Karnataka High Court
Deepak Raheja vs The Station House Officer on 29 October, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION No.33246 OF 2016
AND WRIT PETITION Nos.34069-34070 OF 2016(GM-RES)
BETWEEN:
1. Deepak Raheja
Son of Late Bhagwan Das Raheja,
Aged about 61 years,
Raheja Chambers,
Linking Road Main Avenue,
Santacruz West,
Mumbai,
Now at Bengaluru.
2. Aditya Raheja
S/o. Deepak Raheja,
Aged about 34 years,
No.24/1, Lavel 1,
Vittal Mallya Road,
Bengaluru-560 001.
3. M/s. Pebble Bay Developers Pvt. Ltd.,
A Company incorporated under the
Companies Act, 1956 and
Having its Registered office at
Raheja Chambers, Linking Road,
And Main Avenue, Santacruz West,
Mumbai - 400 054.
WP No.33246/2016
& WP Nos.34069-34070/2016
2
And Branch office at
Onxy Centre, 4th Floor,
#5, Museum Road,
Bengaluru-560 001
Represented herein by
Its Director, Mr. Aditya Raheja. ...Petitioners
(By Sri. Ajesh Kumar S, Advocate)
AND:
1. The Station House Officer,
Sanjayanagar Police Station,
Sanjayanagar,
Bengaluru-560 094.
2. A.S. Ponnanna
S/o. A.K. Subbaiah,
Aged about 42 years,
Residing at Flat No.32,
Tower-3, Pebble Bay,
A-11, RMV 2nd Stage,
1st Main Road, Dollars Colony,
Bengaluru-560 094. ...Respondents
(By Sri. Nasarulla Khan, HCGP for R-1;
R-2 Served)
These Writ Petitions are filed under Article 226 of the
Constitution of India read with Section 482 of Cr.P.C praying
to quash the order dated:21.04.2016 passed in
Crl.R.P.670/2015 at Annexure-A issued by Court of LVI Addl.
City Civil & Sessions Judge, Bengaluru City and etc.,
WP No.33246/2016
& WP Nos.34069-34070/2016
3
These Writ Petitions having been heard and reserved
for orders on 12.10.2018, this day the Court made the
following:
ORDER
The petitioners are the accused in CC No.34838/2014 pending in the Court of VIII Additional Chief Metropolitan Magistrate, Bengaluru Bengaluru (henceforth for brevity referred to as "the trial Court") for the offence punishable under Section 336 r/w Section 34 of the Indian Penal Code. The petitioners have sought for quashing the order dated 21.04.2016 passed in Crl.R.P.No.670/2015, by the Court of the learned LVI Additional City Civil and Sessions Judge, Bengaluru (CCH-57), before the learned Sessions Judge and also for quashing of the entire charge sheet in CC No.34838/2014.
2. Summary of the case of the prosecution as could be gathered at this stage is that, the present WP No.33246/2016 & WP Nos.34069-34070/2016 4 second respondent lodged a complaint with the first respondent police on 29.07.2013 in their Station Crime No.217/2013 against the present petitioners alleging that the complainant and several other similarly placed persons are residents of an apartment complex called "Pebble Bay" constructed and developed by petitioner No.3 herein of which the petitioner Nos.1 and 2 are the Directors. They have not constructed the project in full and there is a delay of more than two years. That apart, the quality of the construction is also very poor and repeated complaints to the builders has also fallen on the deaf ears. That being the case, on 29.07.2013 at about 8.30 am., an aluminum French window measuring about 80 sq.ft came crashing down from the 22nd floor Pent House of Tower 6. The window has not been fixed properly and fixtures were defective. The window fell on the podium area and the shattered glass has fallen on all WP No.33246/2016 & WP Nos.34069-34070/2016 5 the house balconies of Tower 6. The incident could have caused death or severe injury to persons on the garden as it is an area frequented by children, walkers and other residents to access their apartment. The area where the window fell was usually populated and fortunately nobody was hurt. The complainant called the outcome as the negligence by the builders who are the accused shown in the complaint (petitioners herein) and thus, the conduct of the accused amounts to an act of endangering criminal trust or breach.
3. The trial Court by its order dated 23.12.2014 took cognizance of the matter and issued process to the accused. The petitioners being the accused in the said cases questioned the same by filing a Revision Petition under Section 397 of Criminal Procedure Code before the Sessions Judge in Criminal Revision Petition No.670/2015. The learned Sessions Judge by his order WP No.33246/2016 & WP Nos.34069-34070/2016 6 dated 21.04.2016 dismissed the revision petition. Being aggrieved by the same, the petitioners have preferred these writ petitions.
4. Learned counsel for the petitioners while reiterating the contention of the petitioners taken up in their memorandum of writ petitions contended that the petitioners have not done the alleged act deliberately, as such, there is no negligence on their part. Further the work of fixation of the window panels were given to a contractor under Sub-Contract, as such, it may be the said Sub-Contractor is negligent in his act, but not the present petitioners.
5. Finally, stating that the ingredients of the offences punishable under the Indian Penal Code has not been made out, learned counsel for the petitioners prayed for allowing the petitions.
WP No.33246/2016
& WP Nos.34069-34070/2016 7
6. Learned High Court Government Pleader in his argument submitted that the alleged incident is not in dispute and mere taking of cognizance would not affect the rights or interest of the petitioners, there is prima facie case made out against the petitioners.
7. The second respondent despite service of notice, has not appeared in the matter.
8. It is not in dispute that the apartment complex called "Pebble Bay" was constructed and developed by petitioner No.3 - Company, of which, the petitioner Nos.1 and 2 are the Directors. It is also not in dispute that the respondent No.2 and other named persons as complainants in the complaint at Annexure-B are the residents / occupants of the said apartment. It is also not in dispute that on 29.07.2013, at around 8.30 am., an aluminum french window fell from the 22nd floor WP No.33246/2016 & WP Nos.34069-34070/2016 8 of the pent house of Tower 6 of the said apartment and it fell on the podium area. When admittedly, petitioner No.3 is the builder-Company, of which, the petitioner Nos.1 and 2 are the Directors, their contention that they had given Sub-Contract of the work to a contractor, as such, the petitioners are not liable in any manner, is not acceptable. At this stage, it can be noticed that there is no material to arrive at any conclusion that the alleged sub-contract in favour of the third party / contractor was in any manner exonerated the present petitioners ie., the builders from their liability towards their purchasers / residents in the apartment. The contract between the builder and alleged sub-contractor how far is binding on the occupants of the building is not within the scope of the present writ petitions. If at all the petitioners have got any such contentions to be raised, they may take up such contentions before the appropriate forum / WP No.33246/2016 & WP Nos.34069-34070/2016 9 authority or may be in the trial Court at an appropriate stage. At this stage, suffice it to say that the alleged incident since has not been denied shows that there was fall of aluminum window of a larger dimension from the 22nd floor of the apartment building. Thus, prima facie it shows an act of alleged negligence.
9. Learned counsel for the petitioners in his argument relied upon the judgment of the Hon'ble Apex Court in Sunil Bharti Mittal Vs. Central Bureau of Investigation (Manu/SC/0016/2015) and drew the attention of this Court to Paragraph No.37 of the said judgment which reads as below:
"37. No doubt, a corporate entity is an artificial person which acts through its officers, directors, managing director, chairman etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that WP No.33246/2016 & WP Nos.34069-34070/2016 10 individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so."
10. In the instant case, the alleged offence is under Section 336 of the Indian Penal Code. Whether to constitute an act of negligence under the said Section, the mens rea as canvassed by the learned counsel for the petitioners is a requirement can be ascertained only in a full fledged trial. However, at this stage, suffice it to say that the intention is clearly a mental state and a type of legal fault. Another type of legal fault in mental state is a negligence. The incident, if happened because of the neglect of some precaution that a reasonable man would have used though apparently may look like an WP No.33246/2016 & WP Nos.34069-34070/2016 11 accident, but, its occurrence would be due to some omission or negligence on the part of the Committer. Thus, the present incident which is not in dispute amounts to a negligent act attracted under Section 336 of IPC is a matter of trial.
At this stage, suffice it to say that the materials collected makes out a prima facie case to subject the accused for trial, as such, I do not find any merit in the petitions. Accordingly, the petitions stand dismissed.
Sd/-
JUDGE GH