IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE CRIMINAL PETITION NO.1804 OF 2018 BETWEEN:
Sri Ajay Kumar S/o L.Govindraj Aged about 48 years Occ: Advocate R/o No.19 36th A Cross, 7th Block Jayanagar Bengaluru-560080. ... PETITIONER (By Sri.Veeranna G Tigadi, Advocate) AND:
1. Sri.H.T.Krishnappa S/o Tyarappa Aged about 64 years Retired Government Servant Water Tank Road, III Cross A.K.Colony, Hiriyur District: Chitradurga-577598.
2. State of Karnataka Represented by Sub-Inspector of Police, Hiriyur Town Police Station Hiriyur, Dist: Hiriyur-577598 Rep. by State Public Prosecutor Hon’ble High Court of Karnataka Bengaluru. ... RESPONDENTS (By Sri.Vijayakumar Majage, Addl. SPP for R-2, R-1 served and unrepresented) This Criminal Petition is filed under Section 482 of Cr.P.C. praying to 1. Set aside the order dated 21.12.2017 taking cognizance of the offence p/u/s. 288, 337 of IPC against the petitioner/accused No.2 in C.C.No.1034/2017 pending on the file of Principal Civil Judge and JMFC, Hiriyur. 2. Quash all further proceedings in Criminal Case No.1034/2017 pending on the file of Principal Civil Judge and JMFC, Hiriyur (Annexure-D).
This Petition coming on for Admission, this day, the Court made the following:-
ORDER The petition is admitted for hearing. With consent of the parties, same is heard finally.
2. In this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’ for brevity), petitioner inter alia seeks quashment of proceedings initiated against him for the offences under Sections 288 and 337 of Indian Penal Code (hereinafter referred to as ‘IPC’ for brevity).
3. Facts giving rise to filing of this petition briefly stated are that on 2.8.2017 at about 7.00 p.m. respondent No.1 filed a complaint to respondent No.2 in which inter alia it was averred that when the complainant and others at about 6.45 p.m. had gone to one Sri Durga Hotel in front of Nehru Maidan to have tea and was having tea in front portion of the hotel, at that time, one portion of the wall of the hotel collapsed, as a result of which, iron angles and thin sheets fell on them. As a result of aforesaid accident, the complainant sustained injuries on his head, right elbow and waist. Thereupon, the police authorities have registered first information report against the petitioner and filed a charge sheet for offences under Sections 288 and 337 of IPC. The Magistrate, by an order dated 21.12.2017, has taken cognizance of the offences punishable under Sections 288 and 337 of IPC against the petitioner and issued process. In the aforesaid factual background, the petitioner has approached this Court.
4. Learned counsel for the petitioner submitted that even if the allegations in the complaint are taken at their face value to be correct, then also the offences under Sections 288 and 377 of the IPC are not made out. It is submitted that provisions of Section 288 would be attracted in a case where the building is being pulled down or repaired. In support of his submission learned counsel for the petitioner has referred to a decision in the case of Vinayak Laxman Vartak Vs. Laxmidas Vithaldas Ganatra reported in (1992) 1 Bom CR 447.
5. On the other hand, learned Additional State Public Prosecutor has supported the order passed by the trial Court. I have considered the submissions made by the learned counsel for the parties.
7. From the perusal of the decision rendered by Bombay High Court in the case of Vinayak Laxman Vartak supra it is evident that an offence under Section 288 can be committed only when the building is being pulled down or is repaired. In the instant case, the building was neither being pulled down nor being repaired. The wall of the hotel collapsed while the complainant was having tea in the hotel. Therefore, even if the averments made in the complaint are taken to be correct at their face value, do not make out an offence under Section 288 of the IPC against the petitioner.
8. Similarly, Section 337 of IPC deals with causing hurt by an act endangering life or personal safety of others. The petitioner had no role in causing collapse of wall of the hotel. Therefore, the ingredients of the offence under Section 337 of IPC are also not made out. In the fact situation of the case, continuance of the proceeding against the petitioner amounts to abuse of process of law and therefore, the proceeding against the petitioner cannot be permitted to continue.
9. In view of the preceding analysis, the proceedings initiated against the petitioner in C.C.No.1034/2017 pending in the Court of Principal Civil Judge and JMFC., Hiriyur is hereby quashed.
In the result, petition is allowed.
Sd/-
JUDGE bkp