Madras High Court
Dr.Jeppiar vs State Of Tamil Nadu on 29 November, 2012
Author: A.Arumughaswamy
Bench: A.Arumughaswamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.11.2012 CORAM: THE HON'BLE MR.JUSTICE A.ARUMUGHASWAMY Criminal Original Petition No.25259 of 2012 and M.P.Nos.1 and 2 of 2012. 1. Dr.Jeppiar 2. Mrs.Remibai Jeppiar .. Petitioners/Accused Versus 1. State of Tamil Nadu rep. by its Inspector of Police, C-2 Sunkuvar Chatram Police Station, Kancheepuram District. .. Respondent/Complainant 2. Bija Madali .. Respondent/Defacto Complainant Petition filed under Section 482 of Cr.P.C., praying to call for the entire records in respect of FIR in Cr.No.679/2012 dated 06.08.2012 on the file of the first respondent and quash the same as against the petitioners. For petitioners .. Mr.R.C.Paul Kanagaraj For Respondents .. Mr.A.N.Thambidurai, Addl.Public Prosecutor for R1. ORDER
The petitioners are the Accused in Crime No. 679/2012 dated 06.08.2012 on the file of the first respondent and they have come forward with this petition to quash the FIR against them.
2. The second respondent is the defacto complainant. The allegations in the complaint runs as follows:- The defacto complainant along with other workers are engaged in construction work and that the construction work was undertaken by one Mr.Rajkumar who is the contractor and first accused and the actual construction is undertaken by Mr.Sudanandan, the mason (Maistry) the 2nd accused. The building was constructed as per the direction of the contractors and the mason who are the named accused and they were raising cement pillars and on 06.08.2012, the contractors and mason directed the defacto complainant to construct Arch and the defacto complainant and others protested that the Pillars themselves were wet and therefore if arch is constructed then it will lead to destruction and therefore requested that the arch can be constructed after 10 days for which the contractor and mason overruled their objections and informed them that they will take care of whatever harm that comes in the way and pursuant to the direction of the contractor and mason, they were scaffolding the pillar and at that juncture the pillar as well as the scaffolding gave way and fell down and in the said accident 9 workers lost their lives and 3 persons were seriously injured as a result of which the defacto complainant gave a complaint to the first respondent, who had registered the FIR in Crime No.679 of 2012 for the offence under Sections 338, 304(2) IPC and one person died subsequently and the first petitioner being the trustee of the Institution, was arrested on 09.08.2012 for the above said incident.
3. The contention of the learned counsel appearing for the petitioners is that the name of the petitioners is not find a place in the FIR and the statements recorded by the police will reveal only about the designation of the petitioners and nothing has been mentioned about the occurrence as well as the participation of the accused at the time of occurrence. Therefore, the petitioners have not committed any of the offence much less the offence under Section 304(ii) IPC. The learned counsel further contended that as on date investigation reveals only against the other accused and not against the present petitioners except one or two references has been made regarding the designation. Except this, they have not mentioned anything about the petitioners. The learned counsel further contended that at the time of enlarging the petitioners on bail it has been already held that the petitioners were not incharge of the construction of the particular institution which is come under the trust in which the first petitioner is the Chairman and the second petitioner is one of the Directors. At the time of granting bail to the petitioners reliance was placed on the judgment reported in 1969 Law Weekly (Crl.) 158 in which this Court had occasioned a defective construction of the building causing death of several members and in that case it has been held that for this purpose, the owner of the building cannot be held liable for the negligence on the person who actually constructed the building and on that basis the said case has ended in acquittal. Further he contended that there is no vicarious liability against the Directors since it is the Trust property. Further, on the medical ground also the petitioners cannot go in to the ordeal of trial. Further, as directed by this Court, a sum of Rs.26,00,000/- has been deposited by the petitioners before the learned District Munsif cum Judicial Magistrate, Sriperumbudur towards ex gratia amount at the rate of Rs.2,50,000/- each in favour of the legal heirs of the deceased persons and Rs.50,000/- each to the injured victims. Under such circumstances, the FIR against the petitioners has to be quashed.
4. The learned Additional Public Prosecutor appearing for the first respondent contended that only after receiving the report investigation has been started. Since the building has been constructed with the consent and knowledge of the Trustees one cannot say without the knowledge of the trustees the building has been constructed. The Engineer and the supervisor gave statement stating that the Chairman has requested them to complete the construction of Arch immediately and that is the reason the workers were doing non-stop work without giving time for the curing. The other aspects can be considered only after filing of the final report. Hence, he prays that the petition has to be dismissed.
5. The next contention of the Additional Public Prosecutor is that the first Accused Maria Wilson has given a confession statement under Section 24 of the Indian Evidence Act in the presence of one Arumugam, Village Administrative Officer, Kunnam and the Revenue Inspector, Sunguvarchatram and the said statement is sufficient to hold that the prima facie case has been made out. While considering the said statement it is seen that he has stated that he has informed his father-in-law Jeppiar about the proposed construction of Indoor Stadium for Basket Ball Game. In another so called confession statement given by the second Accused viz., Arul Jaya Abrose, he has stated that he has been working at Sathyabama Engineering College at Kunnam Village, as Civil Engineer along with the other Civil Engineer Mr.Rajkumar the first Accused Maria Willson, Jeppiar and his wife Remibai are the Trustees of the Jeppiar Remibai Trust. The fist Accused is the Managing Trustee and he has been administrating the College. The said college has proposed to construct an Indoor Stadium for Basket Ball and for the said construction 40 persons have been working for the said construction work. Since the Management has insisted to complete the construction expeditiously on or before 15th September, 2012 which is the first Annual Day of the said College, the workers have been working on day and night basis. The other accused viz., P.Annadurai in his statement has stated that he is the supervisor for the said construction. Therefore, constructing the building continuously will not constitute the offence. Therefore, I am of the view that as on date except the statement of three persons viz., son-in-law, and other two persons who are working as Civil Engineers nothing has been made against the present petitioners. Therefore, on the facts and on the basis of the statement of witnesses, no incriminating circumstances have been made out against the petitioners.
6. Heard the rival submissions and perused the materials available on record.
7. From the perusal of the records it is seen that the petitioners are the trustees of the trust is not in dispute. Further the name of the petitioners is not find a place in the FIR also not in dispute. From the statement of the witnesses FIR has been registered on 6.8.2012 at about 3.30 p.m. while the Orissa workers were doing the building construction and the construction work was going on in the premises of Jeppiar Institute of Technology. At that time, a pillar fallen which resulted in six persons who were standing behind the pillar died on the spot and six other persons sustained injuries and they were immediately taken to the Government Hospital, Kancheepuram and on the enroute to the hospital, one person died. Thereafter, complaint was lodged by one Bijimadili, aged 26 years. In this complaint the name of the petitioners was not mentioned. Jeppiar Remibai Educational Trust is the trust in which Maria Wilson is the Managing Trustee, Dr.Jeppiaar is the second Trustee and Mrs.Remibai Jeppiar is the third Trustee. The Managing Trustee alone has got the powers to appoint any employee of her choice and to withdraw any power or revoke any appointment of any employee or attorney; to buy or take on lease or exchange or gift/any immovable property for the Trust and to put up buildings or structures on the said property or under the control and possession of the Trust. The powers and duties of the Managing Trustee has been explained in Clause 4 of the Trust Deed dated 16.12.2010. He is the person empowered incidental, conductive and convenient of the object of the Trust employees. Choice of the appointment, exchange, gift of the properties powers are given only to the Managing Trustee and he is not having any specific powers to run the Trust. Various types of powers have been given to the Managing Trustee. As per Clause 18 of the Trust Deed, other two trustees who are the petitioners herein are entitled to call a meeting of the Board for the consideration of any specific subject to be mentioned by the trustees convening the meeting of the Board. There will be a notice of at least 14 days for every meeting so convened and in that meeting the present petitioners can participate. Except this no duties have been allocated to the petitioners. From this it is very clear that as per the Trust Deed the Managing Trustee alone is empowered to to put up buildings or structures on the said property or under the control and possession of the Trust. The other two trustees are not empowered to play any role prima facie except to participate in the Board Meeting.
8. So far as the occurrence is concerned, on 6.8.2012, while the workers were doing construction work, at about 3.30 p.m. due to sudden collapse the pillar has fallen which resulted in 6 persons working in the premises died on the spot and 6 other persons sustained injuries and while they were taken to hospital, one of them died on the enroute to the hospital. Even in this aspect, they have not mentioned about the role played by the petitioners. As already stated above, the petitioners name is not find a place in the FIR. Further, in the inquest report also nothing has been stated about the petitioners and in the statement recorded under Section 161(3) of Cr.P.C. one Bijimadili has stated that "Management has directed them to complete the construction work expeditiously":
VERNACULAR (TAMIL) PORTION DELETED Further bald allegation has been made that the management alone has insisted to complete the construction expeditiously. This aspect alone has been mentioned in the statement recorded under 161(3) of Cr.P.C. from the witnesses on 7.8.2012 and 8.8.2012. Thereafter, the prosecution has made some improvement that on examination of one witness One Rattool Bhora aged 22. He has stated that:
VERNACULAR (TAMIL) PORTION DELETED In the statement recorded from one Kasiram Paithana has stated that:
VERNACULAR (TAMIL) PORTION DELETED In the statement recorded from one Ravichandran, he has stated that:
VERNACULAR (TAMIL) PORTION DELETED The statements of Jawagar and other persons also has been recorded. On careful reading of the statement it is clear that it is an hearsay statement made by same person against the present petitioners.
9. The learned counsel appearing for the petitioner contended that the present petitioners are only Trustees. It appears that FIR has been registered against the petitioners for the offence punishable under Section 304(ii) of IPC for vicarious liability. Since the petitioners are Trustees as per the principle the Trustees of the Trust are not liable for vicarious liability. Hence, the charges against the petitioners has to be quashed.
10. The learned Additional Public Prosecutor contended that these aspects can be considered only at the time of trial and not at this stage. Hence, he prays that the petition has to be dismissed.
11. The legal objections raised by the learned counsel appearing for the petitioners has to be seen. It is not in dispute that the petitioners are trustees and they have been figured as accused only because they happen to be the trustees of the Trust. Even though the petitioners are the Trustees of the Jeppiar Remibai Trust, there is no iota of evidence to show that the petitioners have played a vital role in the construction of the building in question. Further, the perusal of the Trust Deed it is seen that the petitioners/Trustees have no role in decision making and there is no evidence to show that under their supervision the building construction work was going on. On the mere trusteeship, without any evidence regarding the specific role played by them whether in the capacity of Trustees the prosecution can lay charge sheet against them has to be seen.
Whether the prosecution can lay charge sheet against the petitioners in the capacity of trustees has to be seen.
12. In the case of B.Jagadeesh and 5 others vs. The Deputy Superintendent of Police, EOW II, Namakkal, reported in 2011(2) MWN (Crl.) 494, in para 20 and 21 it has been held as follows:
"20. .........The Hon'ble Supreme Court in Maksud Syed vs. State of Gujarat and others reported in (2008) 5 SCC 668 wherein in paragraph No.13, it is held as follows:
#...The bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.#
21. A close reading of the above judgments would make it clear without any doubt that unless and until, a provision is made, making the Directors of a company vicariously liable for the offence committed by the company, it is not legal to prosecute the directors of the company."
In paragraph 23 of the judgment this Court held as follows:
"23. .......as I have already stated, in so far as the Indian Penal Code is concerned, there can be no vicarious liability fastened on the Directors of the company for the offence committed by the company for want of any penal provision making the directors also vicariously liable for punishment. That is the view consistently taken by the Honourable Supreme Court in the judgments which I have referred to supra."
This Court has held on previous occasion in the TANPID case it has been held that except under the special enactment there is no vicarious liability against the person who is the trustee. Exception is under Section 34 and 149 of IPC.
13. This Court has taken a same view in the case of M/s. Abraham Memorial Educational Trust, and Ors., Vs. C.Suresh Babu reported in 2012 (2) L.W. (Crl.) 196 in a case under Section 138 of the Negotiable Instruments Act that there is no vicarious liability against the Trustees as the trust is only a juristic personality and the Trustees are only the beneficiaries in the subject matter of the trust property or trust money, he is having only beneficial interest.
14. In this case also same view has been taken by this Court. The trust is a charitable or otherwise juristic person, special enactment alone can convict the directors. Not under IPC. Therefore, as the trust even though all the three trustees have been figured as accused only for the two trustees alone this petition has been filed and no petition has been filed for the Managing Trustee. Therefore, this Court is not expressing any opinion on this aspect. This Court ultimately opined that in view of the Judgment of the Hon'bls Apex Court and the judgments rendered by this Court reported in 2011 (2) MWN (Crl.) 494 and 2012(2) L.W. (Crl.) 196 (supra) it has been specifically held that except under the exceptional enactment the offeence under Indian Penal Code will not attract the vicarious liability. Except Section 34 and 149 of IPC, there is no other provision in the Indian Penal Code making constructive liability.
15. In certain special enactments like Motor Vehicles Act, Industrial Disputes Act, Customs Act, Excise, Negotiable Instruments Act etc., there are specific provisions creating vicarious liability for example if an offence punishable under Section 138 of the Negotiable Instruments Act has been committed by a company, the company is punishable. But the vicarious liability has been created under Section 141 of the Negotiable Instruments Act states that if the person committing the offence under the Act is a company, the company as well as the person in charge of the day to day affairs of the company also liable for punishment. Thus, in respect of the Director or other persons in charge of the day to day affairs of the company, they were vicariously made liable for punishment. But the offence so committed by the person is punishable under any one of the provisions of Indian Penal Code, unless the other person falls within the obiter of Section 34 or 149 of IPC., he cannot be held incriminatingly liable for punishment for the offence committed by the other.
16. If an offence punishable under Indian Penal Code has been committed by a Trust, whether the Trust can be punished is the question for consideration before this Court in the case of M/s. Abraham Memorial Educational Trust, and Ors., Vs. C.Suresh Babu reported in 2012 (2) L.W. (Crl.) 196.
17. The argument before this Court was the Trust is not a person in terms of Section 11 of IPC and the Trust cannot be punished. After having elaborately dealt with the scope of Section 11 of IPC, this Court has held that a Trust either private or public charitable trust is a person in terms of Section 11 of IPC and so such a Trust can be punished.
18. I fully agree with the view taken by brother Justice S.Nagamuthu in a given case that the Trust is the person who has committed offence punishable under Section 3 of IPC. No other person including the Trustees can be punished since there can be no vicarious liability for the Trustee at the same time, if the Trustee or any other person participated in the crime committed by the Trust then invoking Section 3 of IPC the said Trustee (a) person can also be punished.
19. In the instant case, there is no materials even prima facie to show that the petitioners participated in any manner in the construction of alleged crime they can be prosecuted for the alleged offence committed by the Trust. In this case the petitioners are only trustees and the trustees are only to get the money or beneficiary alone. Therefore, I am of the view that the vicarious liability against the petitioners cannot be maintainable in law.
20. The next contention of the learned counsel for the petitioners is that this Court in a similar situation has already decided the issue. Therefore, this Court cannot go back from the said verdict. Hence the FIR against the petitioners has to be quashed. The learned counsel relied on the judgment in the case of Public Prosecutor v. Pitchaiah Moopanar alias Pitchaiah Pillai reported in 1969 L.W. (Crl.) 158. In the said case a portion of the building collapsed while classes were being held in the school resulting in the death of 35 girl students and a middle aged woman and 16 students sustained grievous injuries and 142 students sustained simple injuries. A cow and two calves died, and one cow injured. Based on the report of the Executive Engineer a charge sheet was filed against the respondent under Sections 304-A, 336, 338, 288 and 290 read with 109 IPC. The learned Magistrate convicted the respondent for the rash and negligent act. On appeal the learned Sessions Judge acquitted the respondent. The State preferred an Appeal against the acquittal before this Court and this Court has dismissed the said appeal confirming the judgment of acquittal passed by the learned Sessions Judge. The relevant portion of the judgement runs as hereunder:-
" The prosecution has not established beyond reasonable doubt that the school building collapsed causing the death of several persons and injuries to several others by the rash and negligent act of the respondent. It is not the case of the prosecution that the respondent himself constructed the building. It is not disputed that he sought the assistance of the masons and the masons constructed the building. If the masons had not done the work properly and if they had been negligent in not mixing the lime and mortar in proper proportions, the respondent could not be liable for the negligence of those persons who actually constructed the building, who are supposed to be skilled. The respondent is a layman. He therefore, cannot be held liable for the negligence of the persons who actually constructed the building, which negligence is the Causa Causons for the collapse of the building. "
21. In the case on hand the incident took place on 6.8.2012 at about 3.30 p.m. FIR was registered on the same day i.e. 6.8.2012 and thereafter, the petitioners were arrested on 9.8.2012 in Crime No.679 of 2012 and thereafter, interim bail for 10 days from 21.8.2012 to 31.10.2012 was granted by this court by order dated 21.8.2012 with a condition that Jeppiaar Institute of Technology shall deposit ex gratia amount at the rate of Rs.2,50,000/- each in favour of the legal heirs of the deceased persons and Rs.50,000/- each to the injured victims within a period of one week to the credit of Crime No.679/2012 before the learned Judicial Magistrate, Sriperumbudur. Later on regular bail has been granted by this Court by order dated 31.8.2012 made in Crl.O.P.No.19301 of 2012. Even at the time of granting bail this Court has observed as follows:-
" 10. Again, when the matter was taken up yesterday i.e. on 30.08.2012, the learned Senior Counsel for the petitioner produced evidence to the effect that an amount of Rs.26,00,000/- as directed by this Court, has been deposited before the learned District Munsif cum Judicial Magistrate, Sriperumbudur.
11. Admittedly, the petitioner is a Trustee and also a Chairman of various Institutions. In collapsing of wall which caused the death of 10 persons, the petitioner is alleged to have committed an offence punishable under Section 304(ii) IPC.
12. In 1969 L.W. (Crl.) 158 ( Public Prosecutor v. Pitchaiah Moopanar alias Pitchaiah Pillai), this Court had an occasion to consider the defective construction of a building which collapsed causing the death of several persons. This Court held as follows:
"It is not the case of the prosecution that the respondent himself constructed the building. It is not disputed that he sought the assistance of the masons and the masons constructed the building. If the masons had not done the work properly and if they had been negligent in not mixing the lime and mortar in proper proportions, the respondent could not be liable for the negligence of those persons who actually constructed the building, who are supposed to be skilled. The respondent is a layman. He therefore, cannot be held liable for the negligence of the persons who actually constructed the building, which negligence is the Causa Causons for the collapse of the building. "
13. Admittedly, the petitioner was not incharge of the construction of a particular Institute coming under the Trust. In any event, now, the case has been registered and interim order has already been passed and the only thing left to consider is whether by enlarging the petitioner on bail, the petitioner will be in a position to tamper with the witness; whether the petitioner will interfere in the investigation and whether the petitioner will free from justice.
14. Constructing building without approval does not make any change in the allegations made against the petitioner. The appropriate authority has to take action for such violation.
15. Now the case has been registered and substantial part of investigation is over and also taking note of the crucial change of circumstances, this Court is of the view that no prejudice would be caused to the prosecution if the petitioner is enlarged on bail by imposing stringent conditions to ensure that the petitioner will not tamper the witnesses and flee from justice.
16. Accordingly, the petitioner is ordered to be released on bail on the same sureties already executed by the petitioner and on further condition that the petitioner shall stay at Nagercoil and report before the learned Judicial Magistrate No.I, Nagercoil daily at 10.30 a.m., for a period of four weeks. "
22. From this, it is very clear that the said Judgment squarely applies for the present facts of the case also. The construction work has been done by the mason and it has been supervised by the skilled persons viz., two Civil Engineers who are also arrayed as accused in this case. The owner of the building is not responsible for the negligence on the part of the skilled workers under whose supervision the building has been constructed. The Civil Engineers and other supervising staff alone are responsible for the rash and negligence. This Court at the time of granting regular bail to the first petitioner has recorded that the first petitioner has deposited a sum of Rs.26,00,000/- as directed by this Court towards ex gratia amount at the rate of Rs.2,50,000/- each in favour of the legal heirs of the deceased persons and Rs.50,000/- each to the injured victims will prove the gesture shown by the trustees towards the legal heirs of the deceased workers and the injured persons. From this one can easily come to the conclusion that it is a case arising out of sympathy. The incident must have been happened only because of the negligence on the part of the workers and certainly there is no negligence on the part of the trustees. The Investigating Officer has very fairly recorded the Statements under Section 161 of Cr.P.C. without any embellishment. Otherwise the officer could have written the statements suit for his convenience also to be noted. So far as the first petitioner is concerned, he is also taking treatment for his ailment. So far as the second petitioner is concerned nothing has been recorded against her except she is the trustee of the said trust. Further, at the time of granting bail in Crl.O.P.No.19301 of 2012 dated 31.8.2012 itself this Court has held that no case has been made out and further concluded on relying on 1969 L.W. (Crl.) 158 holding that no incriminating statement is available against the petitioners. Under this juncture, this Court has no option except to sail with the earlier view taken by this Court. Hence, I am of the view that there is no case is made out against the petitioners.
23. Already this Court at the time of granting bail to the petitioners also considered this aspect elaborately. Considering all these aspects, the FIR in Cr.No.679/2012 dated 06.08.2012 on the file of the first respondent as against the petitioners alone is quashed. The respondent is at liberty to proceed with the investigation in so far as the other accused are concerned and file final report as per law. FIR against the petitioners. This Criminal Original Petition is allowed. Consequently, M.P.Nos. 1 and 2 are closed.
gr.
To The Inspector of Police C 2 Sunkuvar Chatram Police Station Kancheepuram District