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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Ashok G Nijagannavar, J.
K.C. Nandish, B Arch - Appellant
Versus
State Of Karnataka - Respondent
Criminal Petition No. 293 of 2014, 688 of 2014
Decided On : 23-10-2020
Negligence - Criminal Liability - IPC Sections 338 and 304 (ii) r/w Section 34 - [Architect and Owner's Liability] - [IPC Sections 338, 304 (ii) r/w Section 34] - The court quashed the FIR against the accused Architect and Owner, holding that they cannot be held liable for the accidental death and injury caused to the laborers as the excavation work was not done in their presence. The court emphasized that there must be a direct nexus between the negligence and the consequences of death or injury to hold the accused liable under the mentioned sections of the IPC. The court also highlighted the absence of specific allegations about the direct involvement of the accused, leading to the decision to quash the FIR.
Fact of the Case:
The accused, an Architect and Owner, filed petitions to quash the FIR registered against them for offenses under IPC Sections 338 and 304 (ii) r/w Section 34, relating to an accidental death and injury of laborers during construction work.
Finding of the Court:
The court found that the accused were not present at the workplace when the accident occurred and were not under direct control or supervision of the laborers. It held that the negligence leading to the accident could be attributed to the contractor, not the accused. The court emphasized the absence of specific allegations about the direct involvement of the accused and quashed the FIR against them.
Issues: The main issue was whether the accused, as Architect and Owner, could be held criminally liable for the accidental death and injury of laborers during construction work.
Ratio Decidendi: The court emphasized the need for a direct nexus between the negligence and the consequences of death or injury to hold the accused liable under the mentioned sections of the IPC. It also highlighted the absence of specific allegations about the direct involvement of the accused, leading to the decision to quash the FIR.
Final Decision: The court allowed the Criminal Petitions and quashed the FIR in Crime No.10/2014 of Kadugondanahalli Police Station, on the file of XI Additional Chief Metropolitan Magistrate, Bengaluru.
JUDGMENT
Ashok G. Nijagannavar, J. - Criminal Petition No.293/2014 is filed by accused No.3 and Criminal Petition No.688/2014 is filed by accused No.4 for quashing/setting aside the FIR in Crime No.10/2014 of Kadugondanahalli Police Station, on the file of XI Additional Chief Metropolitan Magistrate, Bengaluru, for the offences punishable under Sections 338 and 304 (ii) r/w Section 34 of IPC.
2. These two petitions emerges out of the complaint filed by one Asimray @ Ashim Roy (respondent No.2). The complaint allegations are, that on 07.01.2014 between 10.00 A.M. to 4.00 P.M., the complainant and other labourers were engaged in construction work. Consequent to the soil getting loose, some portion was collapsed resulting in the death of one of the labourer by name Bharath and injury to another labourer Birbal. In connection with the said accidental death, the police have registered the case for the offence punishable under Sections 338 and 304 (ii) r/w Section 34 of IPC against these two petitioners and few others. These two petitioners are arrayed as accused Nos.3 and 4. They were arrested and remanded to judicial custody; thereafter, they were released on bail.
3. Heard learned Senior Counsels for the petitioners, learned High Court Government Pleader and perused the records.
4. Learned Senior Counsel representing the petitioners accused Nos.3 and 4 would contend that on the date of the alleged incident, both these petitioners were not present at the spot. In order to evidence the liability of these petitioners for the offences punishable under Sections 338 and 304 (ii) r/w Section 34 of IPC, there must be a direct nexus between the negligence on the part of the person sought to be prosecuted and the consequences namely death or injury and in the absence of such nexus, the prosecution is bound to fail ultimately.
5. In the instant case, what is attributed to these petitioners are that they are responsible for the said accident at the spot, namely the collapse of soil which resulted in the death of a person. But, these petitioners have not played active role by being present there. The omission which is attributed in the complaint and which are attributed to the petitioners / accused in the eyes of law does not constitute offence under Sections 338 and 304 (ii) IPC. Consequently, the registration of the crime, submission of First Information Report against these petitioners and the investigation in pursuance of the said FIR is bad in law. The FIR deserves to be quashed.
6. The allegations made in the complaint do not remotely indicate any rash and negligent act on the part of these petitioners. In the absence of a dishonest intention, the act attributed to the person or persons as defined under Section 299 IPC would constitute which is made thinner under Section 304 (ii) IPC. The registration of the First Information Report is improper and opposed to law, as such, the same is liable to be quashed as against these petitioners. In support of the said contention, the learned counsel for the petitioners has relied on the following decisions:
i. In the case of Ambalal D. Bhatt vs. State of Gujarat, (1972) AIR SC 1150 ;
ii. In the case of Gousemohiddin vs State of Karnataka, (2003) ILR(Kar) 4841 ;
iii. In the case of M.Srikanth vs. State of Telangana and another, (2019) AIR SC 5363 ;
iv. In the case of Nitinchandra Somnath Raval vs. State of Gujarat and others, (2019) 14 SCC 676 .
7. Per contra, the learned High Court Government Pleader representing the State submitted that even though the petitioners being the Architect and Owner of the site had entrusted the job of excavation work to the contractor, they should have taken precautionary measures to prevent any possible landslide or collapse of mud / soil. These petitioners should have warned the contractor to supply proper safety equipments. The petitioners being the Architect and land Owner should have given proper instructions. Having failed in their duty, they are vicariously liab
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