2.

WHETHER THE COMPANY ATTACK WEAPONRIES LTD IS LIABLE UNDER

THE CORPORATE MANSLAUGHTER ACT FOR THE DEATH OF THE BOY?

2.1 Whether making the Company liable under Corporate Manslaughter Act violates
Art.20(1) of the constitution.

Article 20 (1)1 says that no person shall be convicted of any offence except for violation of a
law in force at the time of the commission of the Act charged as an offence, nor be subjected
to a penalty greater than that which might have been inflicted under the law in force at the
time of the commission of the offence.

Under the first part of Art.20(1)2, If a particular act was not an offence according to the law
of the land at the time when the person did that act, then he cannot be convicted under a law
which with retrospective effect declares that act as an offence. In the instant case it is
submitted that there was no Corporate Manslaughter Law at the time of commission of the
alleged offence. As per Art.20(1) a person cannot be convicted for an retrospective offence ;
An offence as per section 3 (37) of the General Clauses Act means an act or omission which
is punishable by any law by way of fine, imprisonment or death. Conviction may be for a
punishment which may be imprisonment or death penalty or fine or forfeiture for property.
Hence there cannot be a conviction under the Corporate Manslaughter Act as the same is a
retrospective criminal law.

State of Maharashtra v. K.K.S. Ramaswamy 3, the accused , an Inspector in the Regional

Transport Office, made a search on May 17, 1964, and was found in possession of pecuniary
resources or property disproportionate to the known sources of his income for which he could
not account satisfactorily. Such a possession, however, itself was not an offence until
December 18, 1964, when such possession itself was made an offence by insertion of clause
amendment of Prevention of Corruption Act, 1937. The supreme Court held that he could not
be convicted of an offence not in existence on the relevant day.

1
Constitution of India ; 1950
2
R.S. Joshi v. Ajit Mills Ltd IR 1977 SC 2279.;  Jawala Ram v. Pepsu AIR 1962 SC 1246.
;  Shiv Dutt Rai Fateh Chand v. Union of India AIR 1984 SC 1194. ;  Union of India v. Sukuma AIR 1966 SC
1206. AIR 1964 SC 464. ; Chief Inspector of Mines v. Karam Chand Thapra  AIR 1961 SC 838.
3
AIR 1979 SC 209
The second part of Art.20(1) a person may be subjected to only those penalties which were
prescribed by the law which was in force at the time when he committed the offence for
which he is being punished. If an additional or higher penalty is prescribed by any law made
subsequent to the commission of the offence that will not operate against him in respect of
the offence in question.

In the instant case it is submitted that at the time of the commission of alleged offence, the
company was punishable under Sec.304 A of IPC, under 304 A the punishment that can be
inflicted is with maximum imprisonment to two years, or with fine, or with both. Since the
offender in the case is a company there cannot be any imprisonment and hence only fine can
be imposed. As per Sec. 63 IPC , Where no sum is expressed, to which a fine may extend, the
amount of fine to which the offender is liable shall not be excessive. But Now the very
request for a New Manslaughter Act by the petitioners is to impose excessive fine and under
the act there is no upper limit for fines that can be imposed, hence the courts can impose
excessive fine and the same cannot be imposed under existing IPC law. Hence it is submitted
that the increased punishment under the new law is violative of Art.20(1).

In the case of Paliniappa Gounder v. State of Tamilnadu4, the Apex Court stated that the
sentence given by the court shall be proportionate to the nature of the offence which includes
the sentence of fine. And the punishment shall not be unduly excessive.

In Kedar Nath v. State of west Bengal5 an accused committed an offence in 1947 , under the
IPC , the offence was punishable by imprisonment or fine or both. Amendment in act in 1949
which enhanced the punishment for the same offence. It was held that the enhanced
punishment could not be applicable to the act committed by accused in 1947.

In Mohari Lai v. Corporation of Calcutta 6 the appellant was found guilty of selling
adulterated turmeric under the Calcutta Municipal Act of 1923 and was sentenced to pay a
fine of Rs. 1,000. Under a law that increased the punishment later; on appeal the High Court
applied Article 20 (1) of the constitution and reduced the amount of fine imposed. The
expression “greater penalty” includes harsher penalty than that which could have been
imposed had the law been not subjected to ex-post facto legislation.

2.2 Whether the company is liable under the Corporate Manslaughter Act.

4
1977 AIR 1323
5
AIR 1954 SC 660
6
AIR 1954 SC 660
In arguendo even if there is no violation of Art.20(1), the company cannot be convicted under
the Corporate Manslaughter Act. For a conviction under Corporate Manslaughter Act there
shall be Gross Negligence established.

Further “gross negligence” encompasses more than mere negligence, and includes a

deliberate decision not to undertake enquiries or investigations required or has done the act
with full knowledge7.

In the instant case the company took all the relevant and possible measures that it could take
and what has happened is an inevitable accident. Firstly As per the factual matrix the drone
was initially tested in a uninhabited area and only after the same was successful it was tested
in the residential area ;Secondly the accident happened was due to a Latent defect that is by
burning of cells due to overcharge and hence by taking a reasonable care it could not have
been avoided. Therefore the same is an inevitable accident.

The counsel would like to place reliance In Cates v. Mongini Bros.,8 wherein the plaintiff
went to the defendant’s restaurant to take lunch and took a seat under a ceiling fan. The fan
fell on her whereby she was injured. In an action for negligence against the defendant, it was
found that the fan had fallen due to a latent defect in the metal of the suspension rod and the
same could not have been discovered by reasonable care on the part of the defendants. It was
held that there being no negligence on the part of the defendants, they were held not liable

Hence it is submitted that there is no gross negligence on the part of the company.

3. WHETHER JEEVAN IS LIABLE FOR NEGLIGENCE?

It is submitted that in the instant case the defence of Volenti non fit injuria is applicable in
arguendo there is no negligence on the part of Jeevan.

A.Volenti non fit injuria

When a person consents to the performance of some act , his consent serves as a good
defence against himself. No man can enforce a right which he has voluntarily waived or
abandoned9. The consent of the defendant is not required to be expressly given and even by
his conduct, his consent can be taken.

7
James Thane Pty Ltd v Conrad International Hotels Corp ; [1999] QCA 516.
8
(1971) 19 Bom. L.R.
9
Salmond, Torts, 14th ed., p. 47.
In Hall v. Brooklands Auto Racing Club10, the plaintiff was a spectator at a motor car race
being held at Brooklands on a track owned by the defendant company. During the race, there
was a collision between two cars, one of which was thrown among the spectators, thereby
injuring the plaintiff. It was held that the plaintiff impliedly took the risk of such injury, the
danger being inherent in the sport which any spectator could foresee, the defendant was not
liable.

Even in the instant case the petitioner , mother of the minor boy agreed to Jeevan saving her
son. The petitioner gave her consent to save the boy knowing that Jeevan is a stranger. The
act of Jeevan is in good faith to save the boy in peril. Hence the risk taken by the petitioner is
an assumed risk.

B. No Negligence on the Part of Jeevan

In arguendo it is submitted that there is no negligence on the part of Jeevan. For Negligence
to be established there has to be Duty of care ; Breach of Duty and Damages as a resultant of
the Breach.

In the instant case there is reasonable care taken by Jeevan, it is submitted that for a
rescuer to be liable for negligence, he should have knowledge that there is a third
person for help and disable the third person from offering help. In the case of Soldano v.
O'Daniels.11 Rescuer is liable for negligence only when there is deliberate refusal to help but
in the instant case the accused tried to rescue but since he is not a professional or an expert
the same could not be completed by him. Hence there is no negligence.

There was a shop owned by the defendant , across the street there was another saloon owned
by the defendants . A person came and told that there was a person threatened in the opposite
shop and asked the defendant to call police or permit him to call the police, both was denied
by the Defendants, and the victim died , the court held that there was deliberate refusal to
help by the defendants and further they had knowledge that there was a third person willing
to help and hence held the defendants are liable for negligence. But per contra in the instant
case there is no knowledge that there was a Jawan outside, Hence Jeevan cannot be made
liable for negligence.

10
(1932) All E.R. Rep. 208 : (1932) 1 K B. 205.
11
190 Cal. Rptr. 310 (Cal. Ct. App. 1983).
 PRAYER

Therefore, in the light of the facts stated, issues raised, arguments advanced and authorities
cited, the Counsels for the respondents humbly pray & implore before this Hon’ble Court for
the following among the other reliefs:

1. To declare that Corporate Manslaughter Act can’t be made under Art.141

2. To declare that Attack Weaponries are not liable under Corporate Manslaughter Act

3. To declare that Jeevan is not liable for Negligence

The Court may make any other such order as it may deem fit in terms of justice, equity &
good conscience. And for this act of kindness the respondents shall as duty bound ever
humbly pray.