R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.2619 OF 2014 BETWEEN:
1. MELVIN KUMAR S/O SHANTIAGO AGED ABOUT 33 YEARS TEACHER, MOTHER THERASA SCHOOL HOUSE NO.37, 4TH MAIN 2ND MAIN ROAD DODDABOMMASANDRA BANGALORE 560 097 2. LAKSHMI W/O DHANARAJ TEACHER MOTHER THERESA SCHOOL AGED ABOUT 54 YEARS R/AT NO.21, BYRAPPA BUILDING THINDLU VIDYARANAYAPURA BANGALORE 560 097 3. PRAMODHA, S/O KUMAR SWAMY AGED ABOUT 35 YEARS TEACHER, MOTHER THERASA SCHOOL R/AT NO.33RD CROSS, 1ST MAIN JAI MARUTHI NAGAR NANDINI LAYOUT BANGALORE 560 096 4. GEETHA W/O PRAKASH AGED ABOUT 35 YEARS TEACHER MOTHER THERESA SCHOOL R/AT 95TH MAIN, 5TH CROSS BHABUBULINAGAR JALAHALLI VILLAGE BANGALORE 560 058 5. SALMA W/O SULTHANA AGED ABOUT 28 YEARS TEACHER MOTHER THERASA SCHOOL RA/T NO.3, 6TH MAIN, A CROSS MUTHLYAMANAGARA GOKALA EXTENSION BANGALORE 560 054 6. RESHMA W/O RAJANISH AGED ABOUT 33 YEARS TEACHER MOTHER THERASA SCHOOL R/AT NO.179, 5TH MAIN ROAD PIPELINE ROAD BHABUBULINAGAR JALAHALLI VILLAGE BANGALORE 560 058 7. A MANGALA W/O THANISHRANGALAM MAJOR TEACHER MOTHER THERASA SCHOOL R/AT RAMACHANDRAPURA VIDYARANYAPURA POST BANGALORE 560 059 8. RAGHU S/O LATE VENKASHAMIAHA AGED ABOUT 55 YEARS SECRETARY MOTHER THERESA SCHOOL R.A/T FARM HOUSE, M S PALYA JAI MARUTHI NAGAR VIDYARANYAPURA BANGALORE 560 059 ... PETITIONERS (BY SRI: SRINIVASA RAGHAVAN V. SR. ADVOCATE A/W SRI: ABHINAV.R., ADVOCATE) AND:
1. K S HARISHA S/O NARAYANARAO AGED ABOUT 42 YEARS R/AT NO.171 LAKSHMIPURA CROSS HESSARGHATTA HOBLI BANGALORE NORTH TALUK BENGALURU-560009 2. STATE BY NELAMANGALA POLICE REPREENTED BY SPP HIGH COURT OF KARNATAKA BENGALURU-01 ... RESPONDENTS (BY SRI: I.S.PRAMOD CHANDRA, SPP-II FOR R2 SRI: V.ANAND, ADVOCATE FOR R1) ---
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE CHARGE SHEET IN C.C. NO.1505/2012 PENDING ON THE FILE OF THE PRINCIPAL CIVIL JUDGE & JMFC, NELAMANGALA IN CR.NO.417/2011 FOR THE OFFENCES P/U/S 304A R/W 34 OF IPC.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 18.01.2019 AND COMING ON FOR PRONOUNCMENT OF ORDER THIS DAY, JOHN MICHAEL CUNHA. J, MADE THE FOLLOWING:-
O R D E R The facts of this case lie within a narrow compass. On 05.11.2011, petitioner Nos.1 to 7 (accused Nos.1 to 5, 7 and 8) and accused No.6 namely the teachers of Mother Therasa School, M.E.S. Road, Jalahalli village, Bengaluru, had taken the children studying in 3rd, 4th and 5th standard for a school picnic to Residency Holiday Resort, Near Anandanagara, Nelamangala Taluk, Bengaluru. The son of the complainant who was then studying in 3rd standard, got drowned in the swimming pool. Hence, he lodged a complaint against the School Owner, Management and Head Master of the said school as well as the Owner and Manager of Residency Holiday Resort.
2. The Nelamangala Rural Police registered a case against five accused in Crime No.417/2011 under section 304A read with section 34 of Indian Penal Code. After investigation, charge-sheet came to be laid against 11 accused persons namely accused Nos.1 to 8 namely, teachers of the said school and accused No.9, the Secretary of the said school on the ground that accused Nos.1 to 9 had arranged the school picnic and had taken the deceased to Residency Holiday Resort and allowed the deceased to get into the pool. Accused No.10 was an employee in charge of the swimming pool at the relevant time and accused No.11 was the Manager of the Residency Holiday Resort at the relevant time.
3. Petitioners namely accused Nos.1 to 5, 7 to 9 have invoked the jurisdiction of this court under section 482 of Cr.P.C., seeking to quash the charge-sheet laid against them for the above offences on the ground that the petitioners have not committed the alleged offence. There was no mens rea on the part of the petitioners to commit the offence and it was an accident and a simple case of negligence on the part of the occupiers of the swimming pool for which the petitioners cannot be held responsible. The deceased Thejas was alone in the swimming pool while he met with an accident and died. The authorities of the Mother Therasa School have paid a compensation of Rs.7,05,000/- to the complainant/respondent No.1 and the said amount was deposited in Lakshmi Vilas Bank for a maturity value of Rs.17,16,808.21 paise. Considering this fact, the I Additional District Consumer Disputes Redressal Forum, Seshadripuram, Bengaluru, has dismissed the petition filed by respondent No.1 seeking additional compensation. Contending that the petitioners have not committed any offence under section 304A read with section 34 of Indian Penal Code, the petitioners have sought to quash the said proceedings.
4. Heard the learned counsel for the petitioners, learned counsel for respondent No.1 and learned SPP-II for respondent No.2.
5. As the petitioners are sought to be prosecuted for the offence under section 304A read with section 34 of Indian Penal Code, it may be expedient to refer to said section which reads thus:
“304A. Causing death by negligence.- Whoever causes the death of any person by doing any rash and negligent act not amount 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.”
6(i). The main contention of the petitioners is that, they were not present during the occurrence. The deceased was found dead in the swimming pool which was managed by accused Nos.10 and 11 who were the occupiers of the Resort wherein the alleged accident had taken place. Mere fact that the petitioners had taken the deceased to the Resort would not render them responsible for the accident which had taken place in the swimming pool managed by accused Nos.10 and 11. What section 304A of Indian Penal Code requires is causing of death by doing any rash or negligent act and this means that the death must be direct or proximate result of the rash and negligent act of the petitioners. In other words, it is the case of the petitioners that there must be proof that the rash and negligent act of the accused was the proximate cause of death. It is the submission of the learned counsel for the petitioners that there are no eyewitnesses to the incident by which the rash and negligent act attributed to the petitioners could be proved by the prosecution.
(ii) Placing reliance on the decision of the Hon’ble Supreme Court in JACOB MATHEW vs. STATE OF PUNJAB & Others in (2005) 6 SCC 1, learned counsel has emphasized that, in order to fasten liability in Criminal Law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in Civil Law.
(iii) Further placing reliance on the decision of the Hon’ble Supreme Court in KURBAN HUSSEIN MOHAMEDALLI BANGAWALLA vs. STATE OF MAHARASHTRA in AIR 1965 SC 1616, with reference to paragraph Nos.3 and 4, learned counsel has emphasized that, merely because the petitioners have taken the children to the Residency Holiday Resort would not be enough to make them culpable under section 304A, for the deceased would not have got drowned without the negligence of the occupiers of the swimming pool who were directly responsible for the negligence in causing the death of the deceased.
(iv) In order to buttress his argument, learned counsel has pressed into service the doctrine of causa causans and placing reliance on the decision in SUSHIL ANSAL vs. STATE through Central Bureau of Investigation in (2014) 6 SCC 173 has argued that the basis for negligence in Civil law is conceptually different from that in Criminal law. In order to constitute an offence under section 304A of Indian Penal Code, an equally important dimension of the offence that is required to be proved by the prosecution is that the act of the accused must not only be proximate, immediate or efficient cause of the death of the victim but also should have been caused without the intervention of any other person’s negligence. It is the submission of the learned counsel that in the instant case, the immediate cause or the last link in the causation is the negligence of the occupier of the Resort who owed a duty to take care of the visitors or the licensees who were allowed to use the facilities available in the Resort including the swimming pool. Therefore, the prosecution of the petitioners is untenable on facts as well as on the law laid down by the Hon’ble Apex Court in the above decisions, resultantly, the impugned proceedings are liable to be quashed insofar as the petitioners are concerned.
7(i) Having considered the documents, in the light of the facts disclosed in the complaint and the material produced before the Court, I am in complete agreement with the submission canvassed by the learned counsel for the petitioners for the following reasons namely, (ii) The only allegation made in the charge-sheet insofar as the present petitioners are concerned is that the petitioners took the school children for the school picnic to Residency Holiday Resort and allowed them to swim in the swimming pool. Undeniably, taking the children to the Resort and allowing them to swim in the pool by itself does not constitute negligence especially when the said Resort was manned by accused No.11 and the swimming pool was in the direct supervision of accused No.10. Here itself, it is relevant to revert to the substance of the accusations contained in column 17 of the charge-sheet which reads as under:
“FdÄ PÉƼÀzÀ dªÁ¨ÁÝj PÉ®¸À £ÉêÀÄPÀUÉÆArzÀÝ J10, J11 gÀªÀgÀÄ FdÄ PÉƼÀzÀ ¤Ãj£À D¼ÀzÀ §UÉÎ £ÁªÀÄ¥sÀ®PÀ C¼ÀªÀr¸ÀzÉ £Émï C¼ÀªÀr¸ÀzÉ ¹é«ÄAUï E£ï¸ÀÖçPÀÖgÀμÀ£ÀÄß £ÉêÀÄPÀ ªÀiÁrPÉƼÀîzÉ ºÁUÀÆ UÁ½ vÀÄA©zÀ lÆå¨ïUÀ¼À£ÀÄß FdÄ PÉƼÀzÀ §½ EgÀzÉ ¸ÀÄgÀQëvÁ PÀæªÀÄUÀ¼À£ÀÄß PÉÊUÉƼÀîzÉ ¨ÉÃdªÁ¨ÁÝjvÀ£À ºÁUÀÄ ¤®ðPÀëvÀ£À vÉÆj¹zÀÝgÀ ¥ÀjuÁªÀÄ ¸ÁQë-1 gÀªÀgÀ 9 ªÀµÀðzÀ vÉÃd¸ï FdÄ PÉƼÀzÀ°è FdÄ ºÉÆqÉAiÀÄĪÁUÀ ¤Ãj£À°è ªÀÄļÀÄV ªÀÄÈvÀ£ÁUÀ®Ä J1 jAzÀ J11 gÀªÀgÉV£À£ÀªÀgÀÄ PÁgÀtgÁVgÀÄvÁÛgÉAzÀÄ vÀ¤SɬÄAzÀ zÀÈqÀ ¥ÀnÖgÀÄvÉÛ.”
8. A plain reading of these allegations indicates that the acts constituting negligence are directed against accused Nos.10 and 11 and not against the petitioners herein. As could be gathered from the charge-sheet papers, the only allegation against the present petitioners is that, during the occurrence, the petitioners herein were not found near the pool during the occurrence. These facts, even if uncontroverted, do not amount to negligence rendering the petitioners liable for the prosecution for the offence punishable under section 304A of Indian Penal Code.
9. There is conceptual difference between negligence in civil action and in criminal cases. The law on the point is well established by catena of judicial pronouncements wherein the Hon’ble Apex Court as well as the various High Courts in India have repeatedly laid down that, in order to constitute an offence under Indian Penal Code, the negligence imputed to the accused must be gross in nature. It is now well settled that negligence can constitute an offence punishable under section 304A of Indian Penal Code only if the negligence is proved to be gross in nature. Though the term “gross” has not been used in section 304A of Indian Penal Code; in JACOB MATHEW vs. STATE OF PUNJAB & Others in (2005)6 SCC 1, the Hon’ble Supreme Court while examining a case of criminal medical negligence by a Doctor under section 304A of Indian Penal Code, has reviewed the case law on the subject and in para 48 thereof, has held as under:
“(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e., gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word ‘gross’ has not been used in Section 304-A 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 304-A IPC has to be read as qualified by the word ‘grossly’.”
10. In SUSHIL ANSAL vs. STATE through Central Bureau of Investigation (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. Thus it is clear that merely on account of failure of the petitioners not being present near the pool at the time of occurrence cannot be termed as gross negligence so as to render them culpable for the criminal offence under section 304A Indian Penal Code.
12. Viewed from another angle, in order to fasten criminal liability for the offence under section 304A of Indian Penal Code, the prosecution is required to prove that the act of the accused was the proximate and immediate cause of death and that the death was caused without the intervention of another person’s negligence. As held in SUSHIL ANSAL’s case, supra, it must have been the causa causans; and not mere causa sine qua non.
13. In KURBAN HUSSEIN MOHAMEDALLI RANGAWALLA vs. STATE OF MAHARASHTRA in AIR 1965 SC 1616, while endorsing the view taken in EMPEROR vs. OMKAR RAMPRATAP in (1902) 4 Bombay LR 679, the Hon’ble Supreme Court has observed that, “This view has been generally followed by High Courts in India and is in our opinion the right view to take of the meaning of S.304-A. It is not necessary to refer to other decisions, for as we have already said this view has been generally accepted. Therefore, the mere fact that the fire would not have taken place if the appellant had not allowed burners to be put in the same room in which turpentine and varnish were stored, would not be enough to make him liable under S.304-A, for the fire would not have taken place, with the result that seven persons were burnt to death, without the negligence of Hatim. The death in this case was, therefore, in our opinion not directly the result of a rash or negligent act on the part of the appellant and was not the proximate and efficient cause without the intervention of another’s negligence. The appellant must, therefore, be acquitted of the offence under S.304-A.”
14. In Kurban Hussein Mohamedalli Bangawalla’s case, referred to supra, the allegation against the appellant therein was that he allowed the burners to be used in the same room in which varnish and turpentine were stored, which were alleged to be negligent act and fire resulted because of the proximity of the burners. But the said contention was not found favour with the Hon’ble Supreme Court in view of the above proposition of law.
15. In the instant case also, the principles laid down in the above decision, in my view, are squarely applicable to the facts of this case. A plain reading of the charge-sheet discloses that the material allegations constituting negligence are directed only against accused Nos.10 and 11. In the charge-sheet it is specifically stated that on account of the irresponsibility and negligence of accused Nos.10 and 11 in not installing the signboard indicating the depth of the pool and by not providing net and by not ensuring the presence of swimming instructors, the deceased Tejas, aged about 9 years, died due to drowning. This assertion prima facie suggests that the proximate and immediate cause of death of the child was the negligence of accused Nos.10 and 11.
16. Undeniably, accused Nos.10 and 11 were the occupiers of the Resort where the incident had taken place. The charge-sheet contains specific allegation that accused Nos.10 and 11 were entrusted with the duty of supervising and manning the swimming pool. It is further mentioned therein that on account of the negligence of accused Nos.10 and 11 in ensuring the safety at the pool by not erecting a display board cautioning the public about the depth of the pool and by not providing swimming instructors and life jackets, the child aged about 9 years died due to drowning.
17. The law casts a higher degree of care on the occupiers of the building or premises wherein visitors or the licensees are allowed to use the facilities provided therein. What is the degree of care expected from the occupiers of a Cinema building came up for consideration of the Hon’ble Supreme Court in the case of SUSHIL ANSAL, referred to above. In paragraph No.95 thereof, it is observed thus:
“What is the degree of care expected from the occupier of a cinema is the next question to which we must advert at this stage. Two fundamental principles must be noticed at the threshold while answering that question. The first is that the degree and nature of care expected of an occupier depends upon the fact situation in which the duty to care arises. The second and equally important principle at common law is that the degree of care in a given fact situation would depend upon whether the person to whom the duty is owed is a contractual visitor, invitee, licensee or trespasser. Of these the occupier owes the highest degree of care to a contractual visitor viz., a person who pays consideration to be present on the premises for some purpose; whatever that purpose be. At common law there is an implied term in the contract between the occupier and the visitor that the occupier’s premises shall be reasonably safe. The occupier’s duty must be held to have been breached if any injury is caused to a contractual visitor by any defect in the premises apart from a latent defect.”
18. In the case in hand, the material on record indicates that the petitioners had taken the school children for a day’s picnic to the Resort managed by accused Nos.10 and 11. The petitioners as well as school children were therefore the contractual visitors or the licensees of the Resort run by accused No.11 wherein accused No.10 was employed to look after the safety at the swimming pool. Therefore, accused Nos.10 and 11 owed a highest degree of care to the visitors of the Resort, especially to the children. Petitioners herein being the contractual visitors to the said Resort could not have reasonably be expected to discover any latent defect or impending danger within the premises of the occupiers. Therefore, negligence could not be imputed to the petitioners. On the other hand the impending danger in the swimming pool being within the knowledge only of the occupiers, the occupiers were expected to take the maximum care of the visitors ensuring their safety from the moment they gained entry till they exited from the premises. As the circumstances indicate that the deceased got drowned on account of the failure of accused Nos.10 & 11 to ensure his safety, gross negligence has to be attributed only to the occupier namely the Residency Holiday Resort and its employees namely accused Nos.10 and 11. Thus on consideration of the entire charge-sheet and the material produced in support thereof, I do not have any hesitation to hold that negligence of accused Nos.10 and 11 was the proximate and immediate cause for the death of the deceased and therefore, the petitioners herein cannot be held responsible for the death of the boy.
19. The Hon’ble Supreme Court in SUSHIL ANSAL’s case has discussed the nature of care expected of an occupier of a Hotel offering facilities of swimming pool, and in para 106 of the said judgment, it is observed thus:
“The nature of care that the occupier must, therefore, take would depend upon the fact situation in which duty to care arises. For instance, in the case of a hotel which offers to its clients the facility of a swimming pool, the nature of the care that the occupier of the hotel would be expected to take would be different from what is expected of an occupier of a cinema hall. In the former case, the occupier may be expected to ensure that the pool is safe for use by the guests in the hotel, in that the depth is safe for those using the diving board if any, that life guards are on duty when children or other guests are using the pool, that immediate medical succour is provided to those who may meet with any accident, and so on.”
20. In the light of the above factual and legal position, the prosecution of the petitioners for the alleged offence under section 304A read with 34 of Indian Penal Code, in my considered opinion, is wholly illegal and is an abuse of process of court.
21. It is now well settled that the inherent powers under section 482 of Cr.P.C., can be exercised to give effect to an order under the Code to prevent abuse of process of the court and to otherwise secure the ends of justice. It is also well settled that the inherent powers under this provision should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. It is a settled proposition that the wholesome power under section 482 of Cr.P.C. entitles the High Court to quash a proceeding only when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed.
22. In MADHAVRAO JIWAJI RAO SCINDIA & Another vs. SAMBHAJIRAO CHANDROJIRAO ANGRE & Others reported in 1988 Cri.L.J. 853, it is held that:
“The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue.”
23. The uncontroverted allegations in the instant case do not prima facie establish the rash and negligent act of the petitioners and therefore the prosecution of the petitioners being an abuse of the process of Court, cannot be allowed to be continued.
For the aforesaid reasons, the petition is allowed. The proceeding pending on the file of learned Principal Civil Judge and JMFC at Nelamangala in C.C.No.1505/2012 for the offence punishable under section 304A read with 34 of Indian Penal Code is hereby quashed only insofar as the petitioners namely accused Nos.1 to 5 and 7 to 9 are concerned.
Sd/- JUDGE Bss.