ORDER

“Not taking any decision is itself a decision”, so said Shri.PV.Narasimha Rao, the ninth Prime Minister of India. In law also, “act' would include “omission to act” as well. An omission is sometimes called a negative act. The Hon'ble Supreme Court cautioned in P.B.Desai v. State of Maharastra (2013) 15 SCC 481 that this seems a dangerous practice for it too easily permits an omission to be substituted for an act without requiring the special requirement for omission liability such as legal duty and physical capacity to perform the act. Section 32 of the IPC states that words referring to acts done extend also to illegal omissions. The adjective “illegal” is highly significant and it is this that has been emphasized in P.B.Desai.

2.The petitioners herein figure as A3 and A4 in Crime No.697 of

2021 registered on the file of the first respondent. They have filed this criminal original petition to quash the F.I.R insofar as they are concerned.

The second respondent herein is the defacto complainant.

3.The case of the prosecution is as follows :

On 21.12.2021 a police patrol team comprising the defacto complainant and one Head Constable by name Saravanan were on their rounds. At about 10.00 p.m they were standing near the occurrence spot. The front portion of a building collapsed. The bricks fell on the defacto complainant and the said Saravanan. Both sustained grievous injuries. Saravanan later succumbed to the same. Initially, the case was registered for the offence under Section 304 A and Section 338 of I.P.C. Later, an alteration report was filed and the offence under Section 304 II of IPC was added in place of Section 304 A.

4.The learned counsel appearing for the petitioners reiterated the contentions set out in the memorandum of grounds and called upon this Court to quash the impugned FIR insofar as the petitioners are concerned. On the other hand, the learned Government counsel appearing for the respondents submitted that the building in question was very old and in a dilapidated condition. The petitioners were in occupation of the said building as tenants. The Madurai Corporation has issued notice calling for demolition of the building. Since the petitioners did not vacate the premises, the demolition could not be carried out. Thus, the petitioners by their act contributed to the occurrence. The case involves death of a Head Constable. The learned Government counsel further submitted that no case for quashing has been made out and that the investigation should be allowed to proceed.

5.The question that falls for consideration is whether the ingredients of the offences under Section 304 II and 338 of IPC are attracted as far as the petitioners are concerned. Section 304 of IPC reads as follows :

“Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with 1[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 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 A of IPC is as follows :

“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.Section 304 IPC can be invoked only if the accused commits culpable homicide not amounting to murder. If the act is intentional, it will fall under Part I. If knowledge alone can be attributed and there is no intention, then the offe