Madras High Court
Rajesh vs State Rep. By
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.No.10930 of 2019
& Crl.M.P.No.5598 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 26.09.2022 Pronounced on: 30.09.2022
CORAM:
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
Crl.O.P.No.10930 of 2019
& Crl.M.P.No.5598 of 2019
Rajesh, ... Petitioner/Accused No.3
-vs-
1. State Rep. by,
The Inspector of Police,
Erode South Police Station,
Erode.
2. T.Rikku, ... Respondents
PRAYER: Criminal Original Petition is filed under Section 482 of Cr.P.C., to call
for the records in C.C.No.197 of 2018 on the file of the Judicial Magistrate No.III,
Erode and quash the same against the petitioner herein.
For Petitioner : Dr.S.S.Swaminathan
For R1 : Mr.N.S.Suganthan,
Government Advocate (Crl.Side)
For R2 : No appearance
____________
Page No.1/10
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.10930 of 2019
& Crl.M.P.No.5598 of 2019
ORDER
This Criminal Original Petition is filed by the petitioner/3rd accused to quash the Criminal complaint in C.C.No.197 of 2018, on the file of the Learned Judicial Magistrate-III, Erode.
2. The facts leading to filing of charge sheet against the petitioner for offences under Section 304(A) and 288 of I.P.C arose due to a wall collapsed and fell on a worker, on 11.09.2018, at about 23.30 hours at P&C Tower, No.140, Perundurai Road, Erode. The said accident occurred when the labourers were working in one of the rooms of the building, removing bricks the wall collapsed and caused death of Pankaj Palai.
3. The respondent police registered a case in Crime No.556/2018 dated 12.09.2018 against Building Supervisor A1 (Prakash), Company Supervisor A2 (Charles Victor) and owner of the building A3(Rajesh). ____________ Page No.2/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10930 of 2019 & Crl.M.P.No.5598 of 2019
4. The petitioner, who is the owner of the building seeks quashment of the complaint alleging that having entrusted the supervisory responsibility to the Company Supervisor and the Building Supervisor, the petitioner cannot be held vicariously liable for the incident which occurred in his absence. Due to sudden collapse of the wall, while cleaning the floor it has fallen on the deceased Pankaj Palai. In the Final Report, it is stated that no proper precaution and safety measures were taken by the accused persons to prevent the accident. However, while the supervisory responsibility been entrusted to the contractor or any other individual, for the purpose of supervision, only such person can be held criminally liable. Even according to the complaint, omission to provide safety gears is the breach of responsibility of Building Supervisor Prakash (A1) and the Company Supervisor Charles Victor (A2). While so, the owner cannot be expected to be omni present every where. He has been prosecuted for the accident occurred in his building without the knowledge or contribution. The ingredient to attract offences under Sections 304(A) and 288 of I.P.C., not made out from the complaint and documents relied. The petitioner/Rajesh, the owner of the building is no way connected with the negligence alleged in the complaint. Hence, complaint to be ____________ Page No.3/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10930 of 2019 & Crl.M.P.No.5598 of 2019 quashed.
5. In support of his submission, the Learned Counsel for the petitioner has relied upon the following judgments:-
(i). Sasikumari and another -vs- The State, Inspector of Police, J5 Shastri Nagar Police Station, reported in MANU/TN/7612/2018.
(ii). Dr.Jeppiar and another -vs- State of Tamil Nadu, Rep. by its Inspector of Police and Bija Mahali reported in MANU/TN/2257/2012.
(iii). R.P.P. Selvam -vs- State Rep. Sub Inspector of Police reported in http://indiankanoon.org/doc/185049010.
(iv). Ganesh -vs-. The State by, Inspector of Police, Vadmadurai Police Station reported in MANU/TN/7164/2019.
(v). Gopi and others -vs- The State Represented by, the Inspector of Police, and another reported in MANU/TN/4032/2020.
(vi). Dr.Suresh and another -vs- The State Rep. by its, The Inspector of Police, E-1, Mylapore Police Station, Law and other reported in http://indiankanoon.org/doc/160385678.
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6. Per contra, the Learned Government Advocate (Crl.Side) for the respondent/State submitted that admittedly the accident has occurred in the premises owned by the petitioner herein. Due to negligence, death of a worker [Pankaj Palai] occurred. Investigation indicates that the Company Supervisor as well as Building Supervisor have not provided safety gears to the workers. This has led to death of a worker on whom the neglected wall collapsed. Therefore, in the absence of formal contractual agreement between the site owner and the building contractor, the owner of the building is vicariously liable for the accident. Therefore, inclusion of the petitioner as one of the accused for offences under Section 304(A) and 288 of I.P.C., is legally sustainable.
7. In support of his submission, the judgment of Karnataka High Court rendered in Sri Vishwas -vs- The State of Karnataka, Rep. by its Station House Officer, and another reported in MANU/KA/2371/2022 and the judgment of the Hon'ble Supreme Court in Ambalal D.Bhatt -vs- The State of Gujarat reported in (1972) 3 SCC 525 were relied.
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8. Heard the Learned Counsel for the petitioner and the Learned Government Advocate for the 1st respondent and there was no representation for the 2nd respondent. Records perused.
9. Admittedly, the petitioner is the owner of the building and deceased Pankaj Palai was a worker engaged in construction work of the building. Prakash Meshtri (A1) is the Building Contractor and Supervisor. Charles Victor (A2) is the Company Supervisor employed and engage to supervise the affairs of the Company including, on going constructions.
10. While dealing with Section 304 (A) of I.P.C., the Hon'ble Supreme Court in Ambalal D. Bhatt case cited supra, has held as below:-
“In a prosecution for an offence under Section 304-A IPC, the court has to examine whether the alleged act of the accused is the direct result of a rash and negligent act and that act was the proximate and efficient cause of the death without intervention of other's negligence. The mere fact that an accused contravenes certain rules or regulations in doing ____________ Page No.6/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10930 of 2019 & Crl.M.P.No.5598 of 2019 of an act does not establish an offence under Section 304-A IPC.
The act causing deaths must be the causa causans; it is not enough that it may have been the causa sine qua non. The court has to determine whether the act of the accused is the causa causans or has there been a cause intervening which has broken the chain of causation so as to make the act of the accused, though a negligent one, not the immediate cause or whether it amounts to an act of gross negligence or recklessly negligent conduct. The fact that twelve lives have been lost, however shocking and regrettable it may be, ought not to allow the mind boggle while appreciating the evidence.”
11. At the time of accident, the petitioner neither present nor the deceased worker was under the direct control and supervision of the petitioner. The Hon'ble Supreme Court in Ambalal D. Bhatt case cited supra, held that, “The cause of death should be 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.” Following the above said principle, this Court hold that the complaint against the owner of the building or the person who is remotely responsible for the ____________ Page No.7/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10930 of 2019 & Crl.M.P.No.5598 of 2019 Company but not responsible for the accident occurred in the Company cannot be held vicariously liable following the said dictum, this Court holds that the ingredient for offence under Section 304(A) of I.P.C is not made out against the petitioner.
12. For offence under Section 288 of I.P.C., it is suffice to refer the judgment of this Court in Gopi and others -vs- State Represented by, The Inspector of Police, Mangalam Police Station and another reported in MANU/TN/4032/2020, wherein it is held as follows:-
“The first accused engaged labourers. While being so, on 09.05.2017, when the second respondent was doing renovation work at the height of 18 feet, unfortunately he fell down and sustained injuries on his spinal cord. Immediately he was taken to hospital and given treatment. In order to attract the charge for the offences punishable under Section 288 IPC, the accused should have knowingly or negligently omitted to take necessary steps to avoid probable danger from the fall.” ____________ Page No.8/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10930 of 2019 & Crl.M.P.No.5598 of 2019
13. In case in hand, the responsibility of construction was entrusted to Prakash Meshtri (A1) and to supervise the activity of the contractor was entrusted to Charles Victor (A2) being the in-house Managing Director. Having so delegated the power, for the alleged offence under Section 288 of I.P.C or for that matter under Section 304(A) of I.P.C, the petitioner cannot be held responsible.
14. Accordingly, this Criminal Original Petition is allowed. The complaint in C.C.No.197 of 2018 on the file of the Judicial Magistrate No.III, Erode is set aside. Consequently, connected Miscellaneous Petition is closed.
30.09.2022
Index :Yes.
Internet :Yes.
Speaking order/Non-speaking order
bsm
To,
1. The Learned Judicial Magistrate No.III, Erode.
2. The Inspector of Police, Erode South Police Station, Erode.
3. The Public Prosecutor, High Court, Madras.
____________ Page No.9/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10930 of 2019 & Crl.M.P.No.5598 of 2019 Dr. G.JAYACHANDRAN. J, bsm Pre-delivery order made in Crl.O.P.No.10930 of 2019 & Crl.M.P.No.5598 of 2019 30.09.2022 ____________ Page No.10/10 https://www.mhc.tn.gov.in/judis