By Khushi Agarwal
Recently India faced an extremely severe cyclone in the Arabian sea which was named as “Tauktae”. It became first cyclone to hit India in 2021 and had affected India’s western coast states very badly. Starting from Lakshadweep to Kerala, Karnataka, Goa, Maharashtra, Gujarat, it left no state untouched. Even it caused rainfall up to Delhi, Bihar, and Nepal.
Dr. Mrutyunjay Mohapatra, Director General of Indian Meteorological Department said, ‘it is very rare that a cyclone affects so many states at a time’. It was seen as second strongest tropical cyclone to hit the state of Gujarat after the 1998 Gujarat cyclone.
This cyclone resulted in many deaths, especially in Gujarat and adding to this poll happened the tragedy of Barge P305.
What Happened in the Barge P-305 case?
Barge P305 was a vessel owned by Durmast enterprises limited which was chartered by Afcons Infrastructure limited for a contract with Oil and Natural Gas Corporation (hereinafter as ONGC). It was engaged in maintenance work of an offshore oil drilling platform of ONGC off the coast of Mumbai. It was during this time only that India was going through the cyclone Tauktae.
As soon as it was seen that cyclone was advancing upwards towards Mumbai, warnings were issued to ONGC to take all the vessels back to harbor. But despite all the warnings, Captain of the ship chose not to move away from the path of the cyclone and chose to stay in the sea only.
While all other barges started going back after receiving the warnings, Captain of Barge P305 hardly chose to move 200 metres from the location where they were working earlier. He ignored all the weather warnings and when other members asked him to get back, he said that they are at a safe place and wind speed will not go beyond 40 knots.
A person rescued told that barge P305 had very little work remaining at the platform and therefore wanted to stay there and finish the work instead of coming back again for that small work.[1]
But all the predictions went wrong. The weather suddenly started deteriorating and no further action could be taken. The vessel slowly and slowly started losing all its anchors and finally all its anchors gave away.
Then the vessel started drifting with the flow of the wind and became uncontrollable. And finally, the vessel with 261 persons smashed into the unmanned platform which resulted in hole leading to the sinking of the vessel in the Arabian sea. Seeing the vessel sinking, many people with their life jackets jumped into the sea hoping to get help.
Rescue operation
After all this, rescue operation was started by the Indian navy which also deployed specialized diving team for search and rescue (hereinafter as SAR) operations for finding and rescuing all the people.
Both ships and helicopters carried on the mission. The team was successful in finding 186 people and recovered around 66 bodies.
The operation, however, did not become fully successful as still 9 people are missing along with the Captain of the vessel who have not been found till now. DNA test of the bodies have also been undertaken to find out the identity of the bodies. Both ONGC and Afcons have announced compensation for the victims.
Who filed the FIR?
FIR was registered at Yellow gate police station by the Mumbai police against the Captain, who is still missing, after one of the rescued crew members of the vessel, complained about the ignorance of the warnings by the Captain.
The member who complained was the chief engineer of the barge, Rehman Sheikh. It is alleged that by ignoring the warnings, he acted negligently and therefore had been booked for ‘causing deaths by negligence’.
What is Criminal Negligence?
Unlike Section 299 and 300 of Indian Penal Code, 1860 which talks about culpable homicide and murder respectively, Section 304A of this act talks about criminal negligence, that is, “causing death by negligence”.
This section states, “Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.
This means that when someone’s death is caused due to the negligent act of the other person and which does not fall under the ambit of culpable homicide, will amount to criminal negligence. Punishment for causing death by negligence is also given under Section 304A of Indian Penal Code, according to which person liable can be either punished with imprisonment up to two years or with fine or with both imprisonment and fine.
To understand criminal negligence, one must first understand the meaning of negligence.
What does the term Negligence mean?
According to Winfield, negligence is the breach of duty to take care which results in damage. It is an omission of something which a reasonable man would have done in a particular situation. Same was said in Jacob Mathew v. State of Punjab[2]. Every person has some duty towards their neighbors, if that duty is not done which a reasonable man would have done and if it lead to damages, then it will amount to negligence.
Therefore, for proving negligence, three essentials must be fulfilled which are:
- that the defendant had a duty towards the plaintiff;
- defendant breached that duty;
- plaintiff suffered damages due to that.
Therefore, if these conditions are fulfilled, act of negligence will occur.
Difference between culpable homicide and criminal negligence
Culpable homicide defined under Section 299 requires the presence of both intention and knowledge. It must be shown that the person who is made liable under this section had the intention of causing death and also had the knowledge that the act which he is doing can cause someone’s death.
The Section states “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”.
Therefore, Intention and knowledge constitutes main essentials to make someone liable under this section.
The opposite is true for criminal negligence which is defined under Section 304A. To make someone liable under this Section, it must be shown that the person did not have any intention of causing someone’s death and also, he did not have the knowledge that his act can lead to someone’s death.
In this case, death is caused due to negligence of the person instead of any intention of doing so on his part.
Conclusion
Therefore, to constitute the act of criminal negligence, it must be proved that:
- the person acted negligently leading to someone’s death.
- the person did not have any intention to cause that person’s death.
- he committed the act without the knowledge that his act can cause someone’s death.
If these conditions are fulfilled, a person can be made liable under Section 304A for causing death by negligence.
The same thing happened in Barge P305 case. The Captain of the ship had a duty of care towards all the crew members working on the ship. He breached that duty by ignoring all the weather warnings and continuing work in the sea. And this act led to several damages including so many deaths.
Therefore, he acted negligently fulfilling our first condition.
However, he did not have any intention for causing those deaths as he just wanted to finish that small work as soon as possible which was left instead of coming back again to complete that.
Hence, second condition is also fulfilled as he did not have any intention of causing death.
Third condition is also satisfied as the Captain predicted that the maximum wind speed will not go beyond 40 knots and according to that their life was not at all in danger.
Also, according to him they were at a safe place. Therefore, he did not have any knowledge that his act can lead to people’s death. He did not think that the weather conditions will become so bad suddenly.
As all the conditions for the act of criminal negligence is getting fulfilled, Captain of the ship is being booked under Section 304A of the Indian Penal Code, 1860 for causing deaths by negligence.
Reference:
- Barge P305: Casualties of Cyclone Tauktae available at: .hindustantimes.com↑
- Jacob Mathew v. State of Punjab 2005 AIR SC 3180 ↑