IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO. 9992 OF 2017 BETWEEN:
DR. B. SOORYANARAYANA S/O SUBAAYA, AGED ABOUT 51 YEARS R/AT NO.83, 17TH CROSS, 4TH BLOCK, 4TH STAGE, WEST OF CHORD ROAD, BASAVESHWARANAGAR, BENGALURU – 560 079. ... PETITIONER (BY SRIYUTHS VIKAS M FOR SACHIN B. S.,ADVOCATES) AND:
1. STATE OF KARNATAKA BY MAGADI ROAD PS, BY SPP, HIGH COURT OF KARNATAKA, BENGALURU - 560 001.
2. ERAMMA AGED 24 YEARS W/O GAADHILINGA, RAVIHALU GRAMA, SIRUGUPPA TALUK BELLARY DISTRICT PIN – 574 202. ... RESPONDENTS (BY SRI. VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R-1; R2 SERVED AND UNREPRESENTED) THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.26306/2017 IN THE COURT OF III ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BANGALORE INITIATED AGAINST THE PEITIONER BASED ON THE COMPLAINT FILED BY THE RESPONDENT NO.2/ERAMMA FOR THE OFFENCES P/U/S 304A OF IPC INSOFAR AS THE ACCUSED/PETITIONER IS CONCERNED.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner herein (A1) is accused of committing an offence under Section 304A r/w.34 of Indian Penal Code.
2. The petitioner commenced construction of a residential building in his property comprised in No.83, 17th cross, 4th block, Basaveshwaranagar. Construction work was entrusted to a Contractor by name M.Krishna (A2). A written agreement was entered into between the petitioner and A2 on 20.4.2016. As per the terms of the said agreement, the Contractor took up entire responsibility in case of any damage or injuries to the labourers employed by the Contractor at the site. Clause No.39 of the said agreement is extracted here below which reads :
“During the entire building construction process, any damage or injuries to the labourers employed by the Contrator, the entire responsibility lies with the Contractor and Maistry”
3. That being the case, the deceased Gadilinga, who was employed by the contractor to work as a mason at the site, slipped into the passage leading to the balcony and sustained injuries on his head leading to his death on 18.4.2017. Wife of the deceased lodged a complaint. After investigation, charge sheet came to be filed against the petitioner and the contractor (A 1 and A2) and also against the Maistry (A3).
4. Referring to the above terms of the agreement, learned counsel for the petitioner would submit that, A2-Contractor having taken upon himself the entire responsibility of providing necessary protection and safety to its employees, the petitioner herein cannot be held liable for any loss or damage taken place at the site. Material collected by the investigating officer discloses that the alleged incident took place solely on account of the negligence of A2 and not on account of the act of commission or omission by the petitioner. Under the said circumstance, prosecution of the petitioner for the alleged offence is illegal and contrary to the material on record.
Learned counsel in support of his submission has placed reliance on the decision of this Court in Daljith Singh Ghai and Another vs. State of Karnataka by The Station House Officer, Wadi Police Station, Gulbarga Dist. reported in ILR 2003 KAR 4849.
5. Refuting the submissions, learned SPP for respondent No.1 argued in support of the impugned action contending that the material collected by the investigating agency, prima facie discloses negligence and carelessness on the part of the petitioner herein in providing safety measures for the workers in the site; therefore, the petitioner is also equally liable for the negligence under Section 304A of Indian Penal Code.
6. Respondent No.2 though served has remained unrepresented.
7. Considered the submissions and perused the records.
8. A3 viz. Mr.Saravana, engaged by A2, has unequivocally stated before the Court that deceased- Gadilinga was employed by the Contractor-A2 viz. Mr.Krishna as a mason to work at the spot. According to the prosecution, while the deceased was engaged in mason work, he fell from the balcony through the passage left for construction of the staircase and succumbed to the injuries in the hospital. The agreement produced by the petitioner discloses that construction work was entrusted to A2. The agreement entered into between the petitioner and A2 indicates that A2 had taken upon the entire responsibility incase of any damage or injuries to the laborers employed by him. There is nothing in the entire charge sheet to indicate that the deceased was either employed or working under the petitioner. It is also not the case of the prosecution that the petitioner herein, though owner of the site, was actually engaged in the construction work. It is also not the case of the prosecution that the petitioner was required to provide for safety measures for the labourers employed at the site. On the other hand, the recitals of the agreement between the petitioner and A2 indicates that such precautions and safe-guards were required to be taken by A2 and not by the petitioner. In that view of the matter, petitioner herein cannot be held responsible for the death of the employee engaged by A2.
9. Further, it is not the case of respondent No.2 or the prosecution that deceased succumbed to the injuries on account of any rash and negligent act of the petitioner. ‘Negligence’ is the failure to use reasonable care which a person of ordinary prudence would do under similar circumstances. In order to render a person culpable of the offence under Section 304-A of Indian Penal Code, there must be rash and negligent act on the part of the accused. In the instant case, going by the case of the prosecution, the proximate cause for the death of the deceased is, ‘accidental fall from the balcony through the vacant space left for construction of the staircase’. As already stated above, the entire construction work was taken up by A2 as per the terms and conditions of the written contract dated 28.6.2017. In terms of the said agreement, the primary responsibility was on A2 to provide necessary safety measures for the labourers engaged in the construction work. In view of Clause 39 of the aforesaid agreement, failure of A2 to provide necessary safety measures for the labourers would primarily render him responsible for the negligence leading to the death of the labourer working at the site.
10. In SUSHIL ANSAL VS. STATE THROUGH CENTRAL BUREAU OF INVESTIGATION reported in (2014) 6 SCC 173, the Hon’ble Supreme Court in para 78 has held as under:
“There is no gainsaying that negligence in order to provide a cause of action to the affected party to sue for damages is different from negligence which the prosecution would be required to prove in order to establish a charge of ‘involuntary manslaughter’ in England, analogous to what is punishable under Section 304-A IPC in India. In the latter case it is imperative for the prosecution to establish that the negligence with which the accused is charged is ‘gross’ in nature no matter that Section 304-A IPC does not use that expression. What is ‘gross’ would depend upon the fact situation in each case and cannot, therefore, be defined with certitude. Decided cases alone can illustrate what has been considered to be gross negligence in a given situation.”
11. In the absence of any material to show that the petitioner herein was under an obligation to take care of the employees engaged in the construction site, in my view, the petitioner herein cannot be made liable to answer the charge under Section 304-A of Indian Penal Code.
Accordingly, the petition is allowed. Charge sheet filed in C.C.No.26306/2017 is quashed insofar as the petitioner/accused No.1 is concerned. The Trial Court shall proceed against accused 2 and 3 in accordance with law.
Since the main petition itself has been disposed of, I.A.1/2017 for stay does not survive for consideration and is also disposed of.
Sd/- JUDGE rs