Karnataka High Court
Anurag Jain vs State Of Karnataka on 28 October, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 29.07.2024
Pronounced on : 28.10.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.7969 OF 2023
BETWEEN:
ANURAG JAIN
S/O LAKSHMIPATHI JAIN
AGED ABOUT 65 YEARS
RESIDING AT 17/1, ALI ASKAR ROAD,
BENGALURU - 560 051.
... PETITIONER
(BY SRI SHANKARAPPA S., ADVOCATE)
AND:
STATE OF KARNATAKA
BY JEEVAN BHIMA NAGARA P.S.,
THROUGH HCGP
HIGH COURT BUILDING
BENGALURU - 560 001.
... RESPONDENT
(BY SRI JAGADEESH B.N., ADDL. SPP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE PROCEEDINGS AGAINST THE
2
PETITIONER (ACCUSED NO.1) IN S.C.NO.1164/2010 ON THE FILE
OF 69TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU (CCH-70) IN CR.NO.69/2010 REGISTERED BY THE
JEEVAN BEEMANAGARA POLICE FOR THE OFFENCE P/U/S 304 AND
338 R/W 34 OF IPC.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 29.07.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/accused No.1 in Sessions Case No.1164 of
2010 pending before the 69th Additional City Civil and Sessions
Judge, Bengaluru is knocking at the doors of this Court calling in
question continuance of proceedings in the aforesaid Sessions case
registered for offences punishable under Sections 304 and 338 read
with Section 34 of the IPC.
2. Heard Sri S. Shankarappa, learned counsel for the
petitioner and Sri B.N. Jagadeesha, learned Additional State Public
Prosecutor for the respondent.
3
3. The facts, in brief, germane are as follows:-
It is the case of the prosecution that on 23-02-2010 fire
broke out in Carlton Towers, a commercial complex in the City of
Bangalore at 4.20 p.m. resulting in 9 persons losing their lives and
70 people getting injured. The petitioner along with 20 accused
were drawn into the web of crime on the score that their acts were
rash and negligent and, therefore, would attract offences
punishable under Sections 304 and 338 of the IPC. The crime
comes to be registered in Crime No.69 of 2010. The petitioner is
accused No.1. The respondent-police initially filed a charge sheet
and later on, an additional charge sheet. Today it is only the
petitioner who remains in the entire web of crime to be proceeded
against, as proceedings against all the other accused have been
quashed. It is, therefore, the petitioner has now knocked at the
doors of this Court in the subject petition, seeking quashment of
proceedings against him as well.
4. The learned counsel appearing for the petitioner
Sri S. Shankarappa taking this Court through the orders passed by
4
this Court quashing the proceedings against all other accused would
submit that the petitioner also stands on the same footing, as the
petitioner was not even present in the Commercial complex at the
time when the mishap took place. The entire mishap happens due
to accused No.21 installing cable duct and the cable duct was used
to supply power to the shops. The short circuit that happened in the
cable duct has resulted in the mishap. The allegation is directly
against accused No.21 who installed aluminum cable and not got
the place cleaned due to which short circuit occurred. All other civil
remedies were held in favour of the accused, as the Electrical
Inspector who had inspected the property has held that there was
no fault of any of the persons and it was due to short circuit that
has happened and the unit owners of Unit Nos. 111 to 113 had not
taken proper care of aluminum cables. With these findings and
notwithstanding the same, the Police had filed a charge sheet and
proceedings were registered as S.C.No.1164 of 2010. He would,
therefore, on parity along with other reasons, seek quashment of
the proceedings.
5
5. Per-contra, the learned Additional State Public Prosecutor
would seek to refute the submissions to contend that the petitioner
is accused No.1. All other accused had no role of play. Though the
petitioner has literally no role to play, the proceedings against him
need not be quashed. He would submit that it is a matter of trial in
which the petitioner should come out clean and seeks dismissal of
the petition.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The afore-narrated facts are not in dispute. Following
earlier order passed by a coordinate Bench of this Court in
T.G.MANDANNA V. STATE OF KARNATAKA - Criminal Petition
No.769 of 2011, I had allowed Criminal Petition No.4726 of
2012 decided on 21-10-2021 in the case of SANJAY GOEL V.
STATE OF KARNATAKA filed by accused No.18 in the very crime
with the following reasoning:
6
".... .... ....
7. The petitioner is accused No.18 in S.C.No.1164 of 2010
pending before the Presiding Officer, Fast Track Court-XV,
Bangalore. The reason for the petitioner being arraigned as an
accused is the incident that occurred on 23-02-2010 when the
fire broke out in Carlton Towers, a commercial complex in the
City of Bangalore which took 9 lives and left 70 injured. The
petitioner is arrayed as an accused as he is the Director of the
Company.
8. The Company which had its office in the same Towers
had entered into an agreement for annual maintenance and
house-keeping at Carlton Towers with the Carlton Towers
Owners Association. The agreement was entered into on
01-05-2009 and it was an annual maintenance contract. On
16-12-2009 M/s Shivaji Electricals was entrusted to rectify the
defects in compliance with the Electrical Inspector's report who
had found certain defects in electrification. The defects were
rectified by M/s Shivaji Electricals on 17-12-2009 and the same
was communicated to the Electrical Inspector, Bangalore East
Division under whose jurisdiction the building came.
9. After the said job being entrusted to M/s Shivaji
Electricals, the Carlton Towers Owners Association also
communicated to the Electrical Inspector that the defects have
been rectified by M/s Shivaji Electricals. This communication
was sent on 15-02-2010. In the interregnum the petitioner
travelled abroad i.e., to the United Kingdom on 31-01-2010 and
returned to India on 5-03-2010. A memo along with
immigration details is also placed on record which would clearly
depict that the petitioner was out of the country from 31-01-
2010 up to 05-03-2010.
10. The fire mishap occurred on 23-02-2010. Admittedly
the petitioner was not in the country at that point in time. A FIR
came to be registered in Crime No.69 of 2010 against 20
accused for offences punishable under Sections 338, 304(A) and
304 read with Section 34 of the IPC. A report was called for
from the Deputy Chief Electrical Inspector with regard to the
incident. The Deputy Chief Electrical Inspector submits his
report on 1-03-2010 opining that if electrical instruments had
been maintained in a sustainable condition when electrical
7
arcing occurred and paper, cloth pieces and other material
which are vulnerable to fire were not dumped into the cable duct
and also other precautions had been taken the fire could have
been avoided. This had led to the fire mishap. The report reads
as follows:
"III C¥ÀWÁvÀzÀ §UÉÎ C©ü¥ÁæAiÀÄ:
vÀ¤SÁ¢üPÁjUÀ¼ÀÄ ¸À°è¹gÀĪÀ ªÀgÀ¢ ¥ÀæPÁgÀ ¸ÀzÀj PÀlÖqÀzÀ°è ªÉÆzÀ®£Éà CAvÀ¹Û£À°è
PÁAiÀÄð¤ªÀð»¸ÀÄwÛgÀĪÀ ªÉÄ: mÉPÉÆß«ÄPï ¸ÁܪÀgÀPÉÌ «zÀÄåvï ¸ÀgÀ§gÁdÄ PÀ°à¹gÀĪÀ 4 C + 50
Sq.mm aluminium Armoured calbe, PÉç¯ï qÀPïÖ£À JAnæ ¥Á¬ÄAmï¤AzÀ
¸ÀĪÀiÁgÀÄ 1 jAzÀ 2 CrAiÀÄ CAvÀgÀzÀ°è PÉç¯ï C£ÀÄß J¼ÉAiÀÄĪÀ ¸ÀªÀÄAiÀÄzÀ°è Internal
conductor fracture ¤AzÀ CxÀªÁ conductor deterioration ¤AzÀ CxÀªÁ
abrasion ¤AzÀ QëÃt¹zÀÄÝ, PÁ®PÀæªÉÄÃt CzÀgÀ «zÀÄåvï PÁåj¬ÄAUï ±ÀQÛAiÀÄÄ PÀrªÉÄAiÀiÁV
«zÀÄåvï ¥ÀæªÀ»¸ÀÄwÛgÀĪÀ vÀAw ºÁUÀÆ ¥ÀPÀÌzÀ UËæAqÉqï ¯ÉÆúÀzÀ ¨sÁUÀPÉÌ (Cable Armour)
DQðAUï DV ¨ÉAQ GAmÁVzÀÄÝ, CzÉà ¸ÀAzÀ¨ÀsðzÀ°è PÉç¯ï qÀPïÖ £À°è ±ÉÃRgÀuÉAiÀiÁVzÀÝ
¥ÉÃ¥Àgï ¦Ã¸ï UÀ¼ÀÄ, §mÉÖ vÀÄAqÀÄUÀ¼ÀÄ, ºÁUÀÆ EvÀgÉ ¸ÀÄ®¨sÀªÁV ¨ÉAQAiÀiÁV DºÀÄwAiÀiÁUÀĪÀ
EvÀgÉ ªÀ¸ÀÄÛUÀ¼ÀÄ ¸ÉÃjPÉÆAqÀÄ, ¨ÉAQAiÀÄ wêÀðvÉAiÀÄ£ÀÄß ºÉaѹzÀÄÝ, F ¨ÉAQAiÀÄÄ EvÀgÉ
PÉç¯ïUÀ¼À E£ÀÄì¯ÉñÀ£ï UÀ¼À£ÀÄß ¸ÀÄnÖzÀÄÝ, EzÀjAzÀ CwAiÀiÁzÀ PÁ§ð£ï ºÉÆUÉAiÀÄÄ
GvÀàwAiÀiÁVzÀÄÝ, F PÁ§ð£ï ºÉÆUÉAiÀÄÄ PÉç¯ï ªÀÄÄSÁAvÀgÀ ºÉÆgÀUÉ ºÉÆÃUÀ®Ä
CªÀPÁ±À«®èzÉ, PÉç¯ï qÀPïÖ £À°è ±ÉÃRgÀuÉUÉÆArzÀÄÝ, ºÁUÀÆ F ºÉÆUÉAiÀÄ wêÀðvÉAiÀÄÄ
eÁ¹ÛAiÀiÁV PÉç¯ï qÀPïÖ ¨ÁV®ÄUÀ¼À£ÀÄß QvÀÄÛPÉÆAqÀÄ ºÉÆgÀUÉ §AzÀÄ, ºÉÆUÉAiÀÄÄ J¯Áè
ªÀĺÀrUÀ¼À®Æè «¹Ûj¹zÀÄÝ, «±ÉõÀªÁV 6 ªÀÄvÀÄÛ 7£Éà ªÀĺÀrAiÀÄ°è §ºÀ¼ÀµÀÄÖ vÀÄA©PÉÆArzÀÄÝ,
PÀlÖqÀzÀ°èzÀÝ d£ÀgÀÄ EzÀ£ÀÄß £ÉÆÃr UÁ§j¥ÀnÖgÀĪÀÅzÀjAzÀ F CªÀWÀqÀPÉÌ PÁgÀtªÁVgÀÄvÀÛzÉ.
¸ÀzÀj PÀlÖqÀzÀ ¤ªÁðºÀPÀgÀÄ / ªÀiÁ°ÃPÀgÀÄUÀ¼ÀÄ ¨ÉAQ CªÀWÀqÀ ¸ÀA¨sÀ«¸À®Ä
PÁgÀtªÁzÀ electrical Arcing GAmÁzÀ ¸ÀªÀÄAiÀÄzÀ°è «zÀÄåvï ¸ÀÄgÀPÁë G¥ÀPÀgÀtUÀ¼À£ÄÀ ß
¸ÀĹÜwAiÀÄ°è ElÄÖ PÁAiÀÄð¤ªÀð»¸ÀĪÀAvÉ £ÉÆÃrPÉÆArzÀÝgÉ ºÁUÀÆ PÉç¯ï qÀPïÖ C£ÀÄß
¸ÀéZÀÒªÁV ElÄÖPÉÆArzÀÄÝ, ¨ÉAQUÉ DºÀÄwAiÀiÁUÀĪÀAvÀ ¥ÉÃ¥Àgï ªÀÄvÀÄÛ §mÉÖ ¦Ã¸ïUÀ¼ÀÄ ªÀÄvÀÄÛ
EvÀgÉ ªÀ¸ÀÄÛUÀ¼ÀÄ C°è ±ÉÃRgÀuÉAiÀiÁUÀzÀAvÉ £ÉÆÃrPÉÆArzÀÝgÉ ªÀÄvÀÄÛ ªÀÄÄ£ÉßZÀÑjPÉ PÀæªÄÀ
vÉUÉzÀÄPÉÆAqÀÄ J¯Áè vÀÄvÀÄð ¤UÀðªÀÄ£ÀzÀ ¨ÁV®ÄUÀ¼À£ÄÀ ß vÉgÉ¢lÄÖ ºÁUÀÆ PÁjqÁgï UÀ¼À°è
¸Áé¨sÁ«PÀ UÁ½ ¨É¼ÀPÀÄUÀ½UÉ ªÀåªÀ¸ÉÜ ªÀiÁrzÀÝ°è F CªÀWÀqÀªÀ£ÀÄß vÀ¦à¸À§ºÀÄzÉAzÀÄ
C©ü¥ÁæAiÀÄ¥ÀqÀ¯ÁVzÉ."
After all the aforesaid events, charge sheet is also filed by
the Police in which the petitioner is arrayed as accused No.18
and an additional charge sheet is filed against one Sri Suresh
Kumar S.K., Proprietor of the Company arraigning him as
accused No.21.
8
11. It is not in dispute that among the accused, one of
them had approached this Court i.e., accused No.3 one Mr. T.G.
Mandanna in Criminal Petition No.769 of 2011 under Section
482 of the Cr.P.C. This Court by its order dated 21-02-2011
holding that the petitioner therein was not the owner of any of
the units in the building, allowed the petition by observing as
follows:
"3. Learned Counsel for the petitioner submitted that though
there are 20 persons named in the charge sheet, the petitioner herein
was not the owner of any one of the apartments, but on the other
hand, he is the co-opted treasurer of the Carlton Towers Owner's
Association. He further submits that nothing is stated in the charge
sheet filed against the petitioner that he is the owner of the
apartments of the said building and is responsible for the mishap that
took place and as such, the question of the petitioner being proceeded
with does not arise. Referring to the contents of the charge sheet,
submission made is that reason for the fire said to have been not
taking proper precautions by the building owners and as such, this
petitioner is nothing to do with the maintenance of the building as he
was only the treasurer who is looking after the account matters.
4. Having thus heard the petitioner's Counsel and after going
through the charge sheet material, though there are 20 accused
persons named in the charge sheet, except this petitioner, others
according to the petitioner's Counsel are the owners of the building.
Therefore, having regard to the nature of the incident that took place
on the aforementioned date and the charge sheet also putting the
blame entirely on the building owners being negligent in taking
necessary precautions to prevent the occurrence of fire in the building,
in my view, continuation of proceedings as far as this petitioner is
concerned is not warranted as there are no specific mention in the
charge sheet against this petitioner attracting the aforesaid offence.
5. For the above said reasons, petition is allowed and
proceedings against this petitioner in S.C.No.1164/10 pending on the
file of the Presiding Officer, FTC-XV (Sessions), Bangalore, stands
quashed. But, however as regards the other accused persons are
concerned, i.e., accused Nos.1, 2 & 4 to 20, the trial court shall
proceed with the matter in accordance with law."
9
The subject petition has to be now considered on the
grounds that are urged by the petitioner on the facts that are
narrated hereinabove.
12. It is not in dispute that the petitioner is one of the
Directors of the Company and the Company is not arrayed as an
accused. The Company not being arrayed as one of the accused
and only the Director of the Company being arrayed, the
complaint cannot be maintainable and the proceedings cannot
be continued in the light of the law laid down by the Three
Judge Bench of the Apex Court in the case of ANEETA HADA v.
GODFATHER TRAVELS AND TOURS PRIVATE LIMITED -
(2012) 5 SCC 661. Therefore, the complaint against the
petitioner who is the Director of the Company without arraigning
the Company as a party was not even maintainable.
13. The allegations against the petitioner in the charge
sheet are for offences punishable under Sections 304 and 338 of
the IPC. This Court in identical circumstances in the case of
MELVIN KUMAR AND OTHERS v. K.S. HARISHA AND
ANOTHER (Crl.P.No.2619 of 2014 decided on 31st January
2019) which concerned offences punishable under Section 304A
read with Section 34 of the IPC against several accused who
were teachers of Mother Theresa School who had taken the
children studying 3rd, 4th and 5th standards for a school picnic at
Residency Holiday Resort and the students got drowned in the
swimming pool, a complaint was registered against the owner or
the management, the Head Master as well as the Manager of
Residency Holiday Resort. The teachers of the school who had
been arrayed as accused had approached this Court in Criminal
Petition No.2619 of 2014 for offences punishable under Section
304-A of IPC. This Court after considering the purport of Section
304-A of IPC which deals with causing death by negligence has
held as follows:
"12. Viewed from another angle, in order to fasten
criminal liability for the offence under section 304A of Indian
Penal Code, the prosecution is required to prove that the act of the
accused was the proximate and immediate cause of death and
that the death was caused without the intervention of another
person's negligence. As held in SUSHIL ANSAL's case, supra, it
must have been the causa causans; and not mere causa sine qua
non.
10
14. In Kurban Hussein Mohamedalli Bangawalla's case,
referred to supra, the allegation against the appellant therein
was that he allowed the burners to be used in the same room in which
varnish and turpentine were stored, which were alleged to be negligent
act and fire resulted because of the proximity of the burners. But the
said contention was not found favour with the Hon'ble Supreme Court
in view of the above proposition of law.
.... .... .... ....
17. The law casts a higher degree of care on the
occupiers of the building or premises wherein visitors or the
licensees are allowed to use the facilities provided therein. What is
the degree of care expected from the occupiers of a Cinema
building came up for consideration of the Hon'ble Supreme Court in
the case of SUSHIL ANSAL, referred to above. In paragraph
No.95 thereof, it is observed thus:
"What is the degree of care expected from the occupier
of a cinema is the next question to which we must advert at
this stage. Two fundamental principles must be noticed at the
threshold while answering that question. The first is that the
degree and nature of care expected of an occupier depends upon
the fact situation in which the duty to care arises. The second and
equally important principle at common law is that the degree of care in
a given fact situation would depend upon whether the person to whom
the duty is owed is a contractual visitor, invitee, licensee or trespasser.
Of these the occupier owes the highest degree of care to a
contractual visitor viz., a person who pays consideration to be
present on the premises for some purpose; whatever that purpose be.
At common law there is an implied term in the contract between the
occupier and the visitor that the occupier's premises shall be
reasonably safe. The occupier's duty must be held to have been
breached if any injury is caused to a contractual visitor by any
defect in the premises apart from a latent defect." "
On the aforesaid reasoning, the criminal petition was
allowed and the proceedings against those teachers were
quashed.
14. In an yet another circumstance, this Court in the case
of M.SRINIVAS v. STATE - (Criminal Petition No.9124 of
2016 decided on 15th February 2019) again considering offences
punishable under Section 304A of IPC in a case where the
allegations against the petitioner therein who was a Supervisor-
11
Engineer of M/s Malu Constructions (India) Private Limited
which was executing works in terms of a work order issued by
the Bangalore Water Supply and Sewerage Board pertaining to
laying down of water pipes had negligently left a heap of mud
on the road without taking precautionary measures leading to
accident which resulted in death of a rider of a motorcycle and
the allegation against the said Supervisor Engineer was for
offences punishable under Section 304-A of IPC inter alia. This
Court allowed the criminal petition holding as follows:
"11. It is now well settled that in order to constitute an
offence under section 304A of Indian Penal Code, the negligence
imputed to the accused must be gross in nature. Though the term
"gross" has not been used in section 304A of Indian Penal Code, in
JACOB MATHEW vs. STATE OF PUNJAB & Others in (2005) 6 SCC 1,
the Hon'ble Supreme Court while examining a case of criminal medical
negligence by a Doctor under section 304A of Indian Penal Code, has
reviewed the case law on the subject and in para 48 thereof, has held
as under:
"(5) The jurisprudential concept of negligence differs in civil and
criminal law. What may be negligence in civil law may not necessarily
be negligence in criminal law. For negligence to amount to an offence,
the element of mens rea must be shown to exist. For an act to
amount to criminal negligence, the degree of negligence should be
much higher i.e., gross or of a very high degree. Negligence which is
neither gross nor of a higher degree may provide a ground for action
in civil law but cannot form the basis for prosecution.
(6) The word 'gross' has not been used in Section 304-A
IPC, yet it is settled that in criminal law negligence or recklessness, to
be so held, must be of such a high degree as to be 'gross'. The
expression 'rash or negligent act' as occurring in Section 304-A IPC
has to be read as qualified by the word 'grossly'."
12. xx xx xx xx
13. It is now well settled that, in order to fasten criminal
liability for the offence under section 304A of Indian Penal Code, the
prosecution is required to establish that the act of the accused No.1
was the proximate and immediate cause of death and that the death
was caused without the intervention of another person's negligence.
As held in SUSHIL ANSAL's case, supra, it must have been the causa
causans; and not mere causa sine qua non.
14. In the instant case, petitioner herein is implicated in the
alleged offence on the allegation that he was responsible for causing
12
the accident by leaving heap of mud on the accident site. In Kurban
Hussein Mohamedalli Rangawalla, supra, the Hon'ble Supreme Court
dealt with an identical situation. In the said case, the allegation
against the appellant therein was that he allowed the burners to be
used in the same room in which varnish and turpentine were stored,
which were alleged to be negligent act and fire resulted because of the
proximity of the burners. But the said contention was negatived by
the Hon'ble Supreme Court by endorsing the view taken in EMPEROR
vs. OMKAR RAMPRATAP in (1902) 4 Bombay LR 679, the Hon'ble
Supreme Court has observed that,
"This view has been generally followed by High Courts in India
and is in our opinion the right view to take of the meaning of S.304-A.
It is not necessary to refer to other decisions, for as we have already
said this view has been generally accepted. Therefore, the mere fact
that the fire would not have taken place if the appellant had not
allowed burners to be put in the same room in which turpentine and
varnish were stored, would not be enough to make him liable under
S.304-A, for the fire would not have taken place, with the result that
seven persons were burnt to death, without the negligence of Hatim.
The death in this case was, therefore, in our opinion not directly the
result of a rash or negligent act on the part of the appellant and was
not the proximate and efficient cause without the intervention of
another's negligence. The appellant must, therefore, be acquitted of
the offence under S.304-A."
15. In the instant case also, the proposition laid down in the
above decision, in my view, is squarely applicable to the facts of this
case. A plain reading of the charge-sheet discloses that the material
allegations constituting negligence are directed only against accused
No.1. The material on record indicates that the deceased died on
account of the rash and negligent act of accused No.1 in hitting the
motorcycle driven by the accused. Therefore, the act of accused No.1
was the proximate and immediate cause of death of the deceased.
The act of the petitioner/accused No.2 in leaving heap of mud on the
road may amount to an offence under section 134 of Indian Motor
Vehicles Act, but the same does not amount to an act of negligence
within the meaning of section 304A of Indian Penal Code. Thus, on
consideration of all the above facts and circumstances of the case, in
the light of the law applicable to the facts of this case, I am of the
clear opinion, that petitioner/accused No.2 cannot be proceeded for
negligence in causing the death of the deceased within the meaning of
Sections 304A and 279 of Indian Penal Code. Consequently, the
prosecution of the petitioner being illegal, the same amounts to abuse
of process of Court.
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As a result, the petition is allowed. The proceedings initiated
against the petitioner in C.C.No.10878/2016 pending on the file of
Metropolitan Magistrate Traffic Court-III, Bengaluru is hereby
quashed."
Therefore, the offence of Section 304A of IPC alleged
against the petitioner who is the Director of the Company and
was not present at the place of incident and the negligence
attributable to accused No.21, the petitioner cannot be
prosecuted or trial cannot be continued against the petitioner for
the said offence of Section 304A of IPC. Section 338 of IPC
which is the other offence alleged against the petitioner deals
with causing grievous hurt by act endangering life or personal
safety of others and reads 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 endanger human
life, or the personal safety of others, shall be punished with impris-
onment 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."
The section makes it clear that whoever causes grievous
hurt to any person by doing any act so rashly or negligently as
to endanger human life shall be punishable in terms of law.
There is no act committed by the petitioner which attracts
Section 338 of the IPC.
15. In the light of the judgment of the Apex Court in the
case of ANEETA HADA and the law laid down by this Court in
the afore-extracted judgments, the petitioner cannot be held to
be responsible for the act of other accused. Therefore,
continuance of the proceedings against the petitioner would
result in miscarriage of justice and be an abuse of the process of
law."
This order has been subsequently followed by this Court in Criminal
Petition No.2376 of 2022 decided on 07-04-2022 in the case of
SHRI SHYAM KEDARE V. STATE. Further, in Criminal Petition
14
No.7687 of 2022 decided on 22-08-2022 in the case of SMT.
MALTI HIRANI V. STATE OF KARNATAKA and also in Criminal
Petition No.11620 of 2022 decided on 29-11-2022 in the case of
KEMPEGOWDA V @ KIRAN V. STATE OF KARNATAKA.
8. In all the aforesaid orders, the proceedings qua the
respective accused as on today, stood obliterated. Whose
proceedings are pending in the entire episode of crime is the
petitioner/accused No.1 herein, so therefore, except the petitioner,
every other person is now free of the rigmarole of proceedings. The
allegation against the petitioner as was the allegation against every
other accused is for offence punishable under Sections 304 and 338
of the IPC. The primary offence being offence under Section 304 of
the IPC, it reads as follows:
"304. Punishment for culpable homicide not
amounting to murder.--Whoever commits culpable homicide
not amounting to murder, shall be punished with
339
[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
15
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 of the IPC deals with culpable homicide not amounting
to murder. The ingredients of Section 304 of the IPC are found in
Section 301 of the IPC. It reads as follows:
"301. Culpable homicide by causing death of
person other than person whose death was intended.--If
a person, by doing anything which he intends or knows to be
likely to cause death, commits culpable homicide by causing the
death of any person, whose death he neither intends nor knows
himself to be likely to cause, the culpable homicide committed
by the offender is of the description of which it would have been
if he had caused the death of the person whose death he
intended or knew himself to be likely to cause."
If a person by doing anything which he intends or knows that it is
likely to cause death, commits culpable homicide, by causing the
death of any person, whose death he neither intends nor knows
himself, would become culpable homicide. Therefore, essential
ingredient of Section 304 of the IPC is mens rea. It becomes
apposite to refer to the judgment of the Apex Court in the case of
16
ANBAZHAGAN V. STATE1, wherein the Apex Court holds as
follows:
"66. Few important principles of law discernible from
the aforesaid discussion may be summed up thus:--
(1) When the court is confronted with the question,
what offence the accused could be said to have committed,
the true test is to find out the intention or knowledge of the
accused in doing the act. If the intention or knowledge was
such as is described in Clauses (1) to (4) of Section 300 of
the IPC, the act will be murder even though only a single
injury was caused. To illustrate:'A' is bound hand and foot.
'B' comes and placing his revolver against the head of 'A',
shoots 'A' in his head killing him instantaneously. Here, there
will be no difficulty in holding that the intention of 'B' in
shooting 'A' was to kill him, though only single injury was
caused. The case would, therefore, be of murder falling
within Clause (1) of Section 300 of the IPC. Taking another
instance, 'B' sneaks into the bed room of his enemy 'A' while
the latter is asleep on his bed. Taking aim at the left chest of
'A', 'B' forcibly plunges a sword in the left chest of 'A' and
runs away. 'A' dies shortly thereafter. The injury to 'A' was
found to be sufficient in ordinary course of nature to cause
death. There may be no difficulty in holding that 'B'
intentionally inflicted the particular injury found to be caused
and that the said injury was objectively sufficient in the
ordinary course of nature to cause death. This would bring
the act of 'B' within Clause (3) of Section 300 of the IPC and
render him guilty of the offence of murder although only
single injury was caused.
(2) Even when the intention or knowledge of the
accused may fall within Clauses (1) to (4) of Section 300 of
the IPC, the act of the accused which would otherwise be
murder, will be taken out of the purview of murder, if the
accused's case attracts any one of the five exceptions
1
2023 SCC OnLine SC 857
17
enumerated in that section. In the event of the case falling
within any of those exceptions, the offence would be culpable
homicide not amounting to murder, falling within Part 1 of
Section 304 of the IPC, if the case of the accused is such as
to fall within Clauses (1) to (3) of Section 300 of the IPC. It
would be offence under Part II of Section 304 if the case is
such as to fall within Clause (4) of Section 300 of the IPC.
Again, the intention or knowledge of the accused may be
such that only 2nd or 3rd part of Section 299 of the IPC, may
be attracted but not any of the clauses of Section 300 of
the IPC. In that situation also, the offence would be culpable
homicide not amounting to murder under Section 304 of
the IPC. It would be an offence under Part I of that section, if
the case fall within 2nd part of Section 299, while it would be
an offence under Part II of Section 304 if the case fall within
3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused
person falls within the first two clauses of cases of culpable
homicide as described in Section 299 of the IPC it is
punishable under the first part of Section 304. If, however, it
falls within the third clause, it is punishable under the second
part of Section 304. In effect, therefore, the first part of this
section would apply when there is 'guilty intention,' whereas
the second part would apply when there is no such intention,
but there is 'guilty knowledge'.
(4) Even if single injury is inflicted, if that particular
injury was intended, and objectively that injury was sufficient
in the ordinary course of nature to cause death, the
requirements of Clause 3rdly to Section 300 of the IPC, are
fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following
classes of cases : (i) when the case falls under one or the
other of the clauses of Section 300, but it is covered by one
of the exceptions to that Section, (ii) when the injury caused
is not of the higher degree of likelihood which is covered by
the expression 'sufficient in the ordinary course of nature to
cause death' but is of a lower degree of likelihood which is
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generally spoken of as an injury 'likely to cause death' and
the case does not fall under Clause (2) of Section 300 of
the IPC, (iii) when the act is done with the knowledge that
death is likely to ensue but without intention to cause death
or an injury likely to cause death.
To put it more succinctly, the difference between the
two parts of Section 304 of the IPC is that under the first
part, the crime of murder is first established and the accused
is then given the benefit of one of the exceptions to
Section 300 of the IPC, while under the second part, the
crime of murder is never established at all. Therefore, for the
purpose of holding an accused guilty of the offence
punishable under the second part of Section 304 of the IPC,
the accused need not bring his case within one of the
exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is
distinguished from more 'possibly'. When chances of
happening are even or greater than its not happening, we
may say that the thing will 'probably happen'. In reaching
the conclusion, the court has to place itself in the situation of
the accused and then judge whether the accused had the
knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section
299 of the IPC) and murder (Section 300 of the IPC) has
always to be carefully borne in mind while dealing with a
charge under Section 302 of the IPC. Under the category of
unlawful homicides, both, the cases of culpable homicide
amounting to murder and those not amounting to murder
would fall. Culpable homicide is not murder when the case is
brought within the five exceptions to Section 300 of the IPC.
But, even though none of the said five exceptions are
pleaded or prima facie established on the evidence on
record, the prosecution must still be required under the law
to bring the case under any of the four clauses of
Section 300 of the IPC to sustain the charge of murder. If
the prosecution fails to discharge this onus in establishing
any one of the four clauses of Section 300 of the IPC,
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namely, 1stly to 4thly, the charge of murder would not be
made out and the case may be one of culpable homicide not
amounting to murder as described under Section 299 of
the IPC.
(8) The court must address itself to the question
of mens rea. If Clause thirdly of Section 300 is to be applied,
the assailant must intend the particular injury inflicted on the
deceased. This ingredient could rarely be proved by direct
evidence. Inevitably, it is a matter of inference to be drawn
from the proved circumstances of the case. The court must
necessarily have regard to the nature of the weapon used,
part of the body injured, extent of the injury, degree of force
used in causing the injury, the manner of attack, the
circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that
makes a culpable homicide a murder. The intention to cause
injury or injuries sufficient in the ordinary cause of nature to
cause death also makes a culpable homicide a murder if
death has actually been caused and intention to cause such
injury or injuries is to be inferred from the act or acts
resulting in the injury or injuries.
(10) When single injury inflicted by the accused
results in the death of the victim, no inference, as a general
principle, can be drawn that the accused did not have the
intention to cause the death or that particular injury which
resulted in the death of the victim. Whether an accused had
the required guilty intention or not, is a question of fact
which has to be determined on the facts of each case.
(11) Where the prosecution proves that the accused
had the intention to cause death of any person or to cause
bodily injury to him and the intended injury is sufficient in
the ordinary course of nature to cause death, then, even if
he inflicts a single injury which results in the death of the
victim, the offence squarely falls under Clause thirdly of
Section 300 of the IPC unless one of the exceptions applies.
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(12) In determining the question, whether an accused
had guilty intention or guilty knowledge in a case where only
a single injury is inflicted by him and that injury is sufficient
in the ordinary course of nature to cause death, the fact that
the act is done without premeditation in a sudden fight or
quarrel, or that the circumstances justify that the injury was
accidental or unintentional, or that he only intended a simple
injury, would lead to the inference of guilty knowledge, and
the offence would be one under Section 304 Part II of
the IPC."
The Apex Court considers what should be the ingredient of Section
304 of the IPC and holds that Section 304 of the IPC would become
applicable only when the accused has acted with guilty intention or
as observed hereinabove, the necessary ingredient is mens rea.
Therefore, the petitioner can neither be alleged of offence of
causing death by rash and negligent act nor can be alleged of
offence made penal under Section 304 of the IPC.
9. If the facts obtaining in the case at hand are considered on
the touchstone of the ingredients of Section 301, it can by no
stretch of imagination become an offence under Section 304 of the
IPC. It is on this score, the co-ordinate bench of this Court, as also
this Court in the judgments noted to supra, have obliterated crimes
21
against all the accused except the petitioner herein, holding that
there was no mens rea on the part of those accused and what has
happened in the case at hand was a mishap. In that light,
permitting further proceedings against this petitioner would run foul
of the very provision and its interpretation by this Court in the
aforesaid judgments and results in miscarriage of justice.
10. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(i) Proceedings in S.C.No.1164 of 2010 pending before the 69th Additional City Civil and Sessions Judge, Bengaluru arising out of Crime No.69 of 2010 stand quashed.
Consequently, I.A.No.1 of 2023 also stands disposed.
Sd/-
(M. NAGAPRASANNA) JUDGE Bkp/CT:MJ