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Madras High Court · body

2009 DIGILAW 4059 (MAD)

Geetha Ramesh v. Sub Inspector of Police

2009-10-05

P.R.SHIVAKUMAR

body2009
Judgment : The petitioners, who have been arraigned as A3 to A5 in C.C.No.100 of 2008 on the file of the learned Judicial Magistrate, Udagamandalam, a case taken on file based on the final report of the respondent submitted after investigation in Crime No.109 of 2006 registered on the file of G1, Town West Police Station, Udagamandalam, have filed this petition under Section 482 Cr.P.C. for quashing the final report filed against them in the above said case for offences punishable under Sections 304-A and 337 I.P.C. 2. The facts leading to the filing of this petition can be summarized as follows: The third petitioner herein is an Advocate practicing in High Court of Madras. First petitioner is the wife and the second petitioner is the son of the third petitioner. The first and second petitioners have jointly purchased the property comprised in Survey No.32 of Theettukkal Village, Udagamandalam Town, Nilgiris District under a sale deed dated 23.9.2005 bearing Document No.961 of 2005 registered in the office of the Sub-Registrar, Udagamandalam. Total extent of the property is 22 cents. As the petitioners wanted to construct a house in the said land, they engaged the first accused. In the above said case by name Sundaram @ Sundaramoorthy as the contractor for doing the construction work. After performing Boomi Pooja in the month of January 2006, the said contractor engaged the second accused Nanda @ Nanda Kumar as labour Sub-Contractor for doing the earth work to construct a retaining wall. While the earth work was in progress, the earth caved in and there occurred a land slide on 28.2.2006 at about 3.30 p.m. which resulted in the death of one of the women workers by name Jayasri and injuries to six other workers engaged by the subcontractor. Pursuant to the said accident, the statement of Jayaram, husband of the deceased was recorded by the police and a case was registered in Crime No.109 of 2008 on the file of Udagamandalam West Police Station for alleged offences punishable; under Sections 337 and 304A against three named accused persons. They are 1. Sundaram @ Sundaramoorthy, 2. Ramesh, the respondent herein and 3. Nanda @ Nandakumar, the Sub-contractor. The above said Sundaram @ Sundaramoorthy and Nandakumar were described in the First Information Report as Engineer and mason (masthri) respectively. They are 1. Sundaram @ Sundaramoorthy, 2. Ramesh, the respondent herein and 3. Nanda @ Nandakumar, the Sub-contractor. The above said Sundaram @ Sundaramoorthy and Nandakumar were described in the First Information Report as Engineer and mason (masthri) respectively. After Investigation, the respondent submitted a final report alleging commission of offences punishable under Sections 337 and 304-A I.P.C by the petitioners herein and the above said Sundaram @ Sundaramoorthy and Nanda @ Nandakumar. The array of parties has been rearranged as follows: A1 – Sundaram @ Sundaramoorthy, A2 – Nanda @ Nandakumar; A3 – Geetha Ramesh, A4 – Aswan and A5 – V. Ramesh In the said final report, it was alleged that A1 and A2 building contractor and labour Subcontractor and A3 to A5 being owners and beneficiaries of the work undertaken by A1 and A2 failed to take care by providing safety equipments to the workers engaged in digging the earth for foundation work and hence they were liable to be prosecuted and punished for an offence punishable under Section 304-A regarding the death of Jayasri and six counts of an offence punishable under Section 337 I.P.C relating to the injuries caused to Malathy, Yasodha, Munisamy, Parvathy, Vasantha and Vijaya, all engaged as workers for the foundation work. The learned Judicial Magistrate, Udagamandalam took cognizance of the offences by taking the case on file as C.C.No.100 of 2008 and issued process to the accused persons including the petitioners. Aggrieved by the same, Accused No.3 to 5 (petitioners 1 to 3 herein) have come forward with the present petition under Section 482 Cr.P.C for quashing the above said final report so far as the petitioners are concerned. 3. The petition was taken up for hearing on merit, without formally admitting the same, after the respondent entered appearance through the Government Advocate (Crl. Side). The learned Government Advocate (Crl. Side) representing the respondent police came forward to argue the case without filing a formal counter affidavit. Thus, the arguments advanced by Mr. A. Ramesh learned senior counsel representing Mr. T. Thiyagarajan, learned counsel for the petitioner and by Mr. I. Paul Nobel Devakumar, learned Government Advocate (Crl. Side) representing the respondent were heard. The petition, affidavit and the documents submitted in the form of typed set of papers were also perused. 4. Thus, the arguments advanced by Mr. A. Ramesh learned senior counsel representing Mr. T. Thiyagarajan, learned counsel for the petitioner and by Mr. I. Paul Nobel Devakumar, learned Government Advocate (Crl. Side) representing the respondent were heard. The petition, affidavit and the documents submitted in the form of typed set of papers were also perused. 4. The admitted facts are as follows: The first petitioner (A3) and second petitioner (A4) are the wife and son of the third petitioner (A5). First and second petitioners are the owners of the land comprised in Survey No.32 of Theettukkal Village, Udagamandalam Town, Nilgiris district. On 28.2.2006 while doing earth work for constructing a retaining wall in the said property the earth caved in and seven of the workers got trapped. The same ultimately resulted in the death of the one of the workers and injuries to the other six workers, First accused Sundaram @ Sundaramoorthy was the contractor who was entrusted with the job of obtaining sanction for the building plan and putting up the proposed construction. For the construction of a retaining wall on the border of the land, a pit was dug to a length of 130 feet and a breadth of 5 feet. The pit was dug to a depth of 25 feet. None of the petitioners was present in the place of occurrence: However, not only the contractor and the labour subcontractor who have been arraigned as accused No.1 and 2, but also the petitioners (A3 to A5) are sought to be prosecuted for causing death and causing injury by a rash and negligent act punishable under Sections 304-A and 337 I.P.C. 5. The learned senior counsel for the petitioner contended that for prosecuting a person either for an offence punishable under Section 304-A or for an offence punishable under Section 337 I.P.C, there must be a direct nexus between the negligence on the part of the person sought to be prosecuted and the consequences, namely death or injury and that in the absence of such nexus, the prosecution was bound to fail ultimately. It is the further contention of the learned senior counsel for the petitioners that in case the prosecution is bound to ultimately result in acquittal even if the statement of the witness recorded under Section 161 Cr.P.C are to be taken on their face value and accepted to be 100% correct, then no useful purpose will be served by prosecuting the person and that in such circumstances, the prosecution launched against such person is liable to be quashed in exercise of the inherent power of the High Court under Section 482 of Cr.P.C. 6. Per contra, the learned Government Advocate, (Crl. Side) representing the respondent police, submitted that the petitioners having entrusted the job of digging earth for the foundation work should have taken precautions to prevent any possible land slide; that they should have supplied proper safety equipments and made arrangements to see that no casualty or injury to the workers would ensue in case of any mishap and that hence they were also liable to be prosecuted for the above said offences. It is the further contention of the learned Government Advocate (Crl. Side) that the petitioners being the land owners at the time of entrusting the work to the contractor, while allowing the contractor to engage a labour sub-contractor should have given them proper instructions to apply safety measures to prevent loss of life or injury to the workers at the place of work that there is nothing to show that they had done so and that hence it cannot be contended that acquittal of the petitioners in such prosecution would be inevitable. It is the further contention of the learned Government Advocate (Crl. It is the further contention of the learned Government Advocate (Crl. Side) that even otherwise the petitioners having engaged; the contractor and the labour subcontractor through whom the work was being carried out, should be held vicariously liable for the negligence on the part of the contractor and subcontractor and that hence all the petitioners are liable to be prosecuted along with the contractor and subcontractor for the offences punishable under Sections 304-A and 337 I.P.C. The petitioners having allowed the contractor and subcontractor to dig the earth at the dimensions of 130 feet (length) x 5 feet (breadth) x 25 feet (depth) should have anticipated possible land slide and the fact that such a pit was dug without even getting approval for a plan, would also make obvious that the petitioner’s omission had also contributed for the mishap and the consequences, the learned Government Advocate (Crl. Side) contended. 7. The only question, answer to which will help the Court to dispose of the petition is, “whether there was any negligence on the part of the petitioners by any act of commission or omission constituting the direct cause for the accident leading to the death of one of the women workers (Jayasri) and injury to six other workers?” 8. It is not in dispute that the petitioners were not present in the place of occurrence when the accident took place. It is also not the case of the prosecution that either the contractor (A1) or labour subcontractor (A2) or the workers were under the direct supervision of any one of the petitioners at the time of accident. It is also not the definite case of the prosecution that the petitioners prescribed the dimensions earth to be excavated. On the other hand, it is the specific contention of the petitioners that after the purchase of land in the names of the first and second petitioners, the contractor (A1) was entrusted with the job of getting sanction for the building plan from the competent authority for constructing a building therein; that the contractor (A1) informed the petitioners that no permission need be obtained for construction of a retaining wall and that the contractor (A1) himself started doing the earth work engaging the labour subcontractor (A2). It is the contention of the petitioners that, if at all there was any negligence which lead to the unfortunate accident, the same could be attributed to the contractor and subcontractor alone and the petitioners cannot be held liable under the criminal law vicariously. 9. On the other hand it was contended on behalf of the respondent police that the petitioners, having engaged and allowed accused 1 and 2 to do the excavation work for the construction of a retaining wait without contemplating a land slide and allowing the workers to work in the pit without providing safety equipments, should be held to have acted with negligence as there was absence of proper care and that hence there was direct nexus between the want of care on the part of the petitioners and the consequences, namely death of one of the workers and injuries to six of the workers. This Court has to decide at the first instance whether there was any such negligence on the part of the petitioners and if so, whether the consequences, namely death of one of the workers and injuries caused to six of the workers were the direct results of the negligence on the part of the petitioners. All the land owners who wish to put up construction, cannot be expected to do it personally or through other persons under their supervision. The owner of the land, who proposes to construct a building cannot be said to have acted with negligence if he had entrusted the construction work to a qualified contractor. If at all there is any negligence or want of care on the part of the owner of the land in selecting an unqualified person as contractor, then one may say that the owner of the land in selecting an unqualified person and entrusting the work to him has acted with negligence or that he had not acted diligently in selecting the contractor and entrusting the work to him. If at all an unqualified person is entrusted with such job, the owner may be expected to know the consequences that may flow from such entrustment which will include defective execution leading to such mishaps as the one occurred in this case. On the other hand, the land owner being a person having no technical knowledge has to depend on the qualified contractors for the execution of the work. On the other hand, the land owner being a person having no technical knowledge has to depend on the qualified contractors for the execution of the work. When the execution work is entrusted to a qualified contractor, then the owner of the land cannot be stated to have acted with negligence. In this case, admittedly A1 is a reputed building contractor, though not a qualified engineer. For more than 10 years, he had taken up the works as building contractor and gained knowledge. He had also got sufficient experience as a building contractor in Udagamandalam. Therefore, as rightly contended by the learned counsel for the petitioners, there was no rashness or negligence on the part of the petitioners in selecting the contractor. 10. The learned senior counsel for the petitioners contended that there was no negligence on the part of the any one of the petitioners which was the direct cause of the accident leading to the death of one of the workers and injuries to six of the Workers and that in criminal cases the owner of the properties/premises cannot be held vicariously liable for the negligence of the contractors or his servants unless such liability is cast by a statute. It is the contention of the learned counsel for the petitioners that the offence punishable under Section 304-A or Section 337 I.P.C cannot be equated with offences described in the corresponding provisions found in labour legislations prescribing penal consequences on the part of the occupier of the factory for failure to provide with safety equipment’s to the workers. It is his father contention that the act or omission constituting negligence on the part of the petitioners should have direct nexus to the result; namely death or injury without there being any intervention of negligence of other persons to hold the petitioners liable to be prosecuted for the offences punishable under Sections 304-A or 337 I.P.C. In support of his contentions, the learned counsel for the petitioners cited the following precedents: 1. Kurban Hussein Mohameddalli Rangawalla (Appellant) v. State of Maharashtra AIR 1965 SC 1616 : (1966) 1 MLJ (Crl) 123 2. SulemanRettiman Munani and Another v. State of Maharashtra, AIR 1968 SC 829 : (1968) 1 MLJ (Crl) 556 3. Ambalal D. Batt v. State of Gujarat, AIR 1972 SC 1150 : (1972) SCC (Cri) 618 : (1972) 1 MLJ (Crl) 611. 4. SulemanRettiman Munani and Another v. State of Maharashtra, AIR 1968 SC 829 : (1968) 1 MLJ (Crl) 556 3. Ambalal D. Batt v. State of Gujarat, AIR 1972 SC 1150 : (1972) SCC (Cri) 618 : (1972) 1 MLJ (Crl) 611. 4. Public Prosecutor v. Moopanor @ Pichiah Pillai AIR 1970 Mad 198 ; 5. A. Venkataraman v. State (1989) L.W. (Cri) 382 and 6. Kanadikara Rajendran v. State (1990) 1 L.W. (Crl) 482. Relying on the above cited decisions; the learned-senior counsel for the petitioners submitted that once the owner of the premise entrusted the construction work to a contractor, be shall not be held liable to be prosecuted for any act of negligence on the part of the contractor which would result in death or injury to anybody as no vicarious’ criminal liability can be imputed in the absence of “a statutory provision prescribing such vicarious liability. The learned counsel also contended that even if it is assumed that there was negligence or omission to take care in selecting the contractor, if the said negligence omission does hot directly result in the death or injury, the petitioners could not be prosecuted and punished for causing death or injury by rash and negligent act simply because the person selected as contractor to accomplish the job was not qualified to do the work and he executed the work in rash and negligent manner which resulted in the death or injury to persons. In support of his above said contention, the learned senior counsel for the petitioners very much relied on the judgment of the Madras High Court in A. Venkatram v. State (supra) and the judgment of the Supreme Court Kurban Hussein Mohameddalli Rangawalla (Appellant) v. State of Maharashtra (supra). 11. Per contra, the learned Government Advocate (Crl.Side), representing the respondent police, would contend that the facts of the – cases cited by the learned senior counsel for the petitioners could be distinguished from the facts of the case on hand and that none of the cases cited by the learned senior counsel for the petitioners would support the contention of the petitioners herein in this case. According to the submissions made by the Government Advocate (Crl.Side), in all the cases relied on by the learned senior counsel for the petitioners it was held that though there had been violation of the statutory provisions on the part of the owner of the factory/premises/vehicle, the same alone was not the direct cause of the death or injury to persons and that there were negligence on the part of the other persons intervening which alone resulted in the death or injury to the victims. 12. Let us now consider the applicability of the law laid down in the cases cited by the learned counsel for the petitioner to the facts of the case on hand. In Kurban Hussein Mohameddalli Ranga walla (Appellant) v. State of Maharashtra (supra) a factory licensed to manufacture dry paints was converted to a process of manufacturing wet paints by heating. One of the employees, white adding turpentine to the melted rosin did it negligently before it got fully cooled down and in such process there was overflowing of froth out of the barrel and varnish and turpentine which had been stored at a distance got fired due to heat, as a result of which seven workers were burnt to death. It was held there in that though the owner of the factory allowed the same to be used for manufacturing wet paints which was not authorized by the license/the same was not the direct cause of fire and the fire broke out only because of the negligence on the part of the person who was looking after the operation of the process. As the negligence on the part of the said person by name Hatim intervened which was the proximate cause of the which resulted in the death of seven inmates of the factory, it was held by the Hon’ble Supreme Court that the owner of the factory was not responsible for the fire which broke out even though it might be a negligent act on his part to allow the burner used in the same room in which Varnish and turpentine were stored and in allowing manufacture of wet paints as against the license for preparing dry paint using cold process. In arriving at such conclusion, the Hon’ble Supreme Court relied on the Judgment of Emperor v. Omkar Rampratap (1902) 4 Bom LR 679 wherein it was observed as follows: “To impose criminal liability under Section 304-A Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that act must be the proximate and efficient cause without the intervention of another’s negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non”. The above said quotation from Sir Lawrence Jenkins happened to be the celebrated one followed in many other cases. 13. The second case is not relevant insofar as it deals with the question whether a person driving a motor vehicle with a learner’s license can be held or presumed to have acted with negligence when there is no evidence to show how the accident occurred. In that case, it was held that in the absence of evidence to show how the accident took place, the driver of the vehicle cannot be held to have caused the death by rash and negligent act simply because he did possess only a learner’s license. In Ambalal D. Bhatt v. State of Gujarat, (supra), the Hon’ble Supreme Court made the following observations: “8. It appears to us that in a prosecution for an offence under Section 304-A, the mere-fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. If that were so, the acquittal of the appellant for contravention of the provisions of the Act and the rules would itself have been an answer and we would have then examined to what extent additional evidence of his acquittal would have to be allowed, but since that is not the criteria, we have to determine whether the appellant’s act in giving only one batch number to all the four lots manufactured on 12.11.1962, in preparing batch No.211105, was the cause of deaths and whether those deaths were a direct consequences of the appellant’s act, that is, whether the appellants’ act is the direct result of a rash and negligent act and that act was the proximate and efficient cause without the intervention of another’s negligence. As observed by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap (supra), the act causing the deaths “must be the causa causans; It is not enough that it may have been the cause sine qua non”. 14. In Suleman Rehiman Mulani and Another v. State of Maharashtra (supra), the accused who was driving a car only with a learner’s license without a trainer by his side, had injured a person. It was held that the said fact by itself was not sufficient to warrant a conviction under Section 304-A. It would be different if it can be established as in the case of Bhalchandra alias Bapu and Another v. State of Maharashtra AIR 1968 SC 1319 : (1969) 1 MLJ (Crl) 36, that deaths and injuries caused by the contravention of a prohibition in respect of the substances which are highly dangerous as in the case of explosives in a cracker factory which are considered to be of a highly hazardous and dangerous nature having sensitive composition, where even friction or percussion could cause an explosion and that contravention would be the causa causans. In Public Prosecutor v. Moopanor@Pichaiah Pillai (supra), when a portion of a school building collapsed while classes being held in the school, resulting in death of 35 girl students and a middle aged women and grievous injuries to several students. It was held as follows: “The main question whether the collapse of the building was due to the rash and negligent act of the respondent. It was held as follows: “The main question whether the collapse of the building was due to the rash and negligent act of the respondent. The learned public prosecutor reiterated the same points urged on behalf of the prosecution before the appellate Court, but stressed before me that the act of the respondent in not having attended to immediate repairs by taking technical advice after having come to know that it required such repairs should be held to be a rash and negligent act on his part”. The further observation made therein is as follows: “It is not disputed that he sought the assistance of the masons to construct the building. If the masons had not done the work properly and if they had been negligent in not mixing the lime mortar in proper proportions, the respondent could not be made liable for the negligence of those persons who actually constructed the building, who are supposed to be skilled. The respondent is a lay man. He, therefore cannot be held liable for the negligence of the persons who actually constructed the building which negligence is the causa causans for the collapse of the building”. 15. In the said case, it was held that when the work having been entrusted to the mason, who acted with negligence in not mixing lime mortar in proper proportions which happened to be the cause of the collapse of the building, the manager and correspondent of the school could not be held liable for the offence of causing death by a rash and negligent act. 16. In A. Venkataraman v. State (supra), a contractor of quarry was held not liable to be prosecuted for the offence punishable under Section 304-A, when a worker was wedged in between two boulders and crushed to death while engaged in digging black granite stones. The reasons for holding so were that none of the witnesses implicated the contractor and it was admitted by the prosecution that the contractor was not present at the scene of occurrence and that it was also not the case of the prosecution in that case that the contractor had directed any particular work to be done on the fateful morning in a particular manner which could even prima facie indicate lack of due care and caution before permitting the labourers to undertake such arduous task. 17. 17. In Kanadikara Rajendran v. State (supra), when a lorry belonging to the contractor was sent to the work spot to transport the workers, the same was allowed by its driver to be driven by the cleaner of the said lorry and the cleaner drove it so rashly and negligently due to which the lorry fell into a road side well as a result of which, nine persons died and several others sustained injuries. In that case, it was held that though the contractor had used the lorry for a purpose for which it was not intended (namely a goods vehicle used for transporting passengers), the same was not the direct cause of the accident resulting in deaths and injuries and the prosecution launched against the contractor was liable to be quashed. 18. If the case on hand is considered in the light of the above said decisions, this Court has to necessarily come to the conclusion that the petitioner cannot be prosecuted for the offences punishable under Sections 304-A and 337 I.P.C for the death of one of the workers and injuries caused to six of the workers engaged by the contractor (A1) and labour sub-contractor (A2) since the excavation work was not done in the presence of any one of the petitioners or under the supervision of or in accordance with the specific directions issued by the petitioners regarding the dimensions and the manner in which excavation work is to be done. The petitioners have made clear averments that the entire construction work was entrusted to the contractor (A1) and the excavation work for construction of retaining wall was undertaken by the contractor himself engaging the labour sub-contractor. It is an admitted fact that the petitioners are residing in Chennai which is more than 500 k.m away from Udagamandalam. Therefore, it is quite obvious that they could not have directly supervised the work. Further more, the learned counsel for the petitioners has also pointed out the fact that there is no legally admissible evidence collected by the Investigating officer to show that the work was done under their supervision and that there was rashness and negligence on the part of any one of the petitioners which resulted in the accident without there being intervention of negligence of any other person. In this case it is the case of the prosecution that the contractor (A1) and labour sub-contractor (A2), who were directly supervising the work acted in a rash and negligent manner which resulted in the accident. Therefore, even as per the prosecution case, there was intervention of the negligence on the part of A1 and A2. Under such circumstances, applying the ratio decided in the cases cited supra, this Court comes to the conclusion that the petitioners have made out a clear case for quashing of the charge sheet filed in Cr. No.109 of 2006 a case registered on the file of G-1, Town West Police Station, Udagamandalam which was taken on file by the learned Judicial Magistrate, Udagamandalam on the file of his Court in C.C.No.100 of 2002 so far as the petitioners are concerned. 19. In the result, this petition is allowed and the charge sheet filed in Cr. No.109 of 2006 for offences under Section 304-A and 337 I.P.C which has been taken on the file of the learned Judicial Magistrate, Udagamandalam as C.C. No.100 of 2008 is quashed so far as the petitioners shows as Accused 3 to 5 in the said case are concerned.