master is also liable for the said act. In the Indian
context, a person can be held liable for the actions of another, with the
2026:HHC:29300
50
aid of provisions contained in Section 34, 120-B and 149 of the IPC.
As such, in criminal law, in certain cases, a person may be held liable
even though the actus reus was committed by another person.
21. However, the legal framework for imputing vicarious liability on
corporate entities is categorically provided for in a variety of
legislations such as the Income Tax Act, 1961, the Negotiable
Instruments Act, 1881, the Insecticides Act, 1968, the Drugs and
Cosmetics Act, 1940 and Essential Commodities Act, 1955 etc. A two
Judge Bench of the Hon’ble Supreme Court in Iridium India Telecom
Ltd. Vs. Motorola Inc. and others (2011) 1 SCC 74, considered the
issue of a Company being vicariously responsible for the criminal
actions of its employees and speaking through Justice S.S. Nijjar, took
the view that the intent and acts of the individuals who acted on behalf
of the Company would be paramount to establish the crime of cheating
against the Company and the contention that a corporate body is an
artificial person incapable of possessing criminal intent to commit the
said offence was categorically rejected. A Constitution Bench of the
Hon’ble Supreme Court in Standard Chartered Bank Vs. Directorate
of Enforcement (2005) 4 SCC 530, speaking through Justice K.G.
Balakrishnan for the majority view, further held that a Company is
liable to be prosecuted and punished for criminal offences emanating
from the actions of its Directors who were acting on behalf of the
Company.
22. However, in the present case, the culpable negligence is alleged to
have been committed in pursuance of the work awarded to L&T in
terms of the agreement dated 21.08.2012. The complainant has
sought to set up a case that L&T is an artificial legal entity which works
through its Directors and as such, the Directors are vicariously liable
for the culpable negligence of the Company.
23. In Ravindranath Bajpe (supra), a two Judge Bench of the Hon’ble
Supreme Court, speaking through Justice M.R. Shah, has crystallized
2026:HHC:29300
51
the jurisprudence on the issue of vicarious liability of the Directors
and management officials of a corporate entity. In the aforementioned
case, the accused were the Chairman of Board of Directors, Managing
Director and other management officials, who were charged with
offences under Sections 420, 427, 447, 506, 34 read with Section 120-
B of IPC alleging that all the accused possessed a criminal intent as
they shared a common intention while committing the said offences.
The Hon’ble Supreme Court referred to the judgments in Sunil Mittal
(supra), Maksud Saiyed (supra) and Pepsi Foods Ltd. (supra) and
formulated the following principles:-
1. No automatic vicarious liability in criminal offences:- It is the
fundamental principle of criminal jurisprudence that there is
no vicarious liability unless the statute specifically provides for
it, which is conspicuously lacking in the IPC. Thus, the
Directors or Management officials cannot be held vicariously
liable for an offence since mens rea can be attributed to them,
unless deeming statutory provisions for the same are provided
in the relevant statute.
2. Doctrine of ‘Alter Ego’:- If a group of persons responsible for
the conduct of business of the company has a criminal intent,
the same can be imputed to the body corporate and not vice
versa. Therefore, such person, who had committed the offence
on behalf of the Company can be made an accused along with
the Company only if there is specific attribution of his active
participation with culpable intent.
3. Issuance of summons:- Summoning an accused in a criminal
case requires application of judicial mind. The prima facie
assessment and finding with regard to the complicity of the
accused must be recorded by the Magistrate before summoning
them.
2026:HHC:29300
52
46. Reliance is further placed upon the judgment of the Hon’ble Apex
Court in Shiv Kumar Jatia v. State (NCT of Delhi), (2019) 17 SCC 193,
wherein the issue before the Hon’ble Apex Court was whether a Managing
Director can be prosecuted under Section 304A IPC merely by virtue of his
designation and whether the doctrine of alter ego permits fastening criminal
liability upon a company official without proof of his personal involvement.
The Hon’ble Court held that criminal prosecution of a director or officer of a
company can be sustained only where there are specific allegations
disclosing his active role, direct personal causation and the requisite mens
rea. The doctrine of alter ego cannot be applied in reverse to automatically
attribute the negligence of the company to its Managing Director. In the
absence of any allegation of a specific overt act or omission, the criminal
proceedings against the Managing Director were quashed. Relevant paras of
the judgment read as under:
“19. The liability of the Directors/the controlling authorities of
company, in a corporate criminal liability is elaborately considered by
this Court in Sunil Bharti Mittal [Sunil Bharti Mittal v. CBI, (2015) 4
SCC 609 : (2015) 2 SCC (Cri) 687] . In the aforesaid case, while
considering the circumstances when Director/person in charge of the
affairs of the company can also be prosecuted, when the company is
an accused person, this Court has held, a corporate entity is an
artificial person which acts through its officers, Directors, Managing
Director, Chairman, etc. If such a company commits an offence
involving mens rea, it would normally be the intent and action of that
individual who would act on behalf of the company. At the same time
it is observed that it is the cardinal principle of criminal jurisprudence
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53that there is no vicarious liability unless the statute specifically
provides for. It is further held by this Court, an individual who has
perpetrated the commission of an offence on behalf of the company
can be made an accused, along with the company, if there is sufficient
evidence of his active role coupled with criminal intent. Further it is
also held that an individual can be implicated in those cases where
statutory regime itself attracts the doctrine of vicarious liability, by
specifically incorporating such a provision.
47. Reliance in this regard is placed upon the judgment of the
Hon’ble Apex Court in S.K. Alagh v. State of Uttar Pradesh, (2008) 5 SCC
662, wherein the issue before the Hon’ble Apex Court was whether a
Managing Director or other corporate officers can be held vicariously liable
for offences under the IPC committed by or on behalf of a company. The
Hon’ble Court held that the Code does not contain any general provision
creating vicarious criminal liability in respect of directors, managers or
officers of a company. In the absence of a statutory provision or specific
allegations constituting personal involvement in the commission of the
offence, criminal liability cannot be fastened merely on account of the office
held by such person. Relevant Para of the judgment reads as under:
“16. The Penal Code, save and except some provisions specifically
providing therefor, does not contemplate any vicarious liability on the
part of a party who is not charged directly for commission of an
offence.”
48. Reliance in this regard is placed upon the judgment of the
Hon’ble Apex Court in Maksud Saiyed v. State of Gujarat & Ors., (2008) 5
2026:HHC:29300
54
SCC 668, wherein the issue before the Hon’ble Apex Court was whether the
Chairman, Managing Director and other Directors of a company can be
prosecuted under the IPC solely on account of their corporate designations.
The Hon’ble Court held that where the statute does not provide for vicarious
liability, criminal proceedings against company officials can be maintained
only upon specific allegations attributing individual overt acts and the
requisite mens rea. Mere holding of a high office in the company is
insufficient to justify criminal prosecution. Relevant para of the judgment
reads as under:
“13. Where a jurisdiction is exercised on a complaint petition filed in
terms of Section 156(3) or Section 200 of the Code of Criminal
Procedure, the Magistrate is required to apply his mind. The Penal
Code does not contain any provision for attaching vicarious liability on
the part of the Managing Director or the Directors of the Company
when the accused is the Company. The learned Magistrate failed to
pose unto himself the correct question viz. as to whether the complaint
petition, even if given face value and taken to be correct in its entirety,
would lead to the conclusion that the respondents herein were
personally liable for any offence. The Bank is a body corporate.
Vicarious liability of the Managing Director and Director would arise
provided any provision exists in that behalf in the statute. Statutes
indisputably must contain provision fixing such vicarious liabilities.
Even for the said purpose, it is obligatory on the part of the
complainant to make requisite allegations which would attract the
provisions constituting vicarious liability.”
49. True it is that in the case at hand, nine persons lost their lives
in the unfortunate incident of fire, but such fact cannot be a ground to charge
2026:HHC:29300
55
petitioners under Section 304, Part II and 308 for the detailed reasons made
hereinabove. At this stage, Mr. Rajan Kahol, learned Additional Advocate
General, attempted to argue that petition at hand is premature because
submissions made in the instant proceedings, oral or documentary, ought to
have been made by petitioners at the time of framing of charge. However, this
Court is not impressed with the aforesaid submission of learned Additional
Advocate General for the reason that scope of application of discharge is
completely different from the scope of petition for quashing of criminal
proceedings filed under Section 528 of BNSS. While arguing a case for
discharge, accused will not be in a position to rely upon the document, which
is not a part of the chargesheet. Similarly, ground of abuse of process of law
will not be available to accused at the time of arguing the application of
discharge. However, in a petition for quashing under Section 482 of Cr.P.C.
or under Article 226 of the Constitution of India, a wider challenge is
available including challenge on the ground of abuse of process of law. In
such proceeding, accused can rely upon documents which are not the part
of chargesheet. Reliance in this regard is placed upon judgment dated
29.11.2024 passed by Hon’ble Apex Court in case titled Mukesh and Others
v. State of Uttar Pradesh and Others, arising out of Special Leave Petition
(Criminal) No.12354 of 2024, which read as under:
“6. Learned counsel representing the State of Uttar Pradesh submits
that the High Court order does not call for interference as the
appellants have an efficacious remedy to challenge the order framing
charge by filing a revision application. We are shocked to note the
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56approach adopted by the State Government. What is suggested by the
State Government is that once charge-sheet is filed, accused cannot
do anything except to wait till the charge is framed and thereafter, can
file a revision application to challenge the order of framing charge.
7. At this stage, learned counsel appearing for the State submits that
possibly because a remedy of filing revision application against the
order framing charge was available, the High Court has dismissed the
petition. We do not see any such reason forthcoming from the
impugned order as the petition is dismissed as infructuous without
mentioning how it has become infructuous.
8. It is true that the appellants can apply for discharge. However, the
scope of application for discharge is completely different from the
scope of a petition for quashing the criminal proceedings. While
arguing a case for discharge, the appellants will not be in a position to
rely upon any document which is not the part of charge sheet. The
ground of abuse of process of law will not be available while arguing
discharge application. However, in a petition for quashing either under
Section 482 of the Code of Criminal Procedure, 1973 or under Article
226 of the Constitution of India, a wider challenge is available
including a challenge on the ground of abuse of process of law. In such
proceedings, the accused can rely upon documents which are not the
part of the charge-sheet. Therefore, we reject the submission made by
learned counsel appearing for the State. Though the submissions
made on behalf of the State have no basis, we have dealt with the same
elaborately to ensure that the same are not urged in a similar case.”
50. Reliance is also placed upon judgment dated 24.09.2025 passed
by Hon’ble Supreme Court in Anukul Singh Vs. State of Uttar Pradesh and
Another, Criminal Appeal No.4250 of 2025, which read as under:
8.4. Further reliance was placed on Anand Kumar Mohatta v. State
(NCT of Delhi)6, wherein this Court held that the High Court’s
jurisdiction under Section (2008) 13 SCC 678 (2019) 11 SCC
2026:HHC:29300
57706 482 Cr.P.C. is not confined to the stage of FIR and can be
exercised even after filing of charge sheet, to prevent abuse of process
of law. Similarly, in Mukesh and others v. State of UP and others7,
this Court held that the scope of Section 482 is wider than that of
discharge proceedings, as in quashing petitions the accused may rely
on documents outside the charge sheet to demonstrate abuse of
process of law.
51. Consequently, in view of detailed discussion made hereinabove,
as well as law taken into consideration, this Court finds merit in the
submission of the petitioners that no case much less under Sections 304,
Part II and 308 IPC is made out against them and as such, FIR, to the extent
of charging petitioners under aforesaid provisions of law, is quashed and set
aside, but with direction to Court below to proceed against the petitioners
under other provisions of law.
52. Needless to say, observation/finding given in the instant
judgment is only for the purpose of disposal of the present petitions and same
shall have no bearing on the main case, which shall be decided by the learned
trial court strictly on the basis of evidence as well as other material collected
on record by the prosecution.
The present petitions are allowed and disposed of in the
aforesaid terms. Pending application(s), if any, shall also stand disposed of.
July 09, 2026 (Sandeep Sharma),
Rajeev Raturi Judge
Digitally signed by RAJEEV RATURI
DN: C=IN, CN=RAJEEV RATURI, O=HIGH
COURT OF HIMACHAL PRADESH SHIMLA,
RAJEEV ST=Himachal Pradesh, postalCode=171001,
serialNumber=
953796d6b710fd2afc82c7ba37bf487d3538555
51c0227afb3662f48e1b7c3ca,
telephoneNumber=
RATURI
01caca2c767601b121016e4cef0d20c55478e5
0966db2af7ca3cb8ccec2635f6
Reason: I am the author of this document
Location: 12345678
Date: 2026.07.17 10:29:05+05'30'
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