Captain D'Souza vs Pashupati Nath Sarkar on 3 February, 1967

Calcutta High Court Captain D'Souza vs Pashupati Nath Sarkar on 3 February, 1967 Equivalent citations: 1968 CriLJ 405 Author: T Mukherji Bench: T Mukherji ORDER T.P. Mukherji, J. 1. The petitioner who is the accused in a case under Sections 301, I.P.C. and 214 of the Merchant Shipping Act pending before the Chief Presidency Magistrate of Calcutta prays for quashing the proceeding pending against him on the ground that the allegations made in the complaint made against him and the facts elicited in the enquiry under Section 202, Criminal P.C., do not make out an offence under Section 304A, I.P.C., and that there were no legal materials before the learned Magistrate which might justify his being summoned to stand his trial under Section 214 of the Merchant Shipping Act either. 2. The petitioner is the master of a sea going vessel S.S. Indian Exporter and one Sanat Kumar Sarkar, deceased, was the junior engineer in that ship. The ship arrived at Sand bead 110 miles off the part Calcutta on 5.10.1966 and had to wait there for pilotage. On 11.10.1966 Sanat Kumar reported for duty as usual and worked for sometime, but he was relieved early as he felt unwell. 3. On 12.10.1966 he bad temperature and nausea. On the 14th he was bedridden and his colleagues reported to the Chief Engineer and asked for his removal to Calcutta. The Chief Engineer reported the matter to the Captain and so did the second officer who was an unqualified Doctor on board that ship On the 15th the Chief Engineer saw Sanat kumar in his cabin and he was again requested by Sanatkumar's colleagues to arrange for his early removal to Calcutta. On the 16th Sanatkumar's condition became worse and he could not talk. The Chief Engineer of the ship was informed and the Captain was requested to arrange for shifting the tick man to Calcutta. Both the Chief Engineer and the Captain came and saw Sanatkumar, but nothing was done. 4. On the 17th the condition of Sanatkumar worsened and he had stiffening of legs and hands. On the following day the ship was piloted to Calcutta Port. The petitions? had radioed the shipping office and ft Doctor came to the port and removed Sanatkumar's so hospital On the 19th of October Sanatkumar died. His disease was diagnosed as infective hepatitis with hepatic coma with hepato revel failure. 5. In the petition of complaint it was further alleged that on and from 16.10.1966 at least five ships, including some belonging to the company to which the petitioner's ship belongs, left Sand bead daily for Calcutta besides pilot ships. No medical help was sought foe from any of those ships nor from the other ships which were standing by and no information of Sanatkumar's serious illness was sent to the office of the company or to the relations of the ailing man and that as a matter of fact no medical help was even sought to-be rendered to him although the same was available from the several other ships moored at Sandhead and repeated requests were made in that regard. 6. The learned Magistrate sent the complaint to the police for enquiry. The report of enquiry that was submitted to him revealed the correctness of the facts narrated above. It may be mentioned in this connection that the complaint further stated that during an enquiry before the shipping roaster into this matter, it had transpired that the petitioner did not make any log entry as to the illness of the said deceased as required under the law. 7. The learned Chief Presidency Magistrate on a consideration of the report of the enquiry issued warrant of arrest against the petitioner under Section 304A, I.P.C. and Section 214(e) of the Merchant Shipping Act 1958 read with Section 436 of that Act, It is the propriety of this order of the learned Magistrate that is challenged in this Rale.
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Captain D'Souza vs Pashupati Nath Sarkar on 3 February, 1967

8. Mr. Ajit Kumar Dutt, learned Advocate for the petitioner contends that the process ao far as it related to an offence under Section 304A, I.P.C. is wholly misconceived in as much as the passivity of his client in the matter of the treatment of the sick engineer can by no at retch of imagination be held to be the efficient and proximate cause of the latter's death. He conceded that an illegal omission may constitute an 'act' in law, bat when no legal duty is cast in the matter, failure to perform that duty is not illegal. As the petitioner in the case, according to Mr. Dutt, had no legal obligation to provide for the treatment of the sick person over and above the facility available in his ship, his failure to remove the ailing engineer to Calcutta for better treatment cannot be construed as an illegal omission in that regard. If the omission to act was not illegal that omission would not constitute an 'act' and however negligent the petitioner might have been in the matter of that omission it would not be a negligent act as contemplated in Section 304A, I.P.C. 9. The second contention of Mr. Dutt was that even if the petitioner might be held guilty of an illegal omission in the matter, the failure to remove him from the ship to Calcutta for better treatment not being the direct or proximate cause of his death would not constitute an offence under Section 304A, I.P.C. So far as the charge under Section 214(e) of the Merchant Shipping Act is concerned it was urged by Mr. Dutt that there being no material which may serve as a foundation therefor, the process so far as it relates to that charge is also liable to be quashed. 10. Section 304A, I.P.C. provides for punishment of the offence of causing death by a rash or negligent act. Under Section 32, I.P.C. an illegal omission would constitute an 'act' in law and under Section 43 of the Code the word 'illegal' is applicable to everything which is an offence or which is prohibited by law or which furnishes ground for a Civil action. An illegal omission thus is an 'act' under Section 304A, I.P.C. and may constitute an offence if it is negligent. 11. Mr. Choudhury appearing for the opposite party referred to Section 190 of the Merchant Shipping Act which according to him casts a duty on the master of a ship to do any lawful act proper and requisite to be done by him for preserving any person belonging to or on board the ship from danger to life. He contended that this section imposes on the master of a vessel the duty of taking proper and requisite action for preserving any person on board the ship from danger to life and in that regard, in the background of the facts of this case, it was the duty of the petitioner as the master of the ship to take all possible steps, care and precaution in the matter of the treatment of the ailing engineer and to try to arrange for his removal to calcutta for better treatment when such arrangement could easily have been made by him. 12. The relevant provision of Section 190 of the Merchant Shipping Act, runs as follows: "No Master, Seaman, or Apprentice belonging to an Indian Ship wherever it may be or to any other ship while in India shall knowingly.... ... ... ... ... (b) refuse or omit to do any lawful Act, proper and requisite to be done by him for preserving the ship from immediate lose, destruction or serious damage, or for preserving any person belonging to or on board the ship from danger to life or from injury. 13. It is true that the section appears under the heading "provisions as to Discipline", but on that account it cannot be said that it cannot apply when a question of treatment of a seaman is involved. The maintenance of discipline has many facets. Just as it involves imposition of measures for the discipline of the seamen on board a ship, it also imposes duties on the master of a vessel which tend to keep the seamen contended. When the employee feels that the employer will do everything for his contort and safety, he will be prone to maintain a disciplined conduct. Callousness and unsympathetic attitude of the employer breed indiscipline. When, therefore, Section 190 of the Act imposes on the master of a ship the duty of doing all lawful acts proper and requisite to be done for preserving persons belonging to or on board the ship from danger to life, it
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Captain D'Souza vs Pashupati Nath Sarkar on 3 February, 1967

demands of him to take every possible legal step and action galled for by the exigencies of the situation in that regard. 14. The ship of the petitioner did not have on board a qualified Doctor and it was not required in land to hare one, belong a cargo vessel. The second officer of the ship appears to have a smattering of knowledge in the matter of treatment of disease and that was the only medical help available to the seamen on board the ship in the event of illness. On the high seas it is indeed not possible to provide any better treatment that can be given by the second officer, but if in this case there were many other ships moored near by the ship of the petitioner and if five ships were daily moving to Calcutta under pilotage, it was certainly possible for the petitioner to ask for medical help from any of those ships or to request the vessels leaving for the port to take the ailing engineer on board. It was the duty of the petitioner to inform the shipping company at calcutta about the serious condition of the ailing engineer of his ship. All these would have been lawful acts which were proper and requisite to be done and which the situation undoubtedly demanded. 15. Mr. Dutt contended that the 'lawful' act in Section 190(b) means an act enjoined by law, but this contention is clearly unacceptable. An analysis of the section would show that Clause (a) thereof imposes on the Master, Seaman or Apprentice the negative duty of refraining from doing certain acts, and Clause (b) of the section impliedly imposes on the Master, Seaman and Apprentice certain positive duties the failure to perform which is made punishable under Section 486 of the Act. The duty that is imposed is amongst others the preservation of persons belonging to or on board the ship from danger to life and in the performance of this duty any lawful act is permissible. The term 'lawful' does not mean 'enjoined by law', but is used in the sense of the opposite of unlawful. The proper interpretation of the clause, thus, imposes on the Master of a vessel the duty mentioned above, but does not require of him the doing of an act that is not lawful in the performance of that duty. In my view Section 109(b) embodies a statutory obligation of the Master of a vessel to take all possible steps when a person on board the ship becomes sick, to arrange for his best available treatment for the purpose of preserving his life. Whether all possible steps that regard were taken in this case or not is a question of fact which has to be determined by the Magistrate, if and when the case comes to trial. 16. Coming back to Section 304A, Penal Code., if the failure of the petitioner to take all possible steps for the treatment of the ailing engineer be an illegal omission, as it may very well be, on the facts that may be proved in the case, he was guilty of a negligent act under the section. The next question is whether that negligent act was the direct and proximate cause of the death of the engineer. That it has to be so in order that) the negligent act may be culpable was not disputed by Mr. Choudbury, Mr. Dutt referred to the cases Eurban Hussain v. State of Maharashtra and State v. Chinubhai Huridas (1959) 61 Bom LR 1309 wherein the accused persons were held to be not guilty as the rash or negligent act concerned was not the direct and proximate cause of the deaths. Mr. Choudhury contended. however, that the illegal omission of the petitioner in the case was a culpably negligent act of his and that it was also the direct and proximate cause of the Engineer's death. In this connection, he referred to the case Ganesh Gir v. State of Madhya Pradesh . In that case the Overman and the Sirdar of a colliery were pro. secuted under Section 304A, Indian Penal Code, for having caused the death of two miners by the collapse of the roof of a portion of the colliery by their negligent act in failing to inspect the roof periodically as they were required to do under the mining rules and in taking additional measures to protect it against collapse. It was argued by Mr. Choudhury that in the two oases referred to by Mr. Dutt the accused were held not guilty because in between the negligent act and the death that was caused, there was intervention of a third factor which was the immediate cause of death and there is no such third factor present in this case. 17. In Ganesh Gir's case (ante) also the death was caused by the collapse of the roof, i.e. by a third factor but that collapse was induced by the negligent act of the Overman and the Sirdar. In the Supreme Court decision and also in the decision of the Bombay High Court above there was rashness or negligence of the accused and there was also a third factor which was responsible for the deaths, but that third factor was not induced by the culpably rash or negligent act of the
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Captain D'Souza vs Pashupati Nath Sarkar on 3 February, 1967

accused. In the case before us the immediate and proximate cause of the death of the engineer was Infective Hapatities. but that disease was not induced by the negligent act of the petitioner. The deceased died of a disease. It may or may not be that proper treatment at the right time might have saved him. As it is not humanly possible to say that the life must have been saved if the ailing engineer had been removed to Calcutta earlier, the death cannot be ascribed to the failure to remove him to Calcutta for treatment earlier. Far, therefore, from faying that such failure was the direct and proximate cause of the death, it is hardly possible to ascribe that death in law to that failure. The allegations of the fasts elicited at the enquiry do not, in my view, disclose an offence under Section 304A, Indian Penal Code. 18. Mr. Choudhury contended, however, that in any event the liability of the petitioner under Section 109(b) is there and the facts elicited at the if inquiry in support of the allegations in the petition of complaint do make out an offence under that section which is punishable under Section 486 of the Merchant Shipping Act. To this the argument of Mr. Dutt was that process having issued under Section 304A, Indian Penal Code, the question before this Court is whether there are material in support of an offence under that section and if such material are lacking that process must be quashed. This argument, in my view, is not sound. A Magistrate takes cognizance of an offence on the allegations made in the complaint under Section 200 of the Code and issues processes under Section 204. The charge in the case however has to be framed after evidence has been gone into, in respect of any offence which may be prima facie proved by that evidence and which the Magistrate may find to he triable by him. If the process is under Section 304A, Indian Penal Code, the Magistrate may very well frame a charge under Section 109 of the Merchant Shipping Act, read with Section 436 thereof if the evidence discloses earth an offence and this irrespective of whether an offence for which the process was issued is prima facie proved or not. In my view the petitioner may be liable to be tried on a charge under Section 109/43G of the Merchant Shipping Act, on the allegations made in the petition of complaint provided evidence in the case discloses the commission of that offence by him. Normally in such cases, the question of quashing the process does not arise. 19. Apart from that, the petitioner was also summoned under Section 214(e) of the Merchant Shipping Act. In the petition of complaint there is disclosure of this offence. It may be that apart from a statement of the complainant before the Magistrate there was no other material up to the date of issue of process in support of that allegation. But if the learned Magistrate was of the opinion that there was something in that allegation and that there was sufficient ground for proceeding on that allegation he was perfectly entitled to issue a process under the appropriate Easton of the Act. Even if therefore an offence under Section 304A, Indian Penal Code, cannot be said to have been constituted by the allegations on record and even if the process issued under that section be quashed, the petitioner will remain liable to be tried for an alleged offence under Section 214(e)/43G of the Merchant Shipping Act, and while under trial for that offence, a charge under Section 109 read with Section 436 of the Merchant Shipping Act, can be framed against him, if sufficient material in that regard be furnished by the evidence. 20. In the above view of the matter the Rule succeeds in part. The process issued against the petitioner so far as it relates to an alleged offence under Section 304A, Indian Penal Code, is in the particular facts and circumstances of this case quashed. The petitioner, however, will remain liable to be tried for an offence under Section 214(e)/486 of the Merchant Shipping Act. 21. The record be sent down as expeditiously as possible. The learned Chief Presidency Magistrate of Calcutta is directed to proceed with the trial in accordance with law and in the light of my above observation. Nothing stated in this Judgment should be taken as an expression of this Court's views on the allegations made in the petition of complaint or on the offences that the same may constitute.

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