The arrest of those suspected of causing the death of children and workers by their negligence in recent tragic incidents in and around the city has raised the question whether such arrests are indeed necessary.
The question, over which there is no unanimity of opinion, is especially pertinent in the case of those held on the premise of vicarious liability — in their capacity as proprietors or heads of institutions or supervisory or assistive staff related to the site of the accidents.
Senior advocate N.G.R. Prasad is clear that negligence of the kind that has been seen in schools and construction sites is no doubt a serious matter. “But, the immediate remedy is not the arrest of persons for vicarious liability.”
Immediate arrest may appease people’s anger but may not go beyond that. Mr. Prasad adds that there should be speedy investigation and a quick trial. And compensation should be awarded to the victims.
Some lawyers feel that arresting someone on premises of constructive responsibility may not necessarily result in conviction, but it will certainly send out a strong message to all those involved.
Senior advocate R. Gandhi also feels that an immediate arrest would send the right signal. In the case of the death of Shruti, the schoolgirl from Mudichur who fell through a hole in the bus or Ranjan of Alwarthirunagar in Chennai, who died in a swimming pool in his school, there is some negligence on the part of the management too. “This sort of action by the State and by the High Court will lead people to be extremely careful about the way they run the institutions.” Some of these incidents are not merely accidents, but instances of gross negligence, and therefore, even if the prosecution does not end in conviction, arresting those involved will have a preventive effect, according to Mr. Gandhi.
V. Suresh, a lawyer and president of the Tamil Nadu chapter of the People’s Union for Civil Liberties (PUCL) cites the law laid down by the Supreme Court (in Joginder Kumar Vs State of Uttar Pradesh 1994) to argue that arrest of a person is required only if she is likely to escape the law, tamper with evidence or intimidate witnesses.
A quick investigation and speedy prosecution will be the alternative to putting someone behind bars at a pretrial stage.
“Arrests as a knee-jerk reaction may give the impression that the police are more interested in satisfying an angry public rather than in the criminal justice delivery system,” says Dr. Suresh.
T. Mohan, advocate, says such arrests are symptoms of a malaise — the weak faith that people have in the system. “They have no faith that the police investigation will be good enough to result in conviction. Therefore, the only punishment the people see is pretrial incarceration.”
The fear among lawyers about arresting all those who could have remotely contributed to the death of, say, a child, is that after the initial flush of anger subsides, all those arraigned, including those culpable, may be acquitted. “There will hardly be a murmur of protest. This is the sorry state of affairs,” Mr. Mohan observes.
The people’s involvement in criminal justice should go beyond immediate anger and must last till trials end in conviction and appeals are dismissed.
However, senior advocate K.S. Dinakaran holds a different view. “In these cases, nothing is wrong in arresting the accused immediately for criminal negligence. Normally, cases are booked against them under Section 304A (causing death by negligence) of IPC. In cases of gross negligence, the case should be under Section 304, part II (culpable homicide not amounting to murder).
