IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR Crl.P.No.384/2019 BETWEEN 1. MR.MURTUJA @ MURTUZA ADENWALA S/O. MR. ILIYAS ADENWALA, AGED ABOUT 47 YEARS ORIENT ECO SYSTEMS PVT LTD, BEHIND BENSON SUPER MARKET, HULIMAVU, BG ROAD, BANGALORE 560076.
AND HAVING RESIDENCE AT NO. 8, ROYAL HERMITAGE, OPP. SHERWOOD HIGH SCHOOL, BANNERGHATTA ROAD, GOTTIGERE, BANGALORE - 560083 2. MR. SACHIN RAJU S/O. LATE. A M VASUDEVA RAJU, AGED ABOUT 27 YEARS BLUE HORIZON HOTEL, NEAR JD MARA BUS STOP, B G ROAD, BANGALORE - 560076.
AND HAVING RESIDENCE AT SRI. LAXMI NILAYAM, NO. 292/A, 34TH CROSS, JAYANAGAR, 4TH BLOCK, BANGALORE - 560011 ... PETITIONERS (BY SRI SAMPATH KUMAR B K, ADVOCATE) AND 1. STATE OF KARNATAKA REPRESENTED BY THE MICO LAYOUT POLICE STATION, REPRESENTED BY THE SPP, HIGH COURT BUILDING, AMBEDKAR VEEDHI, BANGALORE- 560001 2. MR. SONU @ SOMENDRA KATUVA S/O MR HEMANT KATUVA, AGED ABOUT 30 YEARS C/O. MUNIRAJU BUILDING, NEAR MARIYAMMA TEMPLE, KAVERINAGAR, ITPL ROAD, WHITEFIELD, BANGALROE 560048 ... RESPONDENTS (BY SRI S.RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE PROCEEDINGS IN C.C.NO.2263/2018 INITIATED VIDE ORDER DATED 20.01.2018 (ANNEXURE-A) PASSED BY THE VI A.C.M.M., BANGALORE TAKING COGNIZANCE AGAINST THE PETITIONERS (ACCUSED NO.4 AND 5) FOR THE ALLEGED OFFENCES P/U/S 338 R/W 149 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners, who have been arraigned as accused Nos.4 and 5 in C.C.No.2263/2018 are before this Court for quashing of the proceedings, which has been registered against them for the offence punishable under Sections 338 r/w 149 of IPC.
2. Statement of the 2nd respondent came to be recorded by the Casual Medial Officer, General Hospital, Jayanagar, Bengaluru on 06.10.2016 at 2.00 p.m. Based on which, MICO Layout Police registered the said complaint in Cr.No.828/2016 for the offence punishable under Section 338 r/w 148 IPC.
3. The gist of the complaint is that 2nd respondent (complainant), on instructions of petitioners, on 01.10.2016 at about 1.00 p.m., was carrying out the work of fixing a panel board on the 2nd floor of Blue Horizon Hotel (building under construction) by instructing him to stand on a steel stool which slipped and as a result of it he claims to have fallen from 2nd floor resulting in fracture of right hand and sustaining injuries to vertebra. Hence, he alleged that on account of injuries sustained, he could not get up and at that point of time, Supervisor at a site and others immediately shifted him to Jayadeva Hospital and after being administered First Aid, was shifted to Jayanagar General Hospital as an in-patient. Alleging that the petitioners and the building owners had not taken care and protection to prevent such accidents and as a result of their negligence he suffered grievous injuries. Said complaint, as already noticed herein above, came to be registered as Cr.No.828/2016 and on completion of investigation, charge sheet came to be filed against petitioners-accused herein (A4 and A5) in C.C.No.2263/2018 for the offence punishable under Section 338 r/w 149 of IPC. Hence, for quashing of said proceedings, petitioners are before this Court.
4. Heard Sri B.K.Sampath Kumar, learned counsel appearing for petitioners and Sri S.Rachaiah, learned HCGP appearing for respondent No.1-State. Perused the records.
5. It is the contention of Sri B.K.Sampath Kumar, learned counsel appearing for the petitioners that alleged incident took place on 01.10.2016 and complaint came to be filed after a gap of five days i.e., on 06.10.2016 and as such, there is a serious doubt with regard to the occurrence of the accident itself; he would further contend that alleged wound certificate which has been taken note of by the Investigating Officer to implicate petitioners ought not to have been accepted by the learned Magistrate at the time of taking cognizance since said wound certificate is alleged to have been issued after one year from the date of incident i.e., 26.09.2017 and on perusal of said wound certificate it would indicate that it is a case of assault and as such for implicating petitioner for the alleged offence does not arise. Hence, he prays for quashing of the proceedings. He would also draw the attention of the Court to the Contract Agreement entered into between petitioners and their client i.e., M/s.Blue Horizon Hotels Pvt. Ltd., who had entrusted certain works in the building to contend the scope of the work which has been indicated in the agreement would clearly indicate it relates to the work to be executed in the basement and the alleged fall from the second floor by the 2nd respondent-complainant can in no way be connected to the petitioners and as such, there being no nexus to the Contract Agreement of the petitioners with their client and the alleged accident, continuation of proceedings against petitioners would not only be onerous but also abuse of process of law and as such, he prays for quashing of the proceedings.
6. By relying upon the statement of father of 2nd respondent-complainant recorded by the Investigating Officer during the course of investigation, he would contend father is said to have seen the complainant on 02.10.2016 whereas Doctor is said to have seen him on 05.10.2016, which statement being contrary to each other and said material disclosing that prima facie complaint in question had been lodged with an intention to harass petitioners and extract money from them. Hence, he prays for quashing of the proceedings by allowing the petition.
7. Per contra, Sri S. Rachaiah, learned HCGP appearing for 1st respondent-State would support the case of the prosecution and prays for dismissal of the petition.
8. It is trite law that quashing of criminal proceedings is called for only in a case where complaint does not disclose any offence or same being frivolous or vexatious. If the allegations set out in the complaint do not constitute any offence and cognizance has been taken by the learned Magistrate, it would be open for this Court to quash the proceedings at the time of consideration of such prayer. This Court would not embark upon conducting any meticulous analysis of the material relied upon by the prosecution before trial court. This Court would also not undertake to find out as to whether charge sheet material would end in conviction or acquittal. It is well settled law while taking cognizance, learned Magistrate would be required to apply his judicious mind to find out whether any prima facie case is made out against the accused persons. Learned Magistrate is not required to evaluate the correctness of such material produced by the prosecution. In the event of charge sheet material disclosing offence alleged, it would suffice for this Court to desist from invoking extraordinary jurisdiction. The probable defence or the omissions and contradictions that may be found would also be alien at the time of considering the plea for quashing of proceedings. The only question which would arise is whether averments made in the complaint as well as the charge sheet material disclose the ingredients of the offence alleged or not.
9. It is in this background, complaint as well as charge sheet material will have to be considered along with the contentions raised by the learned counsel appearing for petitioners.
10. A plain reading of the complaint in question would indicate that complainant was working as an electrician in the basement of the building i.e., M/s.Blue Horizen Hotel, which was under construction. He claims to have been engaged by the petitioners and in the process of discharging his duties he is said to have been called upon by his employers to fix an electric panel board in the 2nd floor of the building on 01.10.2016 at about 1.00 p.m. Hence, he is said to have been fixing the said panel board by standing on a steel stool which gave away resulting in complainant falling from 2nd floor to ground floor and sustaining injuries and consequential disability. The Contract Agreement which has been relied upon by the learned counsel appearing for the petitioners dated 08.12.2010 entered into with their client-2nd petitioner namely M/s.Blue Horizon Hotels Pvt. Ltd., no doubt depicts the scope of work has been defined and it is for supply, installation, testing and commissioning of low side works for the Basement ventilation. For carrying out the work in basement whether complainant was required to go to 2nd floor or not is an issue which will have to be thrashed out during trial. That apart, if the employer had directed the employee-complainant to attend certain work in the 2nd floor as claimed by the complainant would also be an issue which will have to be examined by the learned Trial judge based on the evidence prosecution may place before it. Merely on the ground of Contract Agreement not indicating that complainant was not required to work in 2nd floor by itself would not be a ground to disbelieve the statement of the complainant particularly when allegations made in the complaint would disclose the offence alleged. In that view of the matter, contention raised in that regard stands rejected.
11. Insofar as contention regarding wound certificate is shrouded inconsistencies and heavily relied upon by learned counsel for the petitioners also requires to be brushed aside for the simple reason that Dr.Ravindra, who is said to be an Orthopedic Surgeon has seen the complainant on the 05.10.2016. Whereas the incident occurred on 01.10.2016. Merely because the person who has certified contents of the wound certificate relating to 2nd respondent/complainant was on 05.10.2016, it cannot be held at this stage that complaint was not attended to by any other Doctor on previous dates at all. In order to establish the nature of wound sustained by the complainant, the wound certificate has been produced. It is no doubt true that said wound certificate has been issued on 26.09.2017. The date of issuance of wound certificate is pales into insignificance in as much as it only certifies the date on which it has been issued and it does not depict the date on which patient had sustained injuries. In fact, wound certificate in question would clearly indicate date and time on which patient was seen by the signatory to the said Certificate. As such, omissions and contradictions, if any, will have to be established after a full-fledged trial. Hence, contention raised in that regard also cannot be accepted.
12. The next issue is with regard to entry having found in the wound certificate depicting it as ‘Assault’ made by the Doctor. As to whether said entry has been made was based on the statement made by the complainant or it is reflected in MLC Register is an issue which will have to be thrashed out during the course of trial. This would also receive support from the statement of the complainant recorded by the Chief Medical Officer on 06.10.2016 at 2.00 pm., wherein complainant i.e., 2nd respondent herein has in detail narrated the sequential events as to how and when the accident in question had occurred and the resultant injuries suffered by him. In fact, statement of the father of the complainant recorded by Investigating Officer during course of investigation which has been produced as noticed herein above would clearly indicate the reason for not lodging the complaint immediately after the accident namely on account of assurance said to have been made by the petitioners- owners of the building that they would take care of medical expenses that may be incurred by the complainant. When they failed to take steps as assured, complainant is said to have been forced to lodge the complaint. Hence, no fault can be found in filing the complaint on 06.10.2016 i.e., five days after the incident by the complainant against petitioners herein. No other good ground is made out to quash the proceedings against petitioners. Hence, petition stands rejected.
In view of rejection of main petition, I.A.1/19 does not survive for consideration and it stands rejected.
Sd/- JUDGE TL