Karnataka High Court
Kuldeep S/O. Bandu More vs The State Of Karnataka on 23 September, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC-D:11152
CRL.P No. 101944 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 101944 OF 2023
BETWEEN:
KULDEEP S/O BANDU MORE,
AGE. 41 YEARS, OCC. ARCHITECT,
R/O. 317/A, "MORE BUILDING",
SPM ROAD, 1ST CROSS,
BELAGAVI-590001.
... PETITIONER
(BY SRI. JAGADISH PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH KHADEBAZAR POLICE STATION, BELAGAVI,
R/BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT OF
VISHAL KARNATAKA,
NINGAPPA BENCH AT DHARWAD.
PATTIHAL 2. ARJUN NAGAPPA KARIJAN,
AGE. 49 YEARS, OCC. LABOURER,
Digitally signed by
VISHAL NINGAPPA R/O. PATTIHAL, K.B, TQ. BAILHONGAL,
PATTIHAL NOW AT MARUTI GALLI,
Date: 2023.09.26 TQ. & DIST. BELAGAVI,
12:00:05 +0530 KARNATAKA-590001.
... RESPONDENTS
(BY SRI. MADANMOHAN M. KHANNUR, AGA FOR R1)
THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
SEEKING TO QUASH THE ENTIRE PROCEEDINGS IN CC NO.1937/2022
PENDING ON THE FILE OF JMFC-III, BELAGAVI WITH RESPECT TO
KHADEBAZAR P.S. CRIME NO.25/2022 FOR OFFENCES PUNISHABLE
U/S 336, 337 AND 304A R/W 34 OF IPC WITH RESPECT TO THE
PETITIONER/ACCUSED NO.3.
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NC: 2023:KHC-D:11152
CRL.P No. 101944 of 2023
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court calling in question the proceedings in C.C. No.1937 of 2022 registered for the offences punishable under Sections 336, 337 & 304A read with Section 34 of the IPC. The petitioner is accused No.3, an Architect by profession.
2. Heard the learned counsel Shri Jagadish Patil & Shri Vyas Desai appearing for the petitioner and the learned AGA Shri M.M. Khannur appearing for respondent No.1 - State.
3. Facts in brief germane are as follows:
On 28.04.2022, a complaint comes to be registered by the fellow labourer, who was working for digging a pit. The deceased would sustain injuries due to a fall, the deceased getting succumbed to the said injuries. Based upon the said incident, a crime comes to be registered in Crime No.25 of 2022 on 28.04.2022 for the offences punishable under -3- NC: 2023:KHC-D:11152 CRL.P No. 101944 of 2023 Sections 336, 337 & 304A read with Section 34 of the IPC.
The Police after the investigation file a charge sheet against the petitioner and others. The petitioner is arrayed as accused No.3 for the aforesaid offences. The petitioner is arrayed as accused on the score that he is an Architect who has prepared the plan for the building in which the work was taking place and the incident of mishap had happened.
4. Learned counsel appearing for the petitioner would submit that the acts of the petitioner would neither rash nor negligent as is necessary under Section 304A of the IPC. He would seek to place reliance upon the judgment rendered by this Court in the case of Shri Vishwas V. Vs. the State of Karnataka and another in W.P. No.5609 of 2022, disposed off on 01st June 2022 to buttress his submission with regard to the acts of the petitioner not amounting to either rash or negligent for him to be arrayed as accused in the aforesaid criminal case. He would submit that the petition be allowed as Section 304A would not become applicable to the facts of the case at hand. -4-
NC: 2023:KHC-D:11152 CRL.P No. 101944 of 2023
5. The complainant - second respondent though served remained unrepresented even as on date. Therefore, the learned counsel appearing for the petitioner and the learned AGA are heard in the matter.
6. Learned AGA would refute the submissions to contend that though the petitioner is an Architect, who is responsible for the planning of the place in which the mishap had happened. He would further submit that the Police after the investigation have filed a charge sheet and therefore, the petitioner should come out clean in the full blown trial. It is the case of the learned AGA that the petitioner is an Engineer and not an Architect, who is incharge of the construction and being an incharge of the construction equally responsible for what happens in the place of construction. He would seek dismissal of the petition.
7. The afore-narrated facts are not in dispute. The petitioner is an Architect is a matter of record for the -5- NC: 2023:KHC-D:11152 CRL.P No. 101944 of 2023 reason that the petitioner has produced his certificate of registration from the councilor of Architecture which is valid through 31.12.2018 to 31.12.2028. Therefore, the petitioner is an Architect by profession is vindicated by the said certificate. The petitioner prepares a plan for construction of work and the execution of it was the responsibility of other accused. The petitioner after preparation of the plan had nothing to do with the property in which the alleged mishap happens. If the petitioner is an architect was only prepare the plan for the execution of the work his acts can neither be held to be rash or negligent, which would become an offence punishable under Section 304A of the IPC.
8. Section 304A of the IPC reads as follows:
"304A. 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."-6-
NC: 2023:KHC-D:11152 CRL.P No. 101944 of 2023
9. Section 304A of the IPC would require two key ingredients for it to become an offence. One if the act of the accused should be rash and the other negligent; if the petitioner has only prepared a plan of the place of construction or digging of the pillers at which point in time the fellow labourer of the complainant would die, it cannot be halved for the offence punishable under Section 304A of the IPC as it cannot be construed that it is an act which is either rash or negligent. The interpretation of Section 304A of the IPC need not detain this Court for a long for delve deep into the matter. This Court in W.P. No.5609 of 2022, disposed off on 01st June 2022 concerning an Architect who was similarly placed like that of the petitioner has passed the following order:
9. The afore-mentioned facts are not in dispute. On 10.10.2020 an unfortunate incident takes away the life of a worker who was working under a contractor entrusted with the work of construction of the house of accused No.3, owner. The petitioner was one who had initially visited the property and had drawn up design of the house and had nothing to do after the act of the petitioner giving the design in terms of the agreement so entered into between the owner and the petitioner. The crime is registered for offences punishable under Section 304A arraigning -7- NC: 2023:KHC-D:11152 CRL.P No. 101944 of 2023 the petitioner/ charged Architect as accused No.2, owner of the house as accused No.3 and the contractor as accused No.1 under whom the worker was performing the duty on that day. The police after investigation filed a charge sheet dropping the name of accused No.3/owner of the property whilehauling up the petitioner as accused No.2 for offences punishable under Section 304A of the IPC.
10. Section 304A of the IPC reads as follows:
"304A. 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."
Section 304A of the IPC has two components in it. The result of death should be out of rash or negligent act by the accused. Section 304A of the IPC mandates that whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide be punished. Therefore, the act should be either rash or negligent.
11. The petitioner, as stated earlier, is an Architect who had designed the building and had given it to the owner in terms of the agreement. The owner had entrusted the work of construction to accused No.1 under whom the worker on the day working and unfortunate incident of his death happened. It cannot be said that design of the house by the petitioner was an act of rash or negligence that had caused the death of the worker. It would be too far to stretch Section 304A of the IPC to contend that a person who had designed the house is responsible for death of a worker while undertaking construction under a contractor. In this -8- NC: 2023:KHC-D:11152 CRL.P No. 101944 of 2023 regard reference is made to the three Judge Bench judgment of the Apex Court in the case of AMBALAL D.BHATT v. STATE OF GUJARAT reported in (1972) 3 SCC 525 wherein it is held as follows:
"10. It appears to us that in a prosecution for an offence under Section 304- A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. If that were so, the acquittal of the appellant for contravention of the provisions of the Act and the Rules would itself have been an answer and we would have then examined to what extent additional evidence of his acquittal would have to be allowed, but since that is not the criteria, we have to determine whether the appellant's act in giving only one batch number to all the four lots manufactured on November 12, 1962, in preparing Batch No. 211105, was the cause of deaths and whether those deaths were a direct consequence of the appellants' act, that is, whether the appellants' act is the direct result of a rash and negligent act and that act was the proximate and efficient cause without the intervention of another's negligence. As observed by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap [(1902) 4 Bom LR 679] the act causing the deaths "must be the causa causans; it is not enough that it may have been the cause sine qua non". This view has been adopted by this Court in several decisions. In Kurban Hussein Mohammedali Rangwala v. State of Maharashtra [(1965) 2 SCR 622] the accused who had manufactured wet paints without a licence was acquitted of -9- NC: 2023:KHC-D:11152 CRL.P No. 101944 of 2023 the charge under Section 304-A because it was held that the mere fact that he allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it would be a negligent act, would not be enough to make the accused responsible for the fire which broke out. The cause of the fire was not merely the presence of the burners within the room in which varnish and turpentine were stored, though this circumstance was indirectly responsible for the fire which broke out, but was also due to the overflowing of froth out of the barrels. In Suleman Rehiman Mulani v. State of Maharashtra [(1968) 2 SCR 515] the accused who was driving a car only with a learner's licence without a trainer by his side, had injured a person. It was held that that by itself was not sufficient to warrant a conviction under Section 304-A. It would be different if it can be established as in the case of Bhalchandra alias Bapu v. State of Maharashtra [(1968) 3 SCR 766] that deaths and injuries caused by the contravention of a prohibition in respect of the substances which are highly dangerous as in the case of explosives in a cracker factory which are considered to be of a highly hazardous and dangerous nature having sensitive composition where even friction or percussion could cause an explosion, that contravention would be the causa causans."
The Apex Court clearly holds that cause of death should be a direct consequence of the act of the accused and that should be an act either rash or negligent and proximate to the cause of such death. By no stretch of imagination the petitioner can be hauled into the proceedings for offences punishable under Section 304A of the IPC in the
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NC: 2023:KHC-D:11152 CRL.P No. 101944 of 2023 light of the fact that he was in any way neither responsible for construction nor was he present at the place of construction nor even had any proximity to the act which was either rash or negligent. The Apex Court in the case of STATE OF HARYANA v. BHAJAN LAL reported in (1992 Supp. 1 SCC 335) has clearly held the parameters of exercise of jurisdiction under Section 482 of the Cr.P.C. The Apex Court at paragraph 102 holds as follows:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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
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NC: 2023:KHC-D:11152 CRL.P No. 101944 of 2023 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 uncontroverted 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 noncognizable 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) 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
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NC: 2023:KHC-D:11152 CRL.P No. 101944 of 2023 vengeance on the accused and with a view to spite him due to private and personal grudge."
(Emphasis supplied) The first clause, as held by the Apex Court in the aforesaid judgment, is clearly applicable to the facts of the case at hand, as taking note of the fact cannot be construed to become an offence as alleged. The facts of the case at hand clearly indicate that no offence under Section 304A of the IPC could be laid against the petitioner and, therefore, there is need to exercise jurisdiction of this Court under Section 482 of the Cr.P.C. to terminate such proceedings against the petitioner.
12. For the aforesaid reasons, I pass the following:
ORDER
(i) Writ Petition is allowed and the proceedings in C.C.No.28916 of 2021 pending before the Chief Metropolitan Magistrate, Bangalore stand quashed qua the petitioner.
(ii) It is made clear that the observations made in the course of the order would not influence or bind any proceedings or trial against any other accused inC.C.No.28916 of 2021.
10. This Court followed the judgment of the Apex Court in the case of Ambalal D.Bhat Vs. the State of Gujarat reported in 1972(3) SCC 525 to quash the proceedings against the petitioner therein. The said
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NC: 2023:KHC-D:11152 CRL.P No. 101944 of 2023 judgment is again followed by the Three Judges Bench of the Apex Court in the case of Nanjundappa and Another Vs. State of Karnataka reported in 2022 SCC OnLine SC 628, wherein the Apex Court considers the purport of Sections 304 & 304A of the IPC and how the act would become rash or negligent. The Apex Court has held as follows:
"10. In case of circumstantial evidence, there is a risk of jumping to conclusions in haste. While evaluating such evidence the jury should bear in mind that inference of guilt should be the only reasonable inference from the facts. In the present case however, the conviction of the accused persons seems wholly unjustified against the weight of the evidence adduced. As far as the onus of proving the ingredients of an offence is concerned, in the judgment titled as "S.L. Goswami v. State of M.P. "
this Court held:--
"5 ..... In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case,
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NC: 2023:KHC-D:11152 CRL.P No. 101944 of 2023 which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
11. Bearing in mind the above principles which have been laid down in the decisions of this Court, we are of the view that the Courts below were not justified in convicting the Appellants of negligence under Section 304A read with Section 34 IPC."
11. In the light of the judgment of Apex Court in the case of Ambalal D.Bhat Vs. the State of Gujarat (Supra) and in the case of Nanjundappa and Another Vs. State of Karnataka (Supra) if further proceedings are permitted to continue against the petitioner, it would become an abuse of process of law and result in miscarriage of justice.
12. For the aforesaid reasons, the following:
ORDER
(i) The petition is allowed.
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(ii) The proceedings in C.C. No.1937 of 2022 registered for the offences punishable under Sections 336, 337 & 304A read with Section 34 of the IPC, stands quashed.
(iii) It is made clear that the observations made in the course of the order is only for the purpose of consideration of the case of the petitioner filed under Section 482 of the Cr.P.C. and would not become applicable or binding on any other accused in the impugned case.
Sd/-
JUDGE vnp*/ct:bck List No.: 1 Sl No.: 16