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Karnataka High Court · body

2020 DIGILAW 2126 (KAR)

K. C. Nandish, B Arch v. State Of Karnataka

2020-10-23

ASHOK G.NIJAGANNAVAR

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JUDGMENT Ashok G. Nijagannavar, J. - Criminal Petition No.293/2014 is filed by accused No.3 and Criminal Petition No.688/2014 is filed by accused No.4 for quashing/setting aside the FIR in Crime No.10/2014 of Kadugondanahalli Police Station, on the file of XI Additional Chief Metropolitan Magistrate, Bengaluru, for the offences punishable under Sections 338 and 304 (ii) r/w Section 34 of IPC. 2. These two petitions emerges out of the complaint filed by one Asimray @ Ashim Roy (respondent No.2). The complaint allegations are, that on 07.01.2014 between 10.00 A.M. to 4.00 P.M., the complainant and other labourers were engaged in construction work. Consequent to the soil getting loose, some portion was collapsed resulting in the death of one of the labourer by name Bharath and injury to another labourer Birbal. In connection with the said accidental death, the police have registered the case for the offence punishable under Sections 338 and 304 (ii) r/w Section 34 of IPC against these two petitioners and few others. These two petitioners are arrayed as accused Nos.3 and 4. They were arrested and remanded to judicial custody; thereafter, they were released on bail. 3. Heard learned Senior Counsels for the petitioners, learned High Court Government Pleader and perused the records. 4. Learned Senior Counsel representing the petitioners accused Nos.3 and 4 would contend that on the date of the alleged incident, both these petitioners were not present at the spot. In order to evidence the liability of these petitioners for the offences punishable under Sections 338 and 304 (ii) r/w Section 34 of IPC, 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 in the absence of such nexus, the prosecution is bound to fail ultimately. 5. In the instant case, what is attributed to these petitioners are that they are responsible for the said accident at the spot, namely the collapse of soil which resulted in the death of a person. But, these petitioners have not played active role by being present there. The omission which is attributed in the complaint and which are attributed to the petitioners / accused in the eyes of law does not constitute offence under Sections 338 and 304 (ii) IPC. But, these petitioners have not played active role by being present there. The omission which is attributed in the complaint and which are attributed to the petitioners / accused in the eyes of law does not constitute offence under Sections 338 and 304 (ii) IPC. Consequently, the registration of the crime, submission of First Information Report against these petitioners and the investigation in pursuance of the said FIR is bad in law. The FIR deserves to be quashed. 6. The allegations made in the complaint do not remotely indicate any rash and negligent act on the part of these petitioners. In the absence of a dishonest intention, the act attributed to the person or persons as defined under Section 299 IPC would constitute which is made thinner under Section 304 (ii) IPC. The registration of the First Information Report is improper and opposed to law, as such, the same is liable to be quashed as against these petitioners. In support of the said contention, the learned counsel for the petitioners has relied on the following decisions: i. In the case of Ambalal D. Bhatt vs. State of Gujarat, (1972) AIR SC 1150 ; ii. In the case of Gousemohiddin vs State of Karnataka, (2003) ILR(Kar) 4841 ; iii. In the case of M.Srikanth vs. State of Telangana and another, (2019) AIR SC 5363 ; iv. In the case of Nitinchandra Somnath Raval vs. State of Gujarat and others, (2019) 14 SCC 676 . 7. Per contra, the learned High Court Government Pleader representing the State submitted that even though the petitioners being the Architect and Owner of the site had entrusted the job of excavation work to the contractor, they should have taken precautionary measures to prevent any possible landslide or collapse of mud / soil. These petitioners should have warned the contractor to supply proper safety equipments. The petitioners being the Architect and land Owner should have given proper instructions. Having failed in their duty, they are vicariously liable for the negligence on the part of the contractor and liable for the offence punishable under Sections 338 and 304 (ii) r/w Section 34 of IPC. 8. The petitioners being the Architect and land Owner should have given proper instructions. Having failed in their duty, they are vicariously liable for the negligence on the part of the contractor and liable for the offence punishable under Sections 338 and 304 (ii) r/w Section 34 of IPC. 8. Having regard to the submission of the learned Senior counsels, the question that arises for consideration is whether there was any negligence on the part of these petitioners by any act of commission or omission constituting the proximate cause leading to the accident, which resulted in the death of one worker and injury of other worker. 9. It is an admitted fact that the petitioners namely accused No.3 Architect and accused No.4 Owner of the Site were not present at the work place when the accident took place. It is also not forthcoming that the labourers were under the direct control or supervision of these petitioners. It is not the definite case of the prosecution that the petitioners were duty bound to take precautionary measures or to provide the equipments to safeguard the life of the labourers in the event of landslide or collapse of soil. It is the specific defence of these petitioners that the construction was entrusted to the building contractor who was responsible for securing the labourers to do the excavation and construction work. There are no allegations that these petitioners were making the construction illegally in violation of the building plan from the competent authority. The contractor had taken up the excavation work for constructing the building by engaging the labourers. If at all there was any negligence which led to the unfortunate accident, the same could be attributed to the contractor, but not these petitioners. Even these petitioners cannot be held vicariously liable under the criminal law. 10. It is the contention of the learned Senior Counsels for the petitioners that the offence punishable under Sections 338 and 304 (ii) IPC cannot be equated with the offences described in the Labour Legislations which prescribe the penal consequences on the part of the employer to provide the safety equipments to the workers. 10. It is the contention of the learned Senior Counsels for the petitioners that the offence punishable under Sections 338 and 304 (ii) IPC cannot be equated with the offences described in the Labour Legislations which prescribe the penal consequences on the part of the employer to provide the safety equipments to the workers. It is the further contention that the act or omission that constitute the negligence on the part of the petitioners should have direct nexus to the result, namely the death or injury, without there being any intervention or negligence of other persons to hold the petitioners liable to be prosecuted. 11. Section 304 (ii) IPC reads as under: 304. Punishment for culpable homicide not amounting to murder: Whoever commits culpable homicide not amounting to murder shall be punished with (imprisonment for life), or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. Classification of offence Para I: Punishment Imprisonment for life, or imprisonment for 10 years and fine Cognizable Non bailable- Triable by Court of Session Non-compoundable. Para-II Punishment Imprisonment for 10 years, or fine, or both Cognizable Nonbailable Triable by Court of Session Noncompoundable. Section 338 IPC reads as under: 338. Causing grievous hurt by act endangering life or personal safety of others: Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both. 12. The main question is whether the collapse of the structure or the soil was due to the rash and negligence act of the petitioners. 12. The main question is whether the collapse of the structure or the soil was due to the rash and negligence act of the petitioners. Admittedly, the construction work was entrusted to the contractor who inturn has engaged the masons and other labourers to do the said work. These petitioners cannot be held liable or prosecuted for the accidental death and injury caused to the labourers, since the excavation work was not done in their presence. It is quite obvious that without there being any specific allegations about the direct involvement of these petitioners, they are not liable for the offences alleged against them. 13. For the foregoing reasons, this Court is of the view that there are valid grounds for quashing the FIR in so far as these petitioners namely accused Nos.3 and 4 are concerned. Accordingly, this Court proceed to pass the following: ORDER i. The Criminal Petitions are allowed. ii. FIR in Crime No.10/2014 of Kadugondanahalli Police Station, on the file of XI Additional Chief Metropolitan Magistrate, Bengaluru, is quashed.