Madras High Court
Nagasankar vs The Inspector Of Police on 20 April, 2022
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 04.02.2022
PRONOUNCED ON : 20.04.2022
CORAM :
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
Crl OP(MD)No.2225 of 2022
1.Nagasankar
2.Subramanian ...Petitioners/accused Nos.3 &
4
vs.
1.The Inspector of Police,
Vilakkuthoon Police Station,
Madurai City,
Madurai.
(Crime No.697/2021). ...1st Respondent/Complainant
2.Kannan ...2nd Respondent/Defacto Complainant
Prayer: Criminal Original Petition filed under Section 482 of Crimnal
Procedure Code to call for the records pertaining to the First Information
Report in Crime No.697 of 2021 dated 22.12.2021 on the file of the
Respondent No.1 and quash the same as illegal as against the petitioners.
For Petitioners : Mr.T.Lajapathi Roy
For Respondents : Mr.M.Sakthi Kumar
Government Advocate (Crl. Side)
https://www.mhc.tn.gov.in/judis
1/13
ORDER
“Not taking any decision is itself a decision”, so said
Shri.PV.Narasimha Rao, the ninth Prime Minister of India. In law also,
“act' would include “omission to act” as well. An omission is sometimes
called a negative act. The Hon'ble Supreme Court cautioned in
P.B.Desai v. State of Maharastra (2013) 15 SCC 481 that this seems
a dangerous practice for it too easily permits an omission to be substituted
for an act without requiring the special requirement for omission liability
such as legal duty and physical capacity to perform the act. Section 32 of
the IPC states that words referring to acts done extend also to illegal
omissions. The adjective “illegal” is highly significant and it is this that
has been emphasized in P.B.Desai.
2.The petitioners herein figure as A3 and A4 in Crime No.697 of
2021 registered on the file of the first respondent. They have filed this
criminal original petition to quash the F.I.R insofar as they are concerned.
The second respondent herein is the defacto complainant.
3.The case of the prosecution is as follows :
On 21.12.2021 a police patrol team comprising the defacto
complainant and one Head Constable by name Saravanan were on their
https://www.mhc.tn.gov.in/judis
2/13
rounds. At about 10.00 p.m they were standing near the occurrence spot.
The front portion of a building collapsed. The bricks fell on the defacto
complainant and the said Saravanan. Both sustained grievous injuries.
Saravanan later succumbed to the same. Initially, the case was registered
for the offence under Section 304 A and Section 338 of I.P.C. Later, an
alteration report was filed and the offence under Section 304 II of IPC was
added in place of Section 304 A.
4.The learned counsel appearing for the petitioners reiterated the
contentions set out in the memorandum of grounds and called upon this
Court to quash the impugned FIR insofar as the petitioners are concerned.
On the other hand, the learned Government counsel appearing for the
respondents submitted that the building in question was very old and in a
dilapidated condition. The petitioners were in occupation of the said
building as tenants. The Madurai Corporation has issued notice calling for
demolition of the building. Since the petitioners did not vacate the
premises, the demolition could not be carried out. Thus, the petitioners by
their act contributed to the occurrence. The case involves death of a Head
Constable. The learned Government counsel further submitted that no
case for quashing has been made out and that the investigation should be
allowed to proceed.
https://www.mhc.tn.gov.in/judis
3/13
5.The question that falls for consideration is whether the
ingredients of the offences under Section 304 II and 338 of IPC are
attracted as far as the petitioners are concerned. Section 304 of IPC reads
as follows :
“Punishment for culpable homicide not
amounting to murder.—Whoever commits culpable
homicide not amounting to murder shall be punished with
1[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.”
Section 304 A of IPC is as follows :
“Causing death by negligence.--Whoever
causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide, shall be
punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.”
https://www.mhc.tn.gov.in/judis
4/13
6.Section 304 IPC can be invoked only if the accused commits
culpable homicide not amounting to murder. If the act is intentional, it will
fall under Part I. If knowledge alone can be attributed and there is no
intention, then the offence will fall under Part II. Section 299 of I.P.C.
defines culpable homicide as follows:-
“Culpable homicide -Whoever causes death by
doing an act with the intention of causing death, or with
the intention of causing such bodily injury as is likely to
cause death, or with the knowledge that he is likely by
such act to cause death, commits the offence of culpable
homicide.”
Section 300 of I.P.C. defines ' murder '. It also sets out five exceptions. If
culpable homicide falls within the exceptions, then the act does not
amount to murder. Section 304 can be pressed into service only where the
accused causes bodily injury and has had either intention or knowledge. Of
course, failure to act when there is a legal duty could also be a cause for
death and in that event also, the penal provision can kick in. The condition
precedent is that the act or omission must be the proximate cause for the
death. If the act is committed intentionally or with knowledge of the
consequences, Section 304 of IPC will come into play. If criminal homicide
is caused recklessly or negligently, then Section 304A of IPC will be
attracted. In Sushil Ansal V. State (2014) 6 SCC 173, the Hon'ble
https://www.mhc.tn.gov.in/judis
5/13
Supreme Court approved the proposition laid down by Sir Lawrence
Jenkins in Emperor V. Omkar Rampratap (1902) 4 Bom LR 679 in
the following terms:-
“ ... to impose criminal liability under Section
304A of the Penal Code, 1860, it is necessary that the
death should have been the direct result of a rash and
negligent act of the accused, and that act must be the
proximate and efficient cause without the intervention of
another's negligence. It must have been the causa
causans; It is not enough that it may have been the causa
sine quo non.”
'Causa causans' has been defined in Black's Law Dictionary as the
immediate cause; the last link in the chain of causation. ' Proximate cause '
has been defined as that which in a natural and continuous sequence,
unbroken by any efficient intervening cause, produces injury and without
which the result would not have occurred. The injury or damage was either
a direct result or a reasonably probable consequence of the act or
omission.
Section 338 of IPC is as follows :
“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
https://www.mhc.tn.gov.in/judis
6/13
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.”
I can understand invoking Section 304 A and 338 of IPC in one breath.
But Section 304 and Section 338 IPC do not go together. If the case of
the prosecution is that the accused caused injuries by rashness or
negligence, then, obviously, the element of knowledge or intention gets
excluded. In this case, for reasons that are not quite clear, Section 304 II
of IPC has been invoked along with Section 338 of IPC.
7.Rustom Sherior Irani v. State of Maharastra, 1969 ACJ
70, is a case involving death of 11 persons due to collapse of a chimney.
The building owner had altered an existing chimney without getting proper
permission. He had utilized the services of a person who was not an
engineer and who was not qualified. He had also committed certain acts
which contributed to the collapse. The Hon'ble Court held that these
constituted negligent acts within the meaning of Section 304 A IPC. The
Hon'ble Supreme Court approved the principle laid down in Vishwanath
Vishnu Dabholkar vs. The King (AIR 1948 PC 183) that the
negligence which constitutes the offence must be of a higher degree than
the negligence which gives rise to a claim for compensation in a Civil
Court.
https://www.mhc.tn.gov.in/judis
7/13
8.Public Prosecutor v. Pitchaiah Moopanar (AIR 1970
Mad 198) is a case involving collapse of a school building resulting in the
death of 35 girl students and a middle aged woman. The correspondent
was prosecuted but he was acquitted. The acquittal was upheld by the
Madras High Court in the following terms :
9. It is not the case of the prosecution that the
respondent himself constructed the building. It is not
disputed that he sought the assistance o 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 mortar in proper proportions, the
respondent could not be made 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 cause causans for the collapse of the
building.
10.In Mohd, Rangawalla v. Maharashtra State, it is
held that death must be direct result of the rash or
negligent act of accused and the act must be efficient cause
without intervention of another's negligence, and it must be
the cause causans, and it is not enough that it may have
been the cause sine qua non.
11....
12.12. It is of course unfortunate that several
https://www.mhc.tn.gov.in/judis school children died as a result of the collapse. If the
8/13
Municipal authorities had taken care to inspect the building
periodically being a public institution, this unfortunate
incident could have been probably avoided. It is gratifying
to note that immediately after this incident, the State has
brought a legislation to control and regulate the
construction, upkeep and maintenance of the public
buildings. It is at least expected in future that the
authorities concerned would be vigilant and Jake that much
of the care expected of them to inspect the buildings,
wherein public institutions are housed, and, if they find
such buildings are unsafe, to take immediate appropriate
action as they deem fit.”
L.Ashok Kumar v. State, 2021 SCC Online Mad 2772 is another
important decision in which the principles governing invocation of Sections
338 and 304 A of IPC have been accurately summarized.
9.It has been brought to my notice that the Madurai Corporation
had issued notice under Section 327 of Madurai City Municipal Corporation
Act, 1971 as early as on 30.11.2020 calling upon the building owner to
take down the building. Section 327 of the Madurai City Municipal
Corporation Act, 1971 is as follows:
“327.Precaution in case of dangerous
structures.- (1) If any structure be deemed by the
Commissioner to be in a ruinous state or dangerous to
passers-by or to the occupiers of neighbouring
https://www.mhc.tn.gov.in/judis
9/13
structures, the Commissioner may, by notice, require
the owner or occupier to fence off, take down, secure
or repair such structure so as to prevent any danger
therefrom.
(2) If immediate action is necessary, the
Commissioner may himself, before giving such notice or
before the period of notice expires, fence off, take
down, secure or repair such structure or fence off a pat
of any street or take such temporary measures as he
thinks fit to prevent danger and the cost of doing so
shall be recoverable from the owner or occupier in the
manner provided in Section 479.
(3) If, in the Commissioner's opinion, the said
structure is imminently dangerous to the inmate
thereof, the Commissioner shall order the immediate
evacuation thereof and any person disobeying may be
removed by any police officer.”
The petitioners are only tenants occupying the ground floor portion. It
was a portion of the first floor which collapsed. The legal duty to pull
down the building was only on the owner. If under Section 327 (3) of the
Madurai City Municipal Corporation Act, 1971, the Commissioner had
ordered the petitioners to vacate from the building and they had not
complied with the said order, that would constitute an illegal omission.
There is nothing on record to show that the petitioners were served with
notice under Section 327(3) of the Madurai City Municipal Corporation Act,
https://www.mhc.tn.gov.in/judis
10/13
1971. The corporation officials need not have waited beyond the notice
period. Even according to them, the notice was served in November 2020.
The building owner was given 14 days time to demolish the building.
When the building owner did not take down the structure on his own, the
corporation could have stepped in and after giving notice to the occupiers
under Section 327 (3) of the said Act, the corporation could have taken
action on its own. The Madurai Corporation failed to do so. The petitioners'
omission to vacate the premises cannot by any stretch of imagination
would constitute the direct cause for the occurrence. The non-demolition
of the old building was the direct and proximate cause for the occurrence.
The petitioners could not have demolished the building on their own. The
building owner did not issue any eviction notice. The petitioners cannot be
imputed with any knowledge that their omission to vacate the building
would lead to the subject occurrence. The petitioners can be morally
blamed for having been in occupation of a dilapidated building even after
the local body served demolition notice. But this conduct does not meet
the standards of criminal liability as laid down in the aforesaid decisions.
10.The building owner was obviously under a legal duty to
demolish the building pursuant to the notice issued by the corporation.
The tenants who were in occupation of the ground floor portion cannot be
https://www.mhc.tn.gov.in/judis
11/13
prosecuted for the unfortunate occurrence. The petitioners did not have
any culpable knowledge or intention. None of the ingredients set out in
Sections 304 II, 304 A and 338 of I.P.C are present in this case. Even if we
take the prosecution case at its face value, no offence is made out.
Continuance of the impugned prosecution against the petitioners would
certainly amount to an abuse of legal process. The impugned F.I.R is
quashed in so far as the petitioners are concerned. I make it clear that I
am not quashing the F.I.R as such. The prosecution will go on against the
main accused. This Criminal Original Petition is allowed on these terms.
20.04.2022
Index : Yes/No
Internet:Yes/No
skm
To
1.The Inspector of Police, Vilakkuthoon Police Station, Madurai City,
Madurai.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
12/13
G.R.SWAMINATHAN, J.
skm Crl O.P(MD)No.2225 of 2022 20.04.2022 https://www.mhc.tn.gov.in/judis 13/13