IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.2489/2016 BETWEEN:
1. MR.UDAYAKUMAR, S/O.DATTA GURUNATH, AGED ABOUT 54 YEARS, R/AT NO. 50, 17TH MAIN ROAD, HAL 2ND STAGE, INDIRANAGAR, BENGALURU-560 038.
2. MR.NANJUNDASWAMY, S/O. LATE. SRI. Y.H. NAGARAJ, AGED ABOUT 48 YEARS, R/AT NO. 428, 8TH MAIN ROAD, VIJAYANAGAR, BENGALURU-560 040.
3. MR.A.H.SHERIFF, S/O. LATE. MR. ABU BEKAR, AGED ABOUT 78 YEARS, R/AT NO. 442, 8TH MAIN ROAD, 4TH BLOCK, KOARAMANGALA, BENGALURU-560 034.
(BY SRI.C.R.GOPALASWAMY, ADVOCATE) ... PETITIONERS AND:
1. STATE OF KARNATAKA BY CUBBON PARK POLICE STATION, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU-560 001.
2. ASSISTANT EXECUTIVE ENGINEER, RICHMOND TOWN SUB-DIVISION, BRUHAT BENGALURU MAHANAGARA PALIKE, BENGALURU-560 025.
... RESPONDENTS (BY SRI.VIJAYAKUMAR MAJAGE, ADDL.SPP FOR R1; R2-SERVED AND UNREPRESENTED) ---
THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C., PRAYING TO QUASH THE CHARGE SHEET FILED BY THE RESPONDENT- POLICE AND ENTIRE PROCEEDINGS IN C.C.NO.4804/2009 ON THE FILE OF THE VIII ADDL.C.M.M., BENGALURU (ARISING OUT OF CRIME NO.217/2008 OF RESPONDENT POLICE), FOR THE OFFENCES P/U/S 337, 338 AND 304(A) OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This petition is filed under section 482 Cr.P.C. seeking to quash the charge sheet laid against the petitioners for the offences punishable under sections 337, 338, 304(A) of IPC. Petitioners are arrayed as accused Nos.1 to 3 in the charge sheet.
2. The case of the prosecution is that, on account of collapse of the centering while laying concrete to the first floor of the building under construction, in the morning hours at 4.00 a.m. of 26/27.09.2008, one Nandu Yadav, who was working as Centering Assistant, died at the spot.
3. Accused No.1 was the Contractor. He entered into an agreement with the owner-accused No.4 to execute the work of construction in terms of Articles of Agreement dated 20.09.2007. Accused No.2 was the Site Engineer and accused No.3 was the Architect of the said construction at the relevant time.
4. The contention of the learned counsel for petitioners is that the alleged accident had taken place due to negligence of the person who built the centering. The petitioners have got nothing to do with the centering work. The alleged accident has not taken place on account of any act of negligence by petitioners and there is no nexus between the accident and the work entrusted to petitioners in the matter of construction of building and therefore, the prosecution of petitioners for the above offences is illegal and an abuse of process of court.
5. Learned Addl. SPP appearing for respondent No.1, however, argued in support of the impugned action contending that the material on record clearly disclose that the alleged accident has taken place on account of negligence of petitioners who failed to take proper care required of them as Contractor, Engineer and Architect and therefore, the petitioners are liable for negligence under section 304A of Indian Penal Code and hence, there is no reason to quash the proceedings.
6. Respondent No.2 though served, has remained unrepresented.
7. Considered the rival submissions and perused the records.
8. Section 304A of Indian Penal Code reads thus:
“304A. Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not amounting 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.”
9. ‘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 for the offence under Section 304A 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 deceased died on account of collapse of the centering while laying concrete to the first floor of the building under construction. As already stated above, the construction work was taken up by accused No.1 Sri.Uday Kumar (contractor) as per the terms and conditions of the Articles of Agreement dated 20.9.2007. In terms of the said agreement, failure of accused No.1 to provide necessary safety measures for labourers, would primarily render him liable for the negligence leading to the death of the deceased. Accused No.2 was the Site Engineer. He used to look after the construction work and accused No.3 was the Architect of the said construction at the relevant time.
10. Learned counsel has produced a copy of the order passed by this court in Criminal Petition No.936/2011 dated 20.1.2016 wherein this court has quashed the charge sheet filed against accused No.4 namely the owner of the said building. Accused Nos.2 and 3 also stand on the same footing as that of accused No.4.
11. It is now well settled that in order to constitute an offence under section 304A of Indian Penal Code, the negligence imputed to the accused must 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 (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’.”
12. 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.”
In the light of the above legal position and in the factual matrix of the case, in my view, only accused No.1 falls within the net of section 304A of IPC. As a result, petition filed by accused No.1 is liable to be dismissed.
Accordingly, petition is allowed-in-part. Petition filed by petitioner No.1/accused No.1 is dismissed. The trial shall proceed against accused No.1 in accordance with law.
Petition filed by accused Nos.2 and 3 is allowed. Charge sheet laid against petitioner Nos.2 and 3/accused Nos.2 and 3 in C.C.No.4804/2009 on the file of the VIII Addl.C.M.M., Bengaluru (arising out of Crime No.217/2008 of respondent No.1 police) is quashed.
Liberty is reserved to petitioner No.1/accused No.1 to seek discharge on such grounds available under law. Since the charge sheet was filed in 2009, Trial Court is directed to expedite the matter and complete the trial within a period of nine months from the date of communication of this order.
Sd/- JUDGE Bss