Verma, J.:— Mr. Jagdish Swarup argued this case with great earnestness, fervour and zeal. The result was that the case was argued at much greater length than—as appeared ultimately—was warranted by its intrinsic merits.

The applicant, Chhotey Lal, was convicted on the 29th December, 1943, by a Magistrate of the first class under section 304A of the Indian Penal Code and was sentenced to rigorous imprisonment for three months and to a fine of Rs. 200 or rigorous imprisonment for a further period of three months in case of default in payment of the fine. He went up in appeal to the court of session and that court on the 5th February, 1944, upheld the conviction and the substantive sentence of imprisonment but set aside the sentence of fine and the alternative sentence of imprisonment in case of default in the payment of the fine. He thereupon filed this petition for revision in this Court. As all the necessary papers were not supplied until the 18th April, 1944, the petition, could not be moved earlier. It was admitted on that day when apparently the applicant had already served out the sentence imposed upon him. The court or session does not appear to have granted him bail and no prayer for bail was made in this Court evidently because the applicant had already come out of jail after the completion of his sentence. At any rate, when the case came up before me it was stated by learned counsel that the applicant had already served out his sentence and that the petition was being pressed only with the object of obtaining a decision that, even on the facts found, the applicant was not guilty.

The applicant was an engine driver on the East Indian Railway and was, at the time of the occurrence in question, in charge of engine No. 1536. He was at that time posted at Tundla Junction station and was doing the work of shunting. On the day in question, viz., the 3rd of May, 1943, about 10 o'clock in the day, he drove his engine on line No. 4 to a water column, which stands by the side of this line, with the object of filling his tank with water. He approached the water column from the west. Beyond this water column, at a distance of eight or nine feet towards the east, on this line No. 4, is situated a tin shed which has a pit—or “dug”; as it is called—in which engines needing repairs can stand and be attended to. At the time in question engine No. 1269 was standing in this shed over the pit and was undergoing some repairs. According to the driver of engine No. 1269, Muhammad Ishaq, he was in his engine and was fitting what he describes as “Little End And Side Block”. A fitter coolie, Chhedi, was underneath engine No. 1269 and was helping Muhammad Ishaq in that work. The applicant's engine, No. 1536, did not stop at the water column but went beyond it and collided with engine No. 1269 which was standing in the shed. The collision was a violent one and the force of the impact was so great that, according to Muhammad Ishaq, engine No. 1269 was pushed along the line to a distance of forty or fifty yards. Muhammad Ishaq states as a result of the collision he fell down and was stunned for a short time. The fitter coolie, Chhedi, was caught in the wheels of engine No. 1269 and was very seriously injured. He was immediately removed to hospital but died within a minute or two of his arrival there. These were the facts upon which the prosecution was based.

The applicant's defence was that the collision was due, not to any rash or negligent act on his part, but to a defect in his brakes because of which he failed in his attempts to stop his engine at the water column. He stated that his shed man had put too much water in his boiler and that the water had overflowed into the mechanism of the vacuum brakes with the result that the brakes had become useless for the time being. The meaning of this plea clearly is that he was driving his engine to the water column at the speed and in the careful manner at and in which it was his duty to do, that he applied his brakes at the proper time and that the brakes failed to work with the result that the engine could not be stopped where it should have been stopped, namely, at the water column, and went ahead and collided with the engine No. 1269. He also pleaded—somewhat inconsistently—that the collision was brought about by negligence on the part of others in the performance of their duties. He stated that there was no warning signal placed near the stationary engine. No. 12691 to warn approaching drivers, as was necessary under the rules. He also alleged that the rules required that, when an engine was standing in such a shed and was undergoing repairs, certain obstructions be placed on the line and that on this occasion no such obstructions had been placed.

The courts below have held that the applicant's allegation that at the time of the occurrence his brakes had become defective or useless owing to the overflow of water from the boiler was not true. They have also held that there was a warning signal, in the shape of a red board, placed near engine No. 1269 at the time in question and that was sufficient under the rules. They have further held that the rules did not require the placing of any obstructions in the circumstances of this case. They have agreed in finding that the conduct of the accused was such as brought him within the purview of section 304A of the Penal Code and rendered him liable to punishment under that section.

The first point raised before me was that, on the facts found, which I have stated above, the applicant could not be held to be guilty of “negligence” as, according to the learned counsel, that term is understood in law. In support of this proposition reliance was placed on certain stray sentences occurring in the judgments in three English cases, Degg v. Midland Railway Co.(1), Heaven v. Pender(2) (judgment of Brett, M.R, at pages 507, 508 and 509) and Thomas v. Quartermaine(3) (judgment of Bowen, L.J, at page 694). It will be noticed that all the three were civil actions in which damages were claimed on the ground of the defendant's negligence. In the present case we are concerned with the question whether, on the facts found, the courts below were right in holding that the applicant had caused the death of Chhedi by doing a “rash or negligent act” not amounting to culpable homicide and in convicting the applicant under section 304A of an Indian statute called the Indian Penal Code. But, apart from this, none of these three cases is of any assistance to the applicant. The question that arose for consideration, and that was decided, in the first case was whether the rule of law, that a master is not in general responsible to his servant for injury occasioned by the negligence of a fellow-servant in the course of their common employment, applies to the case of a person who is injured whilst voluntarily assisting the servants in their work. The passage in the judgment of that case on which reliance is placed is as follows:

“Some acts are absolutely and intrinsically wrong, where they directly and necessarily do an injury, as a blow; others only so from their probable consequence. There is no absolute or intrinsic negligence; it is always relative to some circumstances of time, place or person.”

I have no objection to these dicta being applied to the facts of the case before me. I shall show hereafter that what the applicant did; when viewed in the light of the circumstances of time, place or person, as they existed in the present case, can without any difficulty be described as a “rash or negligent act”. With regard to the reliance placed on some of the observations of Brett, M.R, in his judgment in the second of the cases mentioned above, it is sufficient to point out that Cotton, L.J, stated in his judgment, in which Bowen, L.J, concurred, that he did not entirely concur with the reasoning of the Master of the Rolls, and that the dicta of Brett, M.R, in that case were considered in Donoghue v. Stevenson. The third case, that of Thomas v. Quartermaine was commented upon in Smith v. Baker. Furthermore, as I pointed out to the learned counsel during the hearing of this case, the decisions in England, dealing with the doctrine of “negligence”, are not all one way, and Talbot, J., pointed out “the breadth and elasticity of the conception of actionable negligence” in the English law: Cunard v. Antifyre. Lord Macmillan emphasised this breadth and elasticity in his speech in Donoghue's case mentioned above. Some passages in that speech of Lord Macmillan's may be reproduced here:

“The law takes no cognisance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence…. In the daily contacts of social and business life human beings are thrown into, or place themselves in, an infinite variety of relations with their fellows: and the law can refer to the standards of the reasonable mind in order to determine whether any particular relation gives rise to a duty to take care as between those who stand in that relation to each other. The grounds of action may be as various and manifold as human errancy…. The categories of negligence are never closed.”

I also drew the attention of the learned counsel to the case of Grant v. Australian Knitting Mills, Ltd.(4) and to the case of Byrne v. Boadle(5), besides the case of Donoghue v. Stevenson mentioned above. Learned counsel then cited the case of Rex v. Bateman(6). In the judgment in that case the Lord Chief Justice (Lord Hewart) observed as follows:

“In order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.”

The function which is performed by the jury in England had to be performed in the present case by the courts below and their finding is that the negligence of the accused did show such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment. The case of Empress of India v. Idu Beg was also mentioned at the bar. The judgment of Straight, J., in that case will repay perusal. It will be sufficient here to reproduce the following observations of the learned Judge:

“Although I do not pretend for a moment to exhaust the category of cases that fall within section 304A, I may remark that criminal rashness is hazarding a dangerous or wanton act with the know ledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.”

It is not necessary to do more than apply these principles to the facts as they have been found in the case before me.

It may be pointed out here that the argument of the applicant's learned counsel ignores the word “rash” in section 304A and also ignores the fact that the conjunction used between the words “rash” and “negligent” is or and not “and”. The case has been argued as if the only word to be found in the section is “negligent”.

Although, normally, this Court, in the exercise of its revisional jurisdiction, is not called upon to review the findings of fact recorded by the courts below, I thought it best—in view of certain arguments advanced on behalf of the applicant—to go through the evidence. Having done so, I am satisfied that the findings of fact arrived at by the courts below are correct.

I proceed now to consider the facts. The applicant was an engine driver and was at the time of the occurrence in question posted at Tundla and was doing the work of shunting. He must have known—it was his duty to know—all the details of the lines and the things which were situated on or by the side of the lines at the. Tundla station. He must have known that a tin shed in which engines were repaired was situated at a distance of eight or nine feet from the water column on line No. 4. In these circumstances, it was his duty to approach the water column very slowly, in fact, to have literally crawled up to the water column so that the engine might be stopped dead at the right spot. It was thus his duty to slow down while he was still at some distance from the water column. It is obvious that he did not do so. If he had approached the water column at the place at which it was his duty to approach it the engine would have been stopped dead at the water column. Even if we suppose for a moment that his allegation about the defect in the vacuum brakes is true, he would, if he had been driving as stated above, have discovered the defect while he was still at some distance from the water column and would have tried to slow down still further by at least shutting off the steam. Even in that case the collision would, in all likelihood, have been avoided or, at any rate, the force of the impact would have been so slight that no one would have been injured. It is obvious to my mind that the applicant was driving rashly at a reckless speed. Furthermore, even if his allegation about the defect in the brakes be accepted, it must be borne in mind that a person who drives rashly relying upon his brakes does an act which might bring him within the provisions of section 304A. Applying the dicta of Lord Hewart and of Straight, J., quoted above, to the facts of this case, the applicant was in my judgment clearly guilty.

Furthermore, it appears to me that the contention raised by the learned counsel for the applicant is not quite consistent with the defence set up by the applicant. His defence was not that, in the circumstances of this case, the law did not cast upon him a duty to take care. His allegations meant that there was such a duty, that he did all that lay in his power to act in accordance with that duty but that his efforts proved fruitless as the mechanism of the brakes broke down at the crucial moment.

For the reasons given above, I have no hesitation in holding that the applicant caused the death of Chhedi by doing an act which was negligent as well as rash and that he has been rightly convicted under section 304A.

The only other point that has been raised is this. It has been argued that the prosecution of the applicant was bad because, in the opinion of the learned counsel, the prosecution appeared to have been instituted without the consent mentioned in section 270(1) of the Government of India Act of 1935. No such point was raised in either of the courts below. No ground raising this question was taken in the petition for revision. The point was raised, not at the commencement of the arguments, but at a late stage before me. The sole ground on which the argument is based is that learned counsel for the applicant did not find any document on the record showing that consent had been obtained. It appears to me that this argument cannot now be entertained. It is apparent that a question of fact is involved, namely, whether such consent was as a matter of fact obtained or not. If the point had been taken in the trial court, and the prosecution had either admitted the allegation or, after denying it, had failed to produce evidence of consent having been obtained, the position might have been different. The point having never been raised, the fact that there is no document on the record showing that consent had been obtained cannot necessarily lead to the conclusion that no consent had as a matter of fact been obtained. Reference may in this connection be made to Kapoor Chand v. Suraj Prasad.

The application for revision is dismissed.