IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.268/2019 BETWEEN:
1. SRI. NATARAJ P S/O RAGHURAM AGED ABOUT 58 YEARS R/AT NO.428, 10TH CROSS 20TH MAIN, J.P. NAGAR 2ND STAGE BENGALURU - 560 078.
2. SMT. SUDHA NATARAJ W/O NATARAJ AGED ABOUT 51 YEARS R/AT NO.428, 10TH CROSS 20TH MAIN, J.P. NAGAR 2ND STAGE BENGALURU - 560 078.
... PETITIONERS (BY SMT. RAKSHA KEERTHANA K., ADVOCATE) AND:
1. STATE OF KARNATAKA BY KONANAKUNTE POLICE STATION REP. BY ITS PUBLIC PROSECUTOR HIGH COURT COMPLEX BENGALURU - 560 001.
2. SRI. MAHESH S/O LATE OF THANGAVELU AGED ABOUT 32 YEARS RESIDING AT NO.145/4 24TH CROSS, RAJIV GANDHI NAGARA, H.S.R. LAYOUT 7TH SECTOR BENGALURU CITY - 68. (BY SRI. S. RACHAIAH., HCGP) ... RESPONDENTS THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE CHARGE SHEET FILED BY THE RESPONDENT POLICE IN CR.NO.34/2018 AND C.C.NO.6377/2018 FOR THE OFFENCE P/U/S 338 AND 288 OF IPC, PENDING ON THE FILE OF II ADDL.C.M.M., BENGALURU.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners who are arraigned as accused Nos.1 and 3 in C.C.No.6377/2018 registered for the offence punishable under Sections 338 and 288 of IPC, are before this Court for quashing of said proceedings pending on the file of II Additional Chief Metropolitan Magistrate, Bengaluru.
2. I have heard the arguments of Smt. Raksha Keerthana K, learned Advocate appearing on behalf of Sri. Kemparaju, for petitioners and Sri. S. Rachaiah, learned HCGP appearing for respondent No.1 and notice to respondent No.2 stands dispensed with.
3. Second respondent-complainant is a mason, who was working at an undisputed point of time with accused No.2- Sri. Palani and he had undertaken construction of residential building at J.P. Nagar, 7th phase belonging to petitioners. On 25.12.2017 at about 9.00 a.m. first petitioner (accused No.1) along with accused No.2 visited the said building which was under construction and accused No.2 is said to have instructed complainant to immediately carryout the plastering work on the out side of the 7th floor and at that point of time, complainant requested for helmet and safety belt being provided and accused Nos. 1 and 2 is said to have informed complainant that they have been carrying out construction activity from past thirty years and nothing would happen if plastering work is carried out in 7th floor even without safety belt and helmet. Hence, petitioners are said to have directed complainant to carry out plastering work.
4. It is the grievance of the complainant that he had carried out said work as directed, as he had no option but to follow the dictates of his employer including petitioner in order to eke out his livelihood and while attending to said work by standing on the centering board it gave away as such he had slipped and fallen from 7th floor resulting in grievous injuries being sustained to hand and legs, as a consequence of which his right hand was cut and thigh bone was fractured apart from sustaining other serious grievous injuries. Hence, he sought for suitable action being taken against accused persons.
5. Jurisdictional police registered said compliant in Crime No.34/2018 for the offence punishable under Sections 338 against accused Nos. 1 and 2 initially and after completion of investigation they have arraigned second petitioner i.e., wife of first petitioner as accused No.3. Hence, petitioners are before this Court for quashing of said proceedings.
6. It is the contention of Smt. Raksha Keerthana K, learned Advocate appearing on behalf of Sri. Kemparaju, for petitioners that filing of charge sheet against petitioners is without any foundation and there being no material whatsoever, to implicate petitioners and they have been arraigned as accused. Hence, she prays for quashing the proceedings.
7. She would also rely upon the purported agreement said to have been entered into by the petitioner with accused No.2 (contractor) to contend that it would be the contractor (accused No.2) who had to take responsibility for providing safety measures to workmen and as such no mens-rea can be attributable to petitioners merely because they are owners of the building. Hence, she prays for allowing the petition and quashing the proceedings.
8. Per contra, Sri. S. Rachaiah, learned HCGP appearing for respondent No.1 would support filing of charge sheet which would disclose offence alleged against petitioners including accused No.2 (not before this Court). As such, he prays for dismissal of the petition.
9. Having heard the learned Advocates appearing for parties and on perusal of records it would disclose that in the complaint itself it is specifically alleged by second respondent complaining to the effect that first petitioner and second respondent were present at the spot and it is only on their directions he was perforced to carryout the work without any safety measures being extended to him. Thus, prima facie of Sections 338 and 288 of IPC would be attracted. As to whether there was negligence on the part of accused-petitioners or otherwise is a matter which will have to be examined by trial Court after prosecution examines its witnesses. At this juncture, this Court cannot undertake the exercise of analyzing the charge sheet material to arrive at a conclusion as to whether no guilt can be attributable to petitioner No.1 or not. Hence, this Court is of the considered view that insofar as accused No.1 (first petitioner) is concerned there is no ground to entertain this petition. However, accused No.2 is concerned, who is wife of the petitioner No.1 is the owner of the premises in which accident took place and she has been arraigned as accused No.3 in C.C.No.6377/2018 and said proceedings cannot be proceeded against her inasmuch in the event of charge sheet material were to remain un-rebutted, it would not end in conviction of accused No.3 i.e., second petitioner herein. Merely because she happens to be the owner of the building, she cannot be proceeded with particularly when there is no allegation of any negligent act attributable to her. In the absence thereof, no mens-rea is attributable to second petitioner or willful neglect on her part. In such circumstances title holder of the property cannot be prosecuted and convicted thereafter. In the light of categorical statement made by the witnesses that accused Nos.1 and 2 were present at the spot and on their direction, complainant had undertaken plastering work at 7th floor of the building, they are being proceeded with. Hence, there being no act attributed to accused No.3 for any neglect, she cannot be proceeded with.
For the aforestated reasons, I proceed to pass the following:
ORDER (i) Criminal petition is allowed in part.
(ii) Proceedings pending against petitioners in C.C.No.6377/2018 for the offences punishable under Sections 388 and 288 IPC registered by Konanakunte Police Station, insofar as petitioner No.2 – accused No.3, is quashed and she is acquitted of said offences.
(iii) It is made clear that proceedings shall continue against other accused persons.
SD/- JUDGE RU