Karnataka High Court
Sri. Hanumanthrayappa vs State By Sub Inspector Of Police on 28 July, 2015
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY, 2015
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
CRIMINAL PETITION NO.2188/2012
BETWEEN:
1. SRI HANUMANTHRAYAPPA
S/O HANUMANTHAIAH
AGED ABOUT 55 YEARS
HEAD WARDER
INCHARGE CHIEF WARDER
CENTRAL RELIEF COMMITTEE
MAGADI MAIN ROAD,
BANGALORE.
2. SRI LAKSHMI NARASIMHAIAH
S/O LATE CHINNASWAMAIAH
AGED ABOUT 55 YEARS
SUPERINTENDENT
CENTRAL RELIEF COMMITTEE
MAGADI MAIN ROAD,
BANGALORE.
3. SMT. D. BHAGYALAKSHMI
D/O. DAMAIAH
AGED ABOUT 60 YEARS
RECEIVING OFFICER
CETNRAL RELIEF COMMITTEE
MAGADI MAIN RAOD,
BANGALORE.
4. SRI S. KRISHNE GOWDA
S/O LATE S.NINGEGOWDA
AGED ABOUT 58 YEARS
2
SECRETARY
CENTRAL RELIEF COMMITTEE
MAGADI MAIN RAOD,
BANGALORE.
PROCEEDINGS ABATED AGAINST P4 & DELETED
AS PER COURT ORDER DATED 06.07.2015.
... PETITIONERS
(BY SRI M.S. BHAGWAT, ADV.)
AND:
1. STATE BY SUB INSPECTOR OF POLICE
KAMAKSHIPALYA POLICE STATION,
BANGALORE - 560 079.
2. SUPERINTENDENT
CENTRAL RELIEF COMMITTEE
MAGADI ROAD,
BANGALORE.
... RESPONDENTS
(BY SRI CHETAN DESAI, HCGP FOR R1;
R2 SERVED BUT UNREPRESENTED)
THIS CRL.P. IS FILED UNDER S.482 CR.P.C., PRAYING TO
QUASH THE COMPLAINT DATED 1.1.2011 MADE BY THE 2ND
RESPONDENT AND THE FIRST INFORMATION REPORT BEARING
CRIME NO.7/2011 ON THE FILE OF V ADDL. CMM., BANGALORE
CITY (ANNEXURES-A AND B).
THIS CRL.P. COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
3
ORDER
The Beggars Relief and Rehabilitation Centre, called 'Nirashrithara Parihara Kendra', generally known as "Beggars Colony" situated at Magadi Road, Benglauru ('NPK' for short) was in news in the 3rd week of August 2010. The print and electronic media having reported large number of deaths in the NPK, on 22.08.2010, the then Chief Minister of Karnataka, visited the NPK and being unhappy with its administration ordered an inquiry. Shri S.Selvakumar, IAS, Project Administrator, Karnataka Health System Development and Reforms Project and Mission Director, National Rural Health Mission, Bengaluru was appointed as the Inquiry Officer.
2. The Inquiry Officer having conducted the inquiry and submitted the report in two volumes, the Government, by an order dated 01.11.2011 having directed the institution of FIR against the then Officers and employees of the NPK and a complaint having been lodged by respondent No.2 on 01.11.2011 vide Annexure-A and 4 the Kamakshipalya Police having registered a case in Crime No.7/2011 on 04.11.2011 for the offence under S.304-A IPC and submitted FIR to the V ACMM, Benglauru vide Annexure-B, this petition was filed for quashing of the said proceedings. The 4th petitioner having died on 11.11.2013, the proceedings as against him has abated.
3. At the relevant point of time, the petitioners were working as Head Warder, In-Charge Chief Warder, Superintendent and Receiving Officer, respectively, in the NPK. According to the said Report, 264 deaths have occurred in the NPK, from January to August, 2010.
4. Para 12.2 of the Inquiry Report is with regard to the lack of supervision and co-ordination in the NPK. Para 12.3 is with regard to the poor maintenance of records of inmates by Chief Warder/Head Warder and improper account of the inmates. Para 12.4 of the Report is with regard to the tampering of the attendance register/records by Warder with the connivance of the Administration. Para 13 is with regard to the procedural 5 lapses. Para 14 is with regard to the medical negligence. Para 14.7 is with regard to sorry state of affairs at the dormitories, cleanliness and medical care taking a backseat. Para 14.9 is with regard to the lapses regarding issue of death certificates. The conclusions have been summarized at para 16.1 to 16.8. The same being relevant, are extracted herein below:
"16.1. Masacharane done in haste - adding fuel to fire:-
Special drive to arrest beggars resulted in a heavy inflow of beggars, which the NPK was not in a position to handle. In the centre which can comfortably accommodate about 750 inmates, more than 2500 were kept. Cleanliness, health, hygiene, proper medical care were all compromised.
16.2. The Huge inflow of inmates subsequent to masacharane created a facility gap - what was available did not match with what was required. Dormitory accommodation, toilets, warders/helpers, medical staff, kitchen, dining hall, Medical facility etc were all insufficient.
16.3. Concentration of the administrative / financial power with CRC - Decentralization was required for better management of the LR centers. Though the Act provides for establishment of local committees for administration of the NPKs, no LRC was established for Bangalore - as a result of which there were no directions checks and balances in the administration.
16.4. There were procedural flaws in arrest and remand of beggars. Many beggars were remanded without producing before the magistrate. Beggars were arrested by people who did not have the 6 authority to arrest. Even the arrested beggars were not properly enquired by the receiving officer. The relatives of the arrested people were not contacted in majority of the cases. Immediately after the arrest, the beggars should be produced before the medical officer for health check-up, which was not done. Human right issues concerning the arrested persons were summarily ignored.
16.5. Medical care devoid of professionalism - Mandatory requirements like medical screening, medical checkups, history ticket maintenance, medical records etc were not maintained. There was no disease tracking of beggars. Beggars were not classified based on their disease, in effect there was mixing of infectious with healthy beggars:
Possibility of spread of communicable diseases could not be ruled out. When there were lot many deaths in a short span of time or when people die with similar signs or symptoms the cases should have been suspected of food poisoning either bacterial, toxic or any other substances leading to death. No effort was made to subject food/ water samples to laboratory tests.
16.6. Medical experts opinion and laboratory report of samples confirm that the food articles supplied was adulterated; Prepared food and water was unfit for consumption; malnutrition, severe anaemia coupled with above factors have contributed for series of disease and deaths in a short span of few days.
16.7. Negligence and apathy of administration towards inmates:
The system failed to keep track of each individual beggar, whether he/she is in the dormitory, whether he/she is referred to a hospital, whether he/she is released, or whether he /she is dead - no exact information is available in the NPK. Attendance of inmates is not properly maintained. No photograph / thumb impression is captured. There is no grievance redressal mechanism for the inmates. Supplier was permitted to supply items directly to kitchen compromising the quality 7 and quantity. Death register also was not maintained properly. Instances of dead bodies lying in the dormitory for 2-3 days, without the knowledge of the Superintendent have been reported.
16.8. In a nut shell the NPK has functioned in a mechanical way, without any programme/ methodology for proper care of inmates. The life of beggar is not valued. On the whole there is a lack of humane touch and concern in their care."
5. Sri M.S.Bhagwat, learned advocate, contended that the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety, do not constitute any offence or make out a case under S.304-A of IPC against the petitioners. He submitted that the complaint and FIR do not disclose any cognizable offence justifying investigation by the Police. According to the learned advocate, the petitioners have acted in good faith and due diligence and hence, question of investigation by the Police, against them, having not arisen and Death Certificates issued by the Medical Officer having indicated that the deaths occurred due to old age and general weakness and being the case of natural death, the impugned proceeding is liable to be quashed. Learned Counsel submitted that the petitioners being in no way 8 responsible for the death of beggars, as they died due to old age, general weakness and there being no rash or negligent act on the part of the petitioners, the impugned FIR being illegal, is liable to be quashed. Learned Counsel submitted that the basic ingredients of Section 304-A IPC being not attracted, registration of FIR and the investigation undertaken being abuse of process of law, interference in exercise of power under S.482 Cr.P.C., is called for.
6. Sri Chetan Desai, learned HCGP, on the other hand, submitted that there being no dispute with regard to the petitioners being in administration of the NPK at the relevant point of time and 264 inmates having died in the NPK between January and August, 2010 and the NPK being in news, both in print and electronic media, which reported large numbers of deaths and after the visit of the then Chief Minister of Karnataka, a notification was issued on 22.08.2010 and an inquiry about the functioning of the Centre was ordered by appointing Sri S.Selvakumar, IAS, 9 as the Inquiry Officer. He submitted that the findings of the Inquiry Officer having shown gross negligence and apathy of administration towards its inmates and there being complete lack of humane touch and concern towards the beggars, who were housed in the NPK and their lives having not been valued, information was furnished to respondent No.1, to register a case and to conduct investigation. He submitted that there being rash and also negligent acts during the relevant period, when the petitioners were in administration of the Centre, there being no dispute with regard to the spate of deaths i.e., 264 inmates in a span of eight months, there is no scope for interference in exercise of power under S.482 Cr.P.C.
7. Perused the copy of the Inquiry Report of Sri S.Selvakumar, with regard to the malfunctioning of the NPK and considered the rival contentions.
8. Between January to August, 2010, 264 inmates of the NPK have died. The factual backdrop in which the victims have lost their lives has been pointed out 10 by Sri S.Selvakumar, the Inquiry Officer, in his report submitted to the Government. Because of the findings in the said Inquiry Report, the Government having directed lodging of FIR, the second respondent has filed the information vide Annexure-A, in the Kamakshipalya Police Station. Since the said report discloses commission of cognizable offence, a case in Crime No.7/2011 for the offence under S.304-A IPC has been registered.
9. There is no dispute with regard to the loss of 264 human lives, between January and August, 2010, at the NPK and the petitioners being in administration of the Centre during the said period.
10. The terms "rash" or "negligent" appearing in S.304-A IPC having not been defined in the Cr.P.C., in SUSHIL ANSAL Vs. STATE THROUGH CENTRAL BUREAU OF INVESTIGATION, (2014) 6 SCC 173, Apex Court has held as follows:
"57. The terms "rash" or "negligent" appearing in Section 304-A extracted above have not been defined in the Code. Judicial 11 pronouncements have all the same given a meaning which has been long accepted as the true purport of the two expressions appearing in the provisions. One of the earliest of these pronouncements was in Empress of India v. Idu Beg ILR (1881) 3 All 776, where Straight J. explained that in the case of a rash act, the criminality lies in running the risk of doing an act with recklessness or indifference as to consequences. A similar meaning was given to the term "rash" by the High Court of Madras in Nidamarti Nagabhushanam, in re (1871-74)7 Mad HCR 119, where the Court held that culpable rashness meant acting with the consciousness that a mischievous and illegal consequence may follow, but hoping that it will not. Culpability in the case of rashness arises out of the person concerned acting despite the consciousness. These meanings given to the expression "rash", have broadly met the approval of this Court also as is evident from a conspectus of decisions delivered from time to time, to which we shall presently advert. But before we do so, we may refer to the following passage from A Textbook of Jurisprudence by George Whitecross Paton reliance whereupon was placed by Mr. Jethmalani in support of his submission. Rashness according to Paton means:
"where the actor foresees possible consequences, but foolishly thinks they will not occur as a result of his act".
(emphasis supplied)
58. In the case of "negligence" the Courts have favoured a meaning which implies a gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual 12 which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection.
(iii) What constitutes negligence?
59. The expression "negligence" has also not been defined in the Penal Code, but, that has not deterred the Courts from giving what has been widely acknowledged as a reasonably acceptable meaning to the term.
***** ***** ******
72. To sum up, negligence signifies the breach of a duty to do something which a reasonably prudent man would under the circumstances have done or doing something which when judged from reasonably prudent standards should not have been done. The essence of negligence whether arising from an act of commission or omission lies in neglect of care towards a person to whom the defendant or the accused as the case may be owes a duty of care to prevent damage or injury to the property or the person of the victim. The existence of a duty to care is thus the 13 first and most fundamental of ingredients in any civil or criminal action brought on the basis of negligence, breach of such duty and consequences flowing from the same being the other two. It follows that in any forensic exercise aimed at finding out whether there was any negligence on the part of the defendant/accused, the Courts will have to address the above three aspects to find a correct answer to the charge."
11. In the above said decision, Apex Court has held that an offence under S.304-A IPC may arise under a variety of circumstances and the question of nature of care which ought to have been exercised by the occupant of a property must be decided on the totality of the facts and circumstances of each individual case.
12. In view of the findings and the conclusions in the Report submitted by Sri S.Selvakumar, particularly with regard to the administrative lapses and the petitioners being in the administration of the NPK at the relevant point of time, it cannot be said that the impugned FIR is frivolous and vexatious. The aforesaid Report, produced along with the FIR, does disclose the commission of a 14 cognizable offence, justifying the registration of the crime and investigation by the Police.
In view of the above, no case is made out for exercise of power under S.482 Cr.P.C., i.e., to quash the complaint vide Annexure-A and FIR vide Annexure-B. Hence, petition is rejected. However, the first respondent shall conduct investigation with expedition and submit the Final Report to the learned Magistrate, with utmost expedition.
Sd/-
JUDGE sac*