Andhra Pradesh High Court - Amravati
Smt. Bogulla Sujatha, E.G.Dist. vs P.P., Hyd Ano on 2 July, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
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THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
CRIMINAL PETITION NO. 6753 of 2014
This Criminal Petition, under Section 482 Cr.P.C., is
filed to quash the proceedings in FIR No.75 of 2014 of
Mandepata Town Police Station, East Godavari District,
registered for the offences punishable under Sections 304-A
and 337 IPC.
Respondent No.2 lodged a report Dt. 21.04.2014 with
police alleging that one day before lodging the report, during evening hours, Banka Sreenu, Srinu and the complainant himself, were called by one Garu Sattibabu, for demolition of an old house and accordingly, on 21.04.2014 at about 6.00 am, all of them went to spot, which is situated at Valluruvari Street, for demolition of storied building. While demolishing the upstair at about 7.30 am, three coolies started demolition and all of sudden one wall fell upon them. However, respondent No.2 escaped from the spot and the bricks of the wall fell on them and when they were shouting loudly, neighbors came there and removed the bricks. Banda Sreenu and Srinu also suffered injuries and thereafter, they were shifted to the hospital situated at Mandapeta Bikkana Krishnarjuna gari Hospital and the Doctor, who examined Banda Sreenu, confirmed that he died. Thus, the petitioner 2 committed the offences punishable under Sections 304- A and 337 IPC.
The main contention of the learned counsel for the petitioner is that the petitioner had no intention to commit such offences and they were engaged only as coolies by contractor/2nd respondent and nothing to do with the offences punishable under Sections 304- A and 337 IPC.
The allegations made in the complaint do not constitute any offence much less the offences punishable under Sections 304- A and 337 IPC. The petitioner is, admittedly, the owner of the house and intend to construct new building by demolishing the existing house and accordingly, he engaged a contractor i.e., respondent No.2, who has to remove the entire house material, and thereafter, the petitioner went to USA to attend her relatives for a brief period and thereafter, she came to know that Banda Sreenu died accidentally and on the report given by the Co-worker, respondent No.2, the said crime was registered arraying the petitioner herein as Accused No.1. The said incident was also published in the newspapers. Thus, the petitioner has no nexus with the offences stated above and prayed to quash the proceedings against the petitioner.
Respondent No.2 though engaged Sri Chandra Sekhar Ilapakurti, no Counter is filed and no argument is advanced. 3
Ms. M. Anusha, learned counsel for the petitioner, contended that such incident would not constitute any offence much less the offences punishable under Sections 304-A and 337 IPC and placed reliance on a judgment reported in Kurban Hussein Mohammedali Rangwalla v State of Maharashtra1 in support of her contentions. She also contended that the she never engaged the deceased and there is no relationship of employee and employer and in such a case, she cannot be saddled with any liability for the offences stated above and prayed to quash the proceedings.
As seen from the allegations made in the complaint, respondent No.2 and other coolies including Banda Sreenu were engaged as coolies for demolition of the building situated at Valluruvari Street and while demolishing the wall, the wall suddenly fell on them and B.Sreenu succumbed to the injuries received in the same incident. However, the complaint is silent who engaged their services whether second accused engaged their services or this petitioner engaged their services, is not clear. Even otherwise, as per the FIR, second accused is the contractor, who engaged the other accused for demolition of the building. In such a case, the petitioner, who has no connection with the deceased and the injured complainant and another injured. At best, the 1 AIR 1965 SC 1616 4 Contractor, who engaged the services of the coolies, can be made liable for such offences, subject to proof of culpable rashness and negligence in carrying out the demolition work. But, this Petitioner being lady, who engaged the contractor for demolition, has nothing to do with the incident and in the absence of any allegation that she acted in rash and negligent manner, she cannot be tried for an offence much the offences punishable under Sections 304-A and 337 IPC.
An identical question came before the Apex Court in Kurban Hussein's case, referred above, the Court held that the cause of death was not due to rash or negligent act as there was no nexus between the death of the deceased and conduct of the accused. In the facts of the above judgment, the deceased was engaged by owners of the factory styled as styled as Carbon Dry Colour Works, which manufactures paints and varnish. The factory was licensed by the Bombay Municipality in the year 1953 to manufacture paints involving a cold process and was located at 79/81 Jail Road, Dongri. The factory was also licensed to store 455 litres of turpentine, 455 litres of varnish and 14000 gallons of paint. The license was issued subject to certain conditions to which we shall refer later. The appellant is the manager and working partner. He converted the factory from the cold process of manufacturing dry paints to a process of manufacturing wet paints by heating. For that purpose four 5 burners were used for the purpose of melting rosin or bitumen by heating them in barrels over the burners and adding turpentine thereto after the temperature cooled down to a certain degree. On April 20, 1962, this process was going on in the factory which had no license for manufacturing wet paints through heating. Hatim Tasduq was the person looking after the operation. According to him the rosin was melted on one burner and lime was added and the whole thing was boiled for half an hour. Thereafter the burner was extinguished and the barrel in which the rosin was melted was allowed to cool. This began at about 4 P.m. The barrel in which the rosin is melted is about 4 /12 feet high and after the temperature comes down to a certain level turpentine is added in the barrel to prepare Black Japan. Hatim Tasduq takes a drum X of 5 gallons of turpentine which is poured into the barrel. As turpentine is poured, the mixture begins frothing and in order to keep down the froth the whole thing is stirred all the time. One man helps Hatim Tasduq in this operation. On April 20, 1962, rosin was melted and the barrel was allowed to cool down from 4 P.m. At about 5 P.m. Hatim started pouring turpentine, into the barrel. It may be mentioned that 5 P.m. is the closing time and the process of pouring turpentine started just about that. As soon as Hatim started pouring turpentine the mixture began to froth. Hatim was unable to stir as according to him his assistant had gone 6 some distance and he could not give the drum of turpentine to him so that he might stir the mixture. The result was that forth overflowed out of the barrel and because of heat, varnish and turpentine, which were stored at a short distance, caught fire. Seven men were working in a loft which is reached by a ladder and where manufactured paint is stored. The material in the premises being of combustible nature, the fire spread rapidly. Those who were working on the ground-floor managed to get out with burns only but those who were working in the loft could not get out in time with the result that all seven of them were burnt to death. The fire-brigade was sent for, but in view of the combustible nature of the material stored it took 21 hours to bring the fire under control. After the fire was controlled, bodies of four workmen were recovered the same night. Next morning two more bodies were recovered and in the afternoon one more body was found. Thus seven of the workmen lost their lives while seven other workmen suffered bums and were sent to hospital where they were treated as indoor patients.
In the said incident, one person died. But the Court held that it would not constitute any offence. Even otherwise, to constitute an offence punishable under Section 304 IPC, mere negligence or rashness are not sufficient and there must be a culpable rashness and negligence, which means acting in derogation of the duty knowing the consequences 7 that flow from such act inviting risk while doing an act. The complaint is absent of such allegation.
The Apex Court defined 'culpable negligence' in an unreported judgment in Mohammed Aynuddin @ Miyam Vs. State of Andhra Pradesh, wherein their Lordships Justice R.P.Sethi and K.T.Thomas, defined what is culpable rashness and negligence on the part of bus driver in the accident as follows:
"A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precautions guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
In G.Kumar Vs. State of A.P. Rep. by Public Prosecutor2, K.Nagaraju Vs. State of A.P3 and K.Rajayya Vs. State of A.P. rep. by Public Prosecutor4, this Court held as follows:
"Mere driving of vehicle at high speed is not the determining factor about culpable rashness and negligence of the rider of the motorcycle or driver of the motorcycle."2
2009(3) ALT (Crl.) Page 20 (AP) 3 2009(2) ALT (Crl.) Page 298 (A.P.) 4 2010(3) ALT (Crl.) page 169 8 In another judgment reported in Subbarao Vs. State5, the Hon'ble Apex Court held as follows:
"Negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. There may be error of judgment when sudden breaks have applied. How much force is to be applied while applying the sudden breaks in a given situation may not be correctly estimated and there may be error of judgment. When somebody suddenly crosses the road or cyclist falls in front of the vehicle or a cattle run across the road, the drivers may not be in a position to avoid the accidents. Therefore, allegation the facts and circumstances should be taken into consideration before convicting an accused for the offence punishable under Section 304-A of I.P.C."
From the reading of the principles laid down in the decisions referred supra, mere proof of negligence and rashness for causing death of a person itself is not sufficient to convict the accused for the offence punishable under Section 304-A of I.P.C.
In the judgment reported in Syed Akbar Vs. State of Karnataka (AIR 1979 SC Page 1848), the Hon'ble Apex Court made it clear that causing death of a person itself is not sufficient to convict the accused for the offence punishable under Section 304-A of I.P.C.
5 1953 Crl.L.J. Page 643 9 In the facts of the above decision, the deceased took an erratic step towards back and due to that, the accident occurred. Had the deceased did not take such erratic step, the accident would have averted by the driver. Therefore, the Apex Court acquitted the accused for the offence punishable under Section 304-A of I.P.C.
In view of the principles laid down in the judgments referred supra, it is the duty of the prosecution to prove that the accident occurred due to negligence on the part of the driver knowing the ill-consequences that flow from such negligent act and running against the risk.
In the absence of culpability or culpable rashness or negligence, the accused cannot be convicted for any of the offences. But, the present Petition is filed to quash the proceedings at the stage of FIR and the petitioner was at USA engaged the contractor/R2 for the purpose of demolition of the building. In the absence of the relationship of employee and employer between the petitioner and the allegation that she is guilty of culpable rashness or negligence, the proceedings against the Petitioner are liable to be quashed, holding that the allegations made in the complaint do not constitute any offences much less the offences under Section 304-A and 337 IPC.
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The powers of this Court under Section 482 Cr.P.C. can be exercised only in certain circumstances. The Apex Court in State of Haryana v. Bhajan Lal6, considered in detail the provisions of Section 482 and the power of the High Court to quash criminal proceedings or FIR. The Apex Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.6
1992 Supp. (1) SCC 335 11 (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. By applying the guideline No.1, I find that registration of the FIR against this Petitioner is illegal as the allegation in the complaint do not constitute any offence much less the offences punishable under Sections 304-A IPC and Section 377 IPC, even if, the allegations in the complaint are accepting on its face value. Therefore, the proceedings against this Petitioner are liable to be quashed.
Accordingly, this Criminal Petition is allowed and the proceedings in FIR No.75 of 2014 of Mandapeta Town Police Station, East Godavari District, are hereby quashed.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
____________________________ M. SATYANARAYANA MURTHY, J Dt. 02--07--2019 eha 12 HONOURABLE SRI JUSTICE M. SATYANARAYANA MURTHY CRIMINAL PETITION No. 6753 of 2014 Dt. 02-07-2019 eha