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2019 DIGILAW 1179 (KAR)

Sunil v. State Of Karnataka

2019-06-10

ASHOK G.NIJAGANNAVAR

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JUDGMENT : Ashok G. Nijagannavar, J. These two petitions are filed with a prayer to quash the proceeding initiated against the petitioners/accused Nos.1 and 2 in C.C.No.332/2011 pending before III Additional Senior Civil Judge and JMFC, Vijayapur arising out of Crime No.14/2011 of Adarsh Nagar Police Station, Vijayapur. 2. The facts leading to these two petitions are that on 05.03.2011 one Ashok S/o Siddappa Devapur, resident of Kakandaki village, Taluk and District Vijayapur had filed a complaint before Adarsh Nagar Police, Vijayapur alleging that his son aged about 26 years was working in RNS Motors Showroom at Vijayapur for the past two years and he was doing painting work. His employer was also entrusting other works. The petitioner in Criminal Petition No.16051/2013 was the Manager of the said showroom. The complainant had requested the Manager Mounesh to entrust the painting work alone to his son Vijay and not to engage him for other works. On 03.03.2011, the complainant's son Vijay had left the house in the morning at about 8.30 a.m. to attend the work in the showroom. Later, at about 11.00 a.m., the friend of his son by name Iqbal who was also working in the said showroom made a phone call and informed that his son Vijay while doing work on the roof, fell down, as a result of which he has sustained head injury and has become unconscious. The injured Vijay was taken to BLDE Hospital, Vijayapur. The complainant and his wife came to the hospital and noticed that their son Vijay had sustained head injuries and there was bleeding in the ears and he was not in a condition to speak. The colleagues of his son namely Iqbal and Kumar Singh had informed that the Manager of the showroom had forcibly engaged their son Vijay to bring some articles kept on the roof. While getting down from the roof along with the articles, he fell down, as a result of which he sustained injuries. Due to the negligence of the Manager and the owner of the showroom, the said incident has occurred. While getting down from the roof along with the articles, he fell down, as a result of which he sustained injuries. Due to the negligence of the Manager and the owner of the showroom, the said incident has occurred. On account of the injuries sustained while discharging his duty in the showroom, the complainant's son expired on 05.03.2011, in the morning hours at 7.30 a.m. After recording the evidence of the complainant, the police have registered the case in Crime No.14/2011 and have filed the charge sheet after completion of the investigation, which is registered as C.C.No.332/2011. 3. Heard learned counsel for the petitioners and learned High Court Government Pleader for respondent No.1 and perused the records. The learned counsel for respondent No.2 has remained absent. As such, this Court had no opportunity to hear the submissions of the complainant. 4. The main grounds urged by learned counsel for the petitioners are that initiation of proceedings against the petitioners/accused Nos.1 and 2 is abuse of process of the Court. Absolutely, no evidence is made out against the petitioners herein. The complaint averments do not make out a case whether the petitioners were present at the time of the alleged incident. The deceased Vijay was negligent in climbing on the plastic sheets because, on account of gross negligence, the deceased Vijay fell down and sustained grievous injuries. The petitioners are nowhere connected with the said case. The complaint is filed with vindictive motive. The petitioners were not present at the place of the incident. The petitioner in Criminal Petition No.7166/2011 is one of the Director of the said showroom and he cannot be held liable when he was not involved in the alleged acts. The petitioner in Criminal Petition No.16051/2013 being the Manager was not responsible for the alleged incident. 5. In view of the submission made by learned counsel for the petitioners and learned High Court Government Pleader, the point that arises for consideration is: "Whether there are any grounds to invoke the extraordinary power vested to this Court under Section 482 Cr.P.C. and quash the proceedings against these petitioners?" 6. 5. In view of the submission made by learned counsel for the petitioners and learned High Court Government Pleader, the point that arises for consideration is: "Whether there are any grounds to invoke the extraordinary power vested to this Court under Section 482 Cr.P.C. and quash the proceedings against these petitioners?" 6. Normally this Court which is vested with the power under Section 482 Cr.P.C. should not sit over the decision taken by the Court with regard to issuance of process as contemplated under Section 204 Cr.P.C. The power under Section 482 Cr.P.C. is to prevent abuse of the process of law and to secure justice. Normally, the High Court should be circumspect and should exercise the power only in exceptional circumstances depending on the facts and circumstances of each case. If the allegation leading to criminal prosecution prima facie does not disclose or constitute an offence, then the power under Section 482 Cr.P.C. can be exercised. 7. The apex Court in the case of Rajiv Thapar & Others v. Madan Lal Kapoor, (2013) 3 SCC 330 has laid broad guidelines in regard to the steps to be followed in order to determine the veracity of a prayer for quashing proceedings initiated against the accused, before the High Court under Section 482, Cr.P.C. The relevant portion is found in paragraphs 30 to 30.5 at page 348 of the judgment and is extracted below: "30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:- 30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? 30.2. Step two: whether the material relied upon by the accused, would rule out the assertions contained in the charges leveled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. 30.3. Step three: whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? 30.4. 30.3. Step three: whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four: whether proceeding with the trial would result in an abuse of process of the Court, and would not serve the ends of justice? 30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious Court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused." 8. It is an admitted fact that the complainant's son Vijay was working in RNS Motors Showroom, Vijayapur. The first and foremost contention of learned counsel for the petitioners is that in order to attract the offence under Section 304-A IPC, there must be rash and negligent act and also to attract the offence as defined under Section 36 IPC, there must be either an act or omission to fix the liability. When there is no specific act or an omission said to have been committed by the petitioners, the allegations by the complainant that the petitioners had engaged the deceased in such kind of work to risk his life, so as to constitute the offence. In support of the said contention, he has relied upon the decision of this Court in the case of D.S.Ghal vs. State of Karnataka, 2003 4 ILR(Kar) 4849, wherein it is held as under: "It is well settled that the very foundation to constitute an offence there must be an act or omission on the part of the petitioner as defined under Section 36 of the Act but for the purpose of Section 304-A, IPC, there must be rash and negligent act on the part of the petitioner which has led to the death of the deceased. As noted in the averments of the complaint, the death of the deceased was due to the slip when he was peeping down through the hole near a pulley to see whether the stone had been tied to the rope. As noted in the averments of the complaint, the death of the deceased was due to the slip when he was peeping down through the hole near a pulley to see whether the stone had been tied to the rope. The allegation is that the occupier has not provided safety and protective measures which led to the fall and consequently death of the deceased. This act of the deceased cannot be attributed to the petitioners stating that there was a rash and negligent act on the part of the petitioners. Under the facts and circumstances of the case the degree of negligence or omission is the determining factor to call the act as criminal and in addition to that, there must be mens rea in criminal negligence. On the facts noted, it cannot be said that negligence of the accused was so patent to import mens rea. Mere carelessness is not sufficient to prosecute for the offence under Section 304-A, IPC. of course, when he was peeping through the pulley from the third floor towards the ground, and if there was no safety being provided, it is altogether a different act which does not attract Section 304-A, IPC and there may be a civil consequence for not providing proper measure in safeguarding the interest of the employees or else occupier is liable under the provisions of the Factories Act, if there is a violation of any of the conditions regarding safety measures. Patently as noted, none of the ingredients are made out to attract the offence under Section 304-A, IPC. Despite the fact that the complaint has been filed, cognizance taken and the charge sheet filed, there is nothing that survives for consideration to proceed against the petitioners since at the inception itself when the act alleged does not attract the penal clause under Section 304-A and the same has been reinforced in the above cited decision of the Apex Court, that the act causing death "must be the causa causans; i.e., the act of causing death must be causa sine qua non". 9. 9. In the instant case, the entire allegations made in the complaint and the statement of the witnesses recorded by the police and the charge sheet records do not make out a case to fix the liability of the petitioners or to make them liable to the commission of illegal acts, which are responsible for the death of the deceased Vijay. Thus, the possibility of conviction is very much remote. Even the if trial is held, the precious time of the Court would be wasted in the said process. 10. For the foregoing reasons, this is a fit case to invoke the power vested in this Court under Section 482 Cr.P.C. and to quash the criminal proceedings initiated by the police. Accordingly, the petitions are allowed. The criminal proceedings initiated in C.C.No.332/2011 pending on the file III Additional Senior Civil Judge and JMFC, Vijayapur arising out of Crime No.14/2011 of Adarsh Nagar Police Station, Vijayapur are quashed.