Intra Moot- 2017 Team code-B/22

BEFORE THE HONOURABLE SUPREME COURT OF BHARAT

Appellate Jurisdiction

In the matter of,

Article 133 & 136 of The Constitution of Bharat

PETITIONER RESPONDENT

State of Purvanchal Pradesh Koolhaas & Anr.

VERUS

SUBMISSION TO

THE HONOURABLE SUPREME COURT OF BHARAT

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Table of Contents

List of Abbreviations ..................................................................................................3

Index of Authorities ....................................................................................................5
Statement of Facts ......................................................................................................8
Statement of Jurisdiction............................................................................................9
Issues Raised ............................................................................................................10
Summary of Arguments ............................................................................................11
Arguments Advanced................................................................................................13
1. Whether the order passed by the government against Drohingyas was valid
or not? ...................................................................................................................13
Who can be a refugee ..................................................................................13
Rights of refugee ..........................................................................................16
2. Whether the government followed the requisite procedure for the
construction of dam or not? ..................................................................................18
3. Whether or not koolhaas is liable for the negligence and compensation? ....20
Prayer .......................................................................................................................25

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List of Abbreviations

 UOI………………………………………………………....Union of India

 &……………………………………………………………….And

 HC……………………………………………………………High Court

 AIR…………………………………………………………All India Reporter

 Ors. …………………………………………………………..Others

 Anr. …………………………………………………………..Another

 All. ………..……………………………………………Allahabad High Court

 S.C.R ……………………………………………...…Supreme Court Reporter

 ICCPR…………………………..……….International Covenant on Civil and Political Rights

 ICESCR…………………...International Covenant on Economics, Social and Cultural Rights

 CATIP…………………Convention Against and other Cruel, Inhumane or Degrading

Treatment or punishment

 ICERD…………….. International Covenant on the eliminations of all Forms of Racial

Discrimination

 UTPCC………………………….…..Union Territory Pollution Control Committee

 SPCB…………………………………….State Pollution Control Board

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 EAC………………………………………Expert Appraisal Committee

 SEIAA…………………………….….State Level Environment Impact Assessment Agencies

 MOEF…………………………………....Ministry of Environment & Forest

 UDHR……………………………….……Universal Declaration of Human Rights

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Index of Authorities

Books

 Durga Das Basu, Commentary On The Constitution Of India (8th ed. Wadhwa and Company
Nagpur 2007

 Jain M.P., Indian Constitutional Law, 6th Edition 2011, LexisNexis Butterworth Wadhwa
Nagpur.

 Jaswal P.S., Environmental Law, 2nd Edition 2006, Allahabad Law agency.

 Karkara G.S., Environmental Law, 1st Edition, 1999, Central Law Publications.

 Leelakrishnan P., Environmental Case Law Book, 2nd Edition 2006, LexisNexis
Butterworths.

 Bhat, Aparna, Refugee and the law,5th edition 2013, Human Rights Law Network

 SAHRDC, Human Rights and Humanitarian Law, 3rd edition 2011, Oxford Publications

Cases

A
A.C. Mohammed Siddique v. Government of India and others

Akbar AH v. R

Boghy v. UOI

Hadley Vs Baxendale

Jacob Mathew v. State Of Punjab & Anr

K.Chandru v. State of Tamil Nadu

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Mr. Syed Ata Mohammadi v. UOI

Mrs. Indira Gandhi v. Raj Narain

National Human Rights Commission v. State of Arunachal Pradesh

Ravi Kapur v. State of Rajasthan

Shivder Singh v. State

Vishaka and others v. state of Rajasthan and others

Dictionary

Merriam Webster

Statutory Authorities
Indian statues

 Constitution of India

 . Environment Protection Act, 1986

 Foreigner’s Act, 1946

 Protection of Human Rights Act, 1993

 Registration of Foreigner’s Act, 1939

Conventions

 UDHR

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 ICCPR

 ICESR

 CATIP

 ICERD

Legal database

 Manupatra

 SCC Online

 West Law

 Hein Online

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Statement of Facts

I. Bharat is a democratic country having the largest population of the world spread over 30
different states sharing its border with two states namely, Bangla to its NorthWestern
Hemisphere and Barma to its North-Eastern hemisphere. In the year 2012, the Government of
state of Purvanchal Pradesh launched a Samadi Sarovar Project. The ‘SSP’ was an initiative
by the Purvanchal Pradesh Government to build a 3000 MW multi-purpose dam
II. Koolhaas, a Swiss based Architectural Company proposed budget along with it to the
Purvanchal Pradesh Government for the construction of the dam and got the contract. Eyeing
the victory in 2017 elections, Purvanchal Pradesh government directed the government
engineers to pace up the work for construction of the dam. All the work was being supervised
by the experts of Koolhaas.
III. The government, after confirming all the procedural mandates, passed an order directing the
construction of dam (G.O. 1183) and another order directing the concerned authorities to send
the Drohingyas back to the state of Barma (G.O. 1184). Mr. Gaurav filed a Writ Petition
before the High court of Purvanchal Pradesh against the GO’s.
IV. On 17th October, 2017 there was a breach in the tunnel which was used to divert the Samadi
River resulting in flood in the majority part of state of Purvanchal Pradesh. High number of
casualties were reported with a total death count of 1,60,000 and countless displaced. State
brought a civil action for damages against the Company in the Distt Court which was decided
in their favour. On an appeal, HC constituted a high-powered committee to look into the
matter.
V. The State also filed a criminal case against Koolhaas u/s 304A, 336, 337 and 338, IPC, 1860 in
the same matter. In civil proceedings, the Court held State liable for damages. Against both
these decisions State filed an SLP. Further, the GO’s were quashed by the HC in the PIL filed
by Gaurav. Therefore, Government approached the Supreme Court through an appeal
challenging the verdict of the High Court of Purvanchal Pradesh. Now all the matters have
been clubbed and are listed before the Supreme Court of Bharat.

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Statement of Jurisdiction

The petitioner has approached the Hon’ble Supreme Court under article 136 of the
Indiana Constitution in the matter of civil and criminal negligence and has also
approached the Hon’ble Supreme Court under article 133 of the constitution of
Bharat but the respondent reverentially submits to the jurisdiction of the court and
would argue the case on merits

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Issues Raised

1. Whether the order passed by the government against Drohingyas was valid or

not?

 Who can be a refugee

 Rights of refugee

2. Whether the government followed the requisite procedure for the construction
of dam or not?

3. Whether or not koolhaas is liable for the negligence and compensation?

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Summary of Arguments

A. Whether the order passed by the government against Drohingyas was valid or
not?

The counsel most humbly submits that the order passed by the government ordering the
concerned authorities to send the Drohingyas back to the state of Barma was not valid as
Drohingyas. Now the questions arises that whether drohingyas adhere to the status of refugees
or not?

 Who can be a refugee

Article 1(2) of the 1951 United Nations Conventions Relating to the Status of Refugees says the
definition and certain elements of refugees. In the case in hand as well the armed forces of
Barma started committing atrocities and started prosecuting the drohingyas living in the
Drakhine state of Barma, which clearly provides that there was a well founded fear of being
prosecuted to the ethnic group of drohingyas. The council would just like to conclude that
drohingyas do fall in the definition of refugee and have all the rights that are accorded to any
refugee of any country.

 Rights of refugee
India is a signatory to a number of international instruments dealing with human rights, refugee
issues and other related matters -India has ratified the ICCPR and its provisions can be
specifically applied to refugees to name a few. The order passed by the government against the
forceful deportation of the Drohingyas was not valid and should not be set aside as the
government clearly violated the principles of international law and also did not implement in the
manner in which it should have been, moreover no opportunity was given to the drohingyas to
present their case.

B. Whether the government followed the requisite procedure for the construction
of dam or not?
It is most humbly submitted that the government of Purvanchal Pradesh did not adhere to the
requisite procedure for the construction of the dam and also the order (G.O. 1184) passed by the
government was not valid. As per the guidelines of the Ministry of Environment and Forest

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(MoEF), Environmental Impact Assessment (EIA) is a prerequisite for launching any major
development project.

C. Whether or not koolhaas is liable for the negligence and compensation?

It is humbly submitted before the honorable court that koolhaas are not liable for a breach in the
tunnel which was used to divert the Samadi River resulting in flood in the majority part of state
of Purvanchal Pradesh. The reasonable care as much required in the present case was duly
taken care of in this case where company has performed its contractual obligations efficiently.
And it was negligence on the part of state government who after giving the tender to the
company put the entire workload over the company in the given circumstances of having an issue
of refugees in that area. The company on the other hand, have complied with all the contractual
obligations and could not be made liable for any damages either compensation under sections
304A, 336, 337 and 338 of IPC.

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Arguments Advanced

1. Whether the order passed by the government against Drohingyas was valid or
not?
The counsel most humbly submits that the order passed by the government ordering the
concerned authorities to send the Drohingyas back to the state of Barma was not valid as
Drohingyas. Now the questions arises that whether drohingyas adhere to the status of refugees
or not?

 Who can be a refugee

As has been enshrined under the Article 1(2) of the 1951 United Nations Conventions Relating to
the Status of Refugees, which defines that:

“Article 1- For the purposes of the present Convention, the term “refugee” shall apply to any
person who:

(2) As a result of events occurring before 1 January 1951 and owing to well founded fear of
being persecuted for reasons of race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his nationality and is unable or, owing to
such fear, is unwilling to avail himself of the protection of that country; or who, not having a
nationality and being outside the country of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return to it.”

From this definition it is clear that the 1951 convention is elaborate in its definition of who
constitutes a refugee. Further this definition provides with certain elements for any person to
attain the status of a refugee. These elements are:

 Well founded fear of being Prosecuted

A refugee claimant has to demonstrate that he/she has fled from his /her country owning to a
well founded fear of being prosecuted. The word “fear” refers not only to persons who have
actually been prosecuted, but also to those who wish to avoid a situation entailing the risk of
prosecution. Now the criteria for determining what is well founded of a subjective element i.e.
relating to the perceptions, emotions and experiences of the refugee claimant and where the

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applicant’s statements are evaluated and further an objective element, which may be assessed
from the general situation in the country of origin.

In the case in hand as well the armed forces of Barma started committing atrocities and started
prosecuting the drohingyas living in the Drakhine state of Barma, which clearly provides that
there was a well founded fear of being prosecuted to the ethnic group of drohingyas.

Further this fear should be for one or more of the following reasons:

 Race
 Religion
 Nationality
 Membership of a particular social group
 Political opinion

In the case in hand the fear is clearly related to race and nationality.

 Race
Discrimination on the basis of race, ethnicity, caste, colour or creed very common and these do
lead to times of such severity that the people targeted are compelled to flee prosecution no
person should be targeted just because they belong to a particular ethnic group which has
happed in the present case.

 Nationality
This ground is also one of the leading grounds for prosecution of nationality. It is interpreted in
a broad sense, to include the origins and membership of particular ethnic, religious, cultural,
and linguistic groups. As seen that various factors overlap on the grounds of prosecution. Hence,
these factors contribute cumulatively to a well founded fear of prosecution. To add to it the
actual case where the Iraqi nationals of Iranian ethnic group no longer enjoyed the protection of
Iraqi authorities after the government passed a decree starting that such persons could not be
considered citizens of Iraq. Without the right of citizen, many such persons fled Iraq and sought
refuge in neighbouring countries.

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Clearly now the issue that arises is that India not being signatory to the 1951 convention, but the
principles of international law related to refugee must be taken as incorporated directly into
Indian constitutional law via article 211. The constitution of India expressly incorporates the
common law percept. The courts have gone further and elevated it to the status of one of the
basic structures of the constitution, thus making this percept unamendable.2 Further article 51
states that the state shall endeavor to foster respect for international law and treaty obligations
in the dealings of organized peoples with one another. Article 513 is a directive principle of state
policy, indicating the spirit in which India approaches her international relations and
obligations.

The position is such that even if a treaty or convention , resolution is not ratified or agreed to by
Bharat, the courts are still at liberty, provided there exists no domestic law to the contrary, to
incorporate these conventions, treaties and resolution into Indian law and thereby enforce them.

In the case of Vishaka and others vs state of Rajasthan and others4, the hon’ble Supreme Court
of India emphasized that international conventions which are not inconsistent with fundamental
rights and in harmony with their spirit must be read into these provisions to enlarge their
meaning and content thereof, so as to promote the objective of constitutional guarantee.

Further referring to the convention on the Eliminations of All Forms of Discrimination against
Women (CEADW), the apex court further held that international convention and norms are to be
read into fundamental rights in the absence of an enacted domestic law when there is n
inconsistency between them. The court also recognized the concept of legitimate expectations in
the context of observance of international law, in the absence of a contrary legislation provision.

Referring to the CEDAW, the Supreme Court further held that international conventions and
norms are to be read into fundamental rights in the absence of an enacted domestic law when

1
Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to
procedure established by law
2
Mrs. Indira Gandhi v. Raj Narain, AIR 1975 SC 2299
3
Promotion of international peace and security The State shall endeavour to
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another;
and encourage settlement of international disputes by arbitration PART IVA FUNDAMENTAL DUTIES
4
1997 (6) SCC 241

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there is no inconsistency between them. Moreover, India claims to abide by the UDHR, article
14(1) of which states that:

“Everyone has a right to seek and enjoy in other countries asylum from prosecution”

Therefore, the counsel would just like to conclude that drohingyas do fall in the definition of
refugee and have all the rights that are accorded to any refugee of any country.

 Rights of refugee
India is a signatory to a number of international instruments dealing with human rights, refugee
issues and other related matters. The rights and freedom set forth in the UDHR apply to
everyone, without discrimination of any kind, such as race, colour, sex, language, religion,
political or other opinion as enshrined under article 2. There are some rights under UDHR
which are now considered jus cogens, these rights are universally accepted and enforced by all
the state parties, regardless of whether they have signed the 1951 convention or not.

India has also ratified the ICCPR and its provisions can be specifically applied to refugees.
Article 13 states that aliens including the refugees may be expelled only in pursuance of a
decision reached in accordance with law. The refugee has the right to be allowed to submit
reasons against his expulsions, have the case reviewed and be represented before a competent
authority. This right is related to the right of non-refoulement as enshrined under article 33 of
the 1951 convention, that states that the right against expulsion of a refugee to the frontiers of a
territory where her life or liberty would be threatened.

The same principle is also reiterated in article 3 of the CATIP convention. It is considered as one
of the most important provisions in international human rights law relating to refugee. It is one
of few articles, apart from article 33 of the 1951 convention, to provide for non-refoulement. The
provision states that no state party shall expel, return or extradite a person to another state
where there are substantial grounds for believing that she would be in danger of being subjected
to torture. Now to determine whether there are such grounds, competent authorities are required
to take into account various relevant considerations, such as consistent patterns of gross,

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flagrant or mass violation of human rights. Given that refugee often flee from persecution in the
form of torture, this provision is extremely relevant in protecting their rights of non-refoulement.

Whereas in the instant case the order no.1184 regarding the drohingyas to be sent back to the
state of Barma where they already have the fear of prosecution is against all the international
principles as enumerated above. There is no domestic law in conflict with international
conventions, treaties and resolutions relating to refugees. Section 3(1) of the foreigners act does
not grant an absolute right to the Indian government to expel foreigners from Indian territory. It
is not the right to be exercised in a reasonable manner. In the context of refugees,
reasonableness is to be determined by international refugee law. It is in the spirit that the
Guwahati High Court in the case of Boghy v. UOI5. The hon’ble High Court ordered the
temporary release of a Burmese so that the petitioner could apply for refugee status to the
UNHCR office in Delhi.

Moreover as stated above that since there is no such domestic law in regard to the refugees, the
courts via judgments have incorporated the same in various articles of the constitution.
International law today stands somewhat integrated into Indian law via article 21, irrespective
of the government’s decision whether or not to accede to the 1951 convention and the 1967
protocol.

As in the case of National Human Rights Commission v. State of Arunachal Pradesh6, in this
case the hon’ble Supreme Court held that chakma refugees who had come from Bangladesh due
to persecution cannot be forcibly sent back to Bangladesh as they may be killed there and thus
they would be deprived of their right under article 21 of the constitution. The State Government
of Arunachal Pradesh was directed to protect the life and personal liberty of each chakma and
repel any attempt to drive them out of the state.

Various High courts have also liberally adopted the rules of natural justice to address refugee
issue. As in the case of A.C. Mohammed Siddique v. Government of India and others7, where the
hon’ble Madras High Court expressed its unwillingness to let any Sri Lankan refugee to be
forced to return to their country against their will.

5
Civil rule no.1847 of 1989
6
AIR 1996 SC 1234
7
Writ Petition Nos. 6708 &7916 of 1992

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The Bombay High Court, In the matter of Mr. Syed Ata Mohammadi v. UOI8, held that “there is
no question of deporting the Iranian refugee to Iran, since he has been recognized as a refugee
by the UNHCR” the court further added that such an order is in line with the principle of non-
refoulement.

In the end the counsel would just like to submit that the order passed by the government against
the forceful deportation of the Drohingyas was not valid and should not be set aside as the
government clearly violated the principles of international law and also did not implement in the
manner in which it should have been, moreover no opportunity was given to the drohingyas to
present their case.

2. Whether the government followed the requisite procedure for the construction
of dam or not?
It is most humbly submitted that the government of Purvanchal Pradesh did not adhere to the
requisite procedure for the construction of the dam and also the order (G.O. 1184) passed by the
government was not valid.

As per the guidelines of the Ministry of Environment and Forest (MoEF), Environmental Impact
Assessment (EIA) is a prerequisite for launching any major development project. In compliance
with this requirement, The EIA report presents the objectives and scope of the study, the
environmental baseline status of the project area, identification of major environmental impacts,
prediction of various impacts during and after the proposed developmental activities, evaluation
of these impacts, followed by suggestions for effective environmental management plan to
minimise the adverse impacts.

Further the 2006 amendment to EIA process which even substantiated that it is impossible to
start a project without a proper EIA.

 Decentralization of regulatory functions through State Level Environment Impact

Assessment Agencies (SEIAAs). SEIAAs oversee smaller scale Category B projects.
MoEF continues to regulate larger scale Category A projects.

8
Criminal Writ Petition Nos. 7504 of 1994

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 MoEF or SEIAA give the final approval for any project. However, they need to base their
approval on the recommendations of State Expert Appraisal Committee (SEAC) and
Expert Appraisal Committee (EAC). These are bodies of experts that review the impact
assessment made by regulatory authorities.

 The State Pollution Control Board (SPCB) or the Union Territory Pollution Control
Committee (UTPCC) conduct a public hearing. This takes the responsibility of such
hearing away from the project proponents. Public hearing is a platform where public can
express and record their project grievances.

These steps clearly highlight the fact that the 3rd amendment has not been adhered to as it
clearly brings the fact the SPCB will be conducting a public meeting and there has not been a
single meeting in this pretext. Moreover according to the government stats only 201 people were
to be effected by the same whereas the death toll varies from that a lot, which clearly shows that
the EIA wasn’t conducted properly. Further the reports of the FAC which out rightly rejected the
project seeing the impact of the project on the environment clearly highlights to the fact that
government was just in hurry to start the project, which would give them political benefits in the
2017 elections.

For any project to be assessed on EIA, it is observed that the overall impact of the project should
be greater than the adverse impacts made due to the project on the environment. If the answer is
positive the project is given a green signal whereas if the EIA lapses then such project is set
aside. Moreover, the impact of SSP is clearly taken to their benefit by the government; a country
which mainly depends upon agriculture is being taken away from their source of earning just for
the political motives of the government. Further no steps have been taken by the government of
Purvanchal Pradesh to rehabilitate the people who will be displaced as according to their stats
only 301 people were to be affected.

This principle was reiterated in the case of K.Chandru v. State of Tamil Nadu9, where it was held
that the procedure of displacing the people from their habitat can be called as “just, fair and
reasonable” only when they are provided with suitable alternatives sites with all basic amenities
of life, which the government has clearly failed to do so.

9
AIR 1986 SC 204

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The tender was issued in 2012 which implies that the impact of such a project on the
environment was assessed after that. A project like this requires minimum of one year for proper
establishment as well as functioning. Therefore, considering only one year for assessing the
impact on the environment because of large scale projects like construction of dam is not
sufficient. Such projects require thorough research of not only primary data but also secondary
data to determine the true impact on the environment. In the present case, the EIA failed to
assess the impact of this project on the environment. This projects not only disrupts the human
population but also adversely effects the wildlife, the reports have gone to the extent of listing the
names of almost extinct species of animals that are not found in the area but the ones that are
found were represented wrongly in the report clearly showing the ill intentions of the
government relating to the project. The EIA report would show firmer results if the same had
been done after collecting secondary data and assessing the same over longer duration of time

So, in the end the counsel would just like to submit before the hon’ble bench that government of
Purvanchal Pradesh did not adhere to the requisite procedure for the construction of the dam
and also the order (G.O. 1184) passed by the government was not valid.

3. Whether or not koolhaas is liable for the negligence and compensation?

It is humbly submitted before the honorable court that koolhaas are not liable for a breach in the
tunnel which was used to divert the Samadi River resulting in flood in the majority part of state
of Purvanchal Pradesh. There exist many contractual obligations which are strict in the sense
that a party can be in breach of agreement even though he has exercised all reasonable care to
try to satisfy his obligations. However, some contractual obligations are demanding and merely
require the exercise of reasonable care, or a similar standard. Normally in a contract for the
performance of professional services, the performing party will owe merely an obligation to
exercise due care, rather than to guarantee the success of the task. Hence, the reasonable care
as much required in the present case was duly taken care of in this case where company has
performed its contractual obligations efficiently. And it was negligence on the part of state
government who after giving the tender to the company put the entire workload over the
company. The company on the other hand, has complied with all the contractual obligations
which were;

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 Supply the architectural designs and construction plan

 Provide the budget for the construction

 Supervise the construction

The company while working on project got approved from the state government but as in the
investigation conducted on the order of High Court, it was found out that the material used was
of mediocre quality, available near the site whereas the desired material would have taken time
to be transported and the construction would have delayed. Because the government was always
in hurry to complete the project before 2017 elections so government directed the government
engineers to pace up the work for construction of the dam. Thus, koolhaas are not liable for
paying any damages to the state government since there is no breach of contract on company.

The term ‘Damages´ means compensation in terms of money for the loss suffered by the injured
party. Burden lies on the injured party to prove his loss. In a suit for damages under the law of
tort, the Court awards pecuniary compensation after it is proved that the defendant committed a
wrongful act.

In such cases, the Court usually has to decide three questions:

 Was the damage allegedly caused by the defendant’s wrongful act?

 Was it remote?
 What is the monetary compensation for the damage?

These elements imply that there has to be always a plaintiff who had suffered loss on account of
wrongful act of the defendant. If the damage caused to the plaintiff is directly referable to the
wrongful act of the defendant, the plaintiff becomes entitled to damages. Damages are likely to
be limited to those reasonably foreseeable by the defendant. If a defendant could not reasonably
have foreseen that someone might be hurt by their actions, there may be no liability. This is
known as remoteness. The landmark caselaw of Hadley Vs Baxendale10 is considered to be the
basis of the law to determine whether the damage is the proximate or remote consequence of the

10
[1854] EWHC J70

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breach of contract. Coming to the types of damages, the damages are divided into two
categories. They are:

 General Damages: General damages are those which arise naturally in the usual course
of things from the breach itself. And in this case there is no breach of contract.

 Special Damages: Special damages are those which arise on account of the unusual
circumstance affecting the plaintiff. They are not recoverable unless the special
circumstances were brought to the knowledge of the defendant; so that the possibility of
the special loss was in contemplation of the parties. And there was no such
circumstances, it was a negligence merely on the basis of government for providing
material of mediocre quality to the koohlaas.

In Ravi Kapur v. State of Rajasthan11, it was held that the doctrine of res ipsa loquitur serves two
purposes. Firstly, that an accident may by its nature be more consistent with being caused by
negligence for which the opposite party is responsible than by any other cause and that in such a
case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to
avoid hardship in cases where the claimant is able to prove the accident but cannot prove how
the accident occurred. Recourse to this principle is also permissible where there is no direct
evidence brought on record. These stated principles apply more often than not to motor accident
cases and can squarely be applied to cases of environmental pollution resulting from industrial
activities or development.

Coming to the charges of criminal negligence, sections 336, 337 and 338 of IPC, to impose
criminal liability under Section 304-A, it is necessary that the death should have been the direct
result of a rash and negligent act of the accused and that the act must be the proximate and
efficient cause without the intervention of another’s negligence. A negligent act refers to an act
done by a person without taking sufficient precaution or reasonable precautions to avoid its
probable mischievous or illegal consequences. It implies an omission to do something, which a
reasonable man, in the given circumstances, would not do. Rashness is a higher degree of
negligence.

11
(2012) 9 SCC 284

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The rashness or negligence must be of such nature so as to be termed as a criminal act of

negligence or rashness. Criminal rashness is hazarding a dangerous or wanton act with the
knowledge 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, t was the imperative
duty of the accused person to have adopted.

However, Section 80 of the IPC provides, “nothing is an offence which is done by accident or
misfortune and without any criminal knowledge or intention in the doing of a lawful act in a
lawful manner by a lawful means and with proper care and caution’. It is absence of such proper
care and caution, which is required of a reasonable man in doing an act, which is made
punishable under Section 304-A.

To render a person liable for neglect of duty it must be such a degree of culpability as to amount
to gross negligence on his part. It is not every little slip or mistake that will make a man so
liable. In Shivder Singh v. State12, a passenger was standing on the foot-board of a bus to the
knowledge of the driver and even so the driver negotiated a sharp turn without slowing down.
The passenger fell off to his death. The driver was held to be guilty under Section 304-A.

In Akbar AH v. R13, the accused, a motor driver, ran over and killed a woman, but there was no
rashness or negligence on the part of the driver so far as his use of the road or manner of driving
was concerned, it was held that the accused could not be convicted under Section 304-A on the
ground that the brakes of the lorry were not in perfect order and that the lorry carried no horn.

The ‘rash or negligent act’ referred to in Section 304-A means the act which is the immediate
cause of death and not any act or omission which can at most be said to be a remote cause of
death.

12
[(1995) 2 Cr.LJ 2142 (Del.)]
13
[(1936) 12 Luck 336]

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In the case law of Jacob Mathew vs State Of Punjab & Anr14, the word 'gross' has not been used
in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so
held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as
occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'.

The sections 336, 337 and 338 will be applicable only in cases where the hurt caused is a direct
result of the negligence or rash act. Mere negligence or rashness is not enough to bring a case
within the ambit of Section 337 or Section 338. Negligence or rashness proved by evidence must
be such as should necessarily carry with it a criminal liability which is not present in this case as
all the procedural mandate was approved by the company from the government itself and mere
supervision was provided to the working of government engineers.

Whether such liability is present may depend on the degree of culpability having regard in each
case to the particular time, place and circumstances. If it is merely a case of compensation or
reparation for injury or damage caused to a person or property, it is clearly not punishable
under either of the sections. The culpability to be criminal should be such as concerns not merely
the person injured or property damaged but the safety of the public on the road. But the nature
and extent of the injury or damage will be irrelevant in fixing criminal liability for negligence
under these sections.

It is humbly pleaded before the honorable court that koolhaas are not liable for any act of
negligence and it was state which is to be held liable for getting passed procedural mandates
with fraudulent data survey reports and providing mediocre quality of material to the company.

14
(crl.) 144-145 of 2004

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Prayer
Wherefore in the light of facts of the case, arguments advanced and authorities cited, it is most
humbly prayed before the Hon’ble Court that it may be pleased to hold, adjudge and declare
that-

 The government order directing the concerned authorities to send the Drohingyas back to
the state of Barma was not valid.

 The government did not follow the requisite procedure for the construction of dam.

 The State of Purvanchal Pradesh should be held liable for the negligence and be asked to
pay compensation.

And/or any other relief that this Hon’ble Court may be pleased to grant in the interest of justice,
Equity and Good conscience.

And in these premises the Respondent as duty bound shall forever pray.

Counsels on behalf of Respondent

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