CAV ORDER

The petitioners/accused 1, 3 to 7 are before this Court calling in question proceedings in C.C.No.3071 of 2024 pending before the II Additional Chief Judicial Magistrate, Bengaluru Rural District arising out of a crime in Crime No.74 of 2024 registered for offences punishable under Sections 149 and 304 of the IPC.

2. Heard Sri Sandesh J.Chouta, learned senior counsel appearing for the petitioners and Sri P.Thejesh, learned High Court Government Pleader appearing for respondent No.1.

3. Facts, in brief, germane are as follows:-

The 2nd respondent is the complainant. The petitioners are the Members of Prestige Lake Side Habitat Home Owners Association (‘the Association’ for short), who are voted by the owners of the apartment complex, which manages an apartment complex at Gunjur, Varthur, Bengaluru. It is the case of the prosecution that on 28-12-2023 the daughter of the 2nd respondent slips into the swimming pool in the apartment complex and dies by drowning. On 8-02-2024, a complaint comes to be registered against the President and office bearers of the Association. The police conduct investigation and file a charge sheet against these petitioners and the builder of the apartment complex in C.C.No.3071 of 2024. The concerned Court takes cognizance of the offence and issues summons. It is then the petitioners are before this Court calling in question the entire proceedings in the criminal case.

4. A coordinate Bench of this Court in a companion petition i.e., Writ Petition No.8996 of 2024 has stayed further proceedings against the builder on the ground that the builder has handed over the apartment complex to the possession of the Association. The stay is granted on that score and the same is subsisting in the said writ petition is the submission of the learned senior counsel for the petitioners.

5. The learned senior counsel would contend that both the offences alleged which are punishable under Sections 304 and 149 of the IPC are not applicable to the facts of the case at hand. He would contend that there is no intention of the petitioners to commit homicide, which is the necessary requirement of Section 304 of the IPC. He would contend that if further proceedings are permitted to be continued it would become an abuse of the process of law. On the merit of the matter, the learned senior counsel would contend that the complainant has taken close to 40 days to register the complaint that too alleging that his daughter died of electric shock. He would, on this ground, seek quashment of the entire proceedings.

6. The learned High Court Government Pleader would contend that the petitioners are primarily responsible for the negligent act which has led to the death of the child. They are responsible for the affairs of the apartment complex, as they are the office bearers of the Association. The post-mortem report clearly indicates that the death was caused due to drowning of the child in the swimming pool. He would, therefore, contend that the petitioners/office bearers of the Association will have to come out clean in the trial.

7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

8. The incident happens on 28-12-2023 and the complaint comes to be registered on 08-02-2024. Since the entire issue has now sprung from the complaint, I deem it appropriate to notice the complaint. It reads as follows:

To Date:8-02-2024 Sub-inspector of Police, Varthur Police Station, Bengaluru-560 087.

From:

Rajesh Kumar Damerla, S/o D.L.Kantha Rao, Aged 40 years, Flat 17296,Prestige Lakeside Habitat, Gunjur Varthur, Bengaluru-560 087, Phone 79955661.

Sub: Request to register FIR against ‘Prestige Lakeside Habitat Home Owners Association’ (PLH-HOA) and its deployed contractor ‘Prestige property management and Services (PPMS), Swimming Pool maintenance team of Prestige Lakeside Habitat Society, Gunjur, Bangalore East and other concern persons who have the knowledge of