Bombay High Court
P. Venku Reddy vs The State Of Maharashtra on 30 November, 2023
Author: A. S. Gadkari
Bench: A. S. Gadkari
2023:BHC-AS:35654-DB
Sonali Mane 222-APL-343-2012(J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 343 OF 2012
Mr. P. Venku Reddy
Age : 61 Years, Occ: Business,
R/at: 1st Floor, Sri Durga
Chambers, Punjagutta,
Hyderabad - 500082 .. Applicant
(Org. Accused)
Vs.
The State of Maharshtra,
(At the instance of Sub Inspector
Chandgad Police Station, Kolhapur) .. Respondent
Mr. Ashok Mundargi, Senior Advocate i/b Mr. Abhishek Yende a/w Mr.
Rishikesh Dube for the Applicant.
Ms. Anamika Malhotra, APP, for the Respondent-State.
CORAM : A. S. GADKARI AND
SHYAM C. CHANDAK, JJ.
RESERVED ON : 4th NOVEMBER, 2023.
PRONOUNCED ON : 30th NOVEMBER, 2023.
JUDGMENT:
[PER- SHYAM C. CHANDAK, J.]
1) By this Application under Section 482 of the Code of Criminal
Procedure, 1973, the Applicant seeks quashing of the F.I.R. bearing
C.R.No.12 of 2012, registered with Chandgad Police Station, District
Kolhapur, on 16th February, 2012, for the offences Punishable under Sections
304-A, 337, 338 read with Section 34 of the Indian Penal Code, 1860,
Digitally
signed by
MANE
MANE SONALI
SONALI DILIP
DILIP Date:
2023.11.30
23:13:08
+0530
Sonali Mane 222-APL-343-2012(J).doc
against the Applicant and others.
2) Heard learned Counsel for the Applicant and learned APP for
the Respondent-State.
3) By an Order dated 25th October, 2012 Rule and interim relief
were granted.
4) As alleged in the F.I.R., M/s. P. Venku Reddy Project Ltd., a
private company had taken the contract of constructing the dam under
Jamabre Medium Project, at District Kolhapur. The Applicant (accused No.1)
is owner of the said Company. At the relevant time, excavation work for the
dam was going on in the bed of river Tamraparni. The said work was being
done with the help of a Poclain machine. The excavation was deep, hence,
water from surrounding area had collected in the excavated area. That water
was to be drained with the help an engine.
4.1) On 15th February, 2012, the work at the site was to be started at
about 8 a.m, but surrounding water had collected at the excavated site and
it was necessary to be lifted. Therefore, at about 10:30 a.m. labours namely
Allaiya Bhandri Sawaigoda, Mohammad Jahangir Pakija and Jamunapal
carried an engine at the excavated site and they were fixing a pipe to the
engine. At that time, Bartala Ramana, Project Site Supervisor and
Shashidhar Reddy, Chief/General Manager (accused No.4) went there and
were telling the labours to connect the engine. At this juncture, a big boulder
Sonali Mane 222-APL-343-2012(J).doc
tumbled down from upper side of the work site. Immediately, Bartala
Ramana jumped aside and saved himself. But Shashidhar Reddy and the said
three labours got pressed under that boulder. Immediately, the boulder/earth
was removed with the help of Poclain machine and labour Jamunapal,
Allaiya Bhandri and Shashidhar Reddy were taken out. Jamunapal got
injured but labours Allaiya Bhandri, Jahangir Pakija and Shashidhar Reddy
died due to the incident. The injured and dead were taken to the
Government Hospital. Thereafter, informant Bartala Ramana lodged a
report, pursuant to which A.D.No.5 of 2012 was registered under Section
174 of the Cr.P.C. The postmortem examinations revealed that, the three
died due to pressing of their chest by the boulder. The Police recorded the
spot panchnama and statement of witnesses.
4.2) Investigation revealed that, Shashidhar Reddy (deceased) was
looking after the construction site work under the supervision of the
Applicant and under the directions of his engineers Manoj Kekade and
Nagbhushan (accused Nos.2 and 3). At the relevant time, Shashidhar Reddy
neglected to keep proper lookout at the situation of the construction site and
took the labours at the base of the construction site to drain the water with
the help of engine. At the same time, the Applicant, his said two engineers
and Shashidhar Reddy did not take proper care and exercise proper
supervision in advance. As a result, boulder and earth fell on the labours and
Sonali Mane 222-APL-343-2012(J).doc
Shashidhar Reddy and consequently, they died. Thus, the incident occurred
due to rashness and negligence on the part of the Applicant, his said two
engineers and Shashidhar Reddy. Hence, Ankush Pawar, PSI, Chandvad
Police Station lodged the FIR based on which the above said crime came to
be registered against the Applicant, his said two engineers and Shashidhar
Reddy.
5) Learned counsel for the Applicant submitted that, at the
relevant time, the Applicant was Chairman of the Company. Manoj Kekade
was the Chief Engineer, Mr. Nagbhushan was Jr. Site Engineer and
Shashidhar Reddy was the Site Manager. The Applicant was not present at
the excavation site of the dam. Such type of work of the company was going
on simultaneously at various places/sites. Hence, the Applicant had no
knowledge about the manner in which the excavation work was carried out.
It is submitted that, the Chief Engineer, Junior Engineer and Site Manager
(accused Nos.2 to 4) were looking after the said excavation work. So, the
excavation, removing the water collected at the excavated site and use of
excavated material etc. was totally the responsibility of Accused Nos.2 to 4.
The said work was carried out under their direct instruction. Therefore, they
had engaged the labours for the said work. It is submitted that, Sashidhar
Reddy was head of the site office. His prime duty was to manage the site in
all respects including the overall security and safety of the work.
Sonali Mane 222-APL-343-2012(J).doc
6) Learned Counsel for the Applicant submitted that, the
excavation work in question was not carried out under the direct
instructions of the Applicant. In fact, the Applicant has not given any
instructions to the labours and masons who were working at the site as to
how the excavation work be carried out. As such there is no nexus between
the alleged rash and negligent act attributed to the Applicant and the
unfortunate incident. That apart, the excavated portion consists of soft soil
including round boulders. As long as the soil is in wet condition ( i.e. having
moisture), it grips boulders and when exposed gradually the soil gets dried
up and boulders become fetterless or loose. This may be one of the reasons
which caused this incident. In the backdrop, there is no prima-facie case to
invite the charge of the aforesaid offences and fasten criminal liability upon
the Applicant. Yet, the Applicant has been figured in the impugned F.I.R. for
one simple reason that, he was the Chairman of the Company, so vicariously
liable for the act of his Officers. He submitted that, hence the F.I.R. is liable
to be quashed and set aside.
7) Per contra, based on the Affidavit-in-reply submitted by the
Investigation Officer, learned APP strongly submitted that, the Applicant had
obtained the contract of constructing the dam. He had employed the other
accused persons to execute the dam construction work. In turn, the said
Sonali Mane 222-APL-343-2012(J).doc
accused Officers undertook the excavation activity at the construction site
with the help of labours. Looking at the contents of the F.I.R., accumulation
of the surrounding water in the excavated site was a recurring problem. At
the relevant time, the water had accumulated at the base of the site, where
the excavation work was going on. Therefore, there was every possibility of
the boulder/earth felling from the top on the people who were busy at the
base in lifting the water. This danger was easily foreseeable. As such, the
Applicant and the co-accused persons were duty bound to take due care and
exercise necessary caution, so that the victims would have been warned, not
to go for lifting the water or to provide them necessary protection to avoid
the untoward incident. Nevertheless, no such care and caution was taken.
This omission ultimately gave rise to the present incident claiming innocent
lives of two labours and causing injuries to one labour. These circumstances
are very evident from the statement of the engineers from PWD and other
witnesses. Thus, there was rashness and negligence on the part of the
Applicant and the co-accused persons. Hence, no fault can be found with the
Respondent Police Station for registering the impugned F.I.R against the
Applicant and others. As such there is no substance in the Application and it
is liable to be rejected.
8) It is not in dispute that, the Applicant is owner of the Company.
The Work Order (Exh.-A) shows that, the construction work of the earth
Sonali Mane 222-APL-343-2012(J).doc
dam under Jamabre Medium Project was given to the Company of the
Applicant. As stated in the F.I.R. (Exh.-C), Accused Nos.2 and 3 were the
engineers at the construction site and Accused No.4 Sashidhar Reddy
(deceased) was the Chief/General Manager there.
9) The claim of the Applicant that, he was not present at the
excavation site, is not controverted in the reply Affidavit. As alleged in the
F.I.R., at the relevant time Shashidhar Reddy-deceased was looking after the
work of the construction site under the supervision of the Applicant and
under the directions of his engineers Manoj Kekade and Nagbhushan. But
Shashidhar Reddy neglected to keep proper lookout at the perilous situation
of the construction site and instead took the labours at the base of the
construction site to drain out the water with the help of the engine. Looking
at this narration in the F.I.R., it is crystal clear that neither the Applicant nor
Manoj Kekade and Nagbhushan were directly or indirectly involved in the
said act of Sashidhar Reddy of omitting to keep proper lookout at the
hazardous situation of the construction site and taking the labours at the
base of the construction site to drain out the water.
10) Considering the facts and circumstances of the case, Sashidhar
Reddy being Chief/General Manager, onus was his to take proper care at the
construction site and to ascertain whether it is safe to take the labours at the
base of the site to lift the water, or not. But unfortunately, he omitted to do
Sonali Mane 222-APL-343-2012(J).doc
so. As such the Applicant and other co-accused persons cannot be held
responsible for this omission on the part of deceased Sashidhar Reddy.
Therefore, at the most only Sashidhar Reddy can be said to have committed
the rash and negligent act in the incident.
11) It is well-settled that, there is a distinction between a rash act
and a negligent act. It is a fact incapable of being construed or seen in
isolation. It must be examined in light of the attendant circumstances. A rash
act is primarily an over-hasty act and is thus opposed to a deliberate act. But
it also includes an act which, though it may be said to be deliberate, is yet
done without due deliberation and caution. In rashness, the criminality lies
in running the risk of doing an act with recklessness or indifference to
consequences. Where negligence is an essential ingredient of the offence, the
negligence to be established by the prosecution must be culpable or gross
and not the negligence merely based upon an error of judgment. Simple lack
of care such as will constitute civil liability, is not enough. For liability under
the criminal law a very high degree of negligence is required to be proved.
12) Under the English law rashness means recklessness. A reckless
act has to be understood in two different senses, subjective and objective. In
the subjective sense, it means deliberate or conscious taking of an unjustified
risk which could be easily foreseen and in the circumstances of the case was
unreasonable to take. In this sense it almost amounts to an oblique intent on
Sonali Mane 222-APL-343-2012(J).doc
the part of the accused. In the objective sense, the accused is not conscious
of the result though he ought to be aware that it might follow and in this
sense, it is almost equivalent to negligence. In other words, negligence
involves blameworthy heedlessness on the part of the accused which a
normal prudent man exercising reasonable care and caution ought to avoid.
Criminal negligence is the gross and culpable neglect or failure to exercise
that reasonable and proper care and precaution to guard against injury
either to the public generally or to an individual in particular, which having
duty of the accused person to have adopted. Negligence is an omission to do
something which a reasonable man, guided upon those considerations which
ordinarily regulate the conduct of human affairs, would do or doing
something which a prudent and reasonable man would not do. A culpable
rashness is acting with the consciousness that, the mischievous and illegal
consequences may follow, but with the hope that they will not and often
with the belief that, the actor has taken sufficient precaution to prevent their
happening. The imputability arises from acting despite the consciousness.
Culpable negligence is acting without the consciousness, that the illegal and
mischievous effect will follow, but in circumstances which show that the
actor has not exercised the caution incumbent upon him and if he had, he
would have had the consciousness. The imputability arises from the neglect
of the civic duty of a circumspection. As between rashness and negligence,
Sonali Mane 222-APL-343-2012(J).doc
rashness is a graver offence.
13) As can be gathered from the text of the F.I.R., the boulder/earth
suddenly fell at the place where the three deceased and the injured were
working to lift the water. But it was not the case that at the relevant time
some Poclain machine was actually excavating at the upper portion of the
work site and therefore, felling of the boulder/earth was certain. It is also
not the case that, the boulder/earth at the said upper portion had loosened
due to the excavation work already done there, therefore it was very likely
that said loose boulder/earth would fall down, and the said facts were
noticed by or within the knowledge of the Applicant and the co-accused. Yet,
they instructed and allowed Sashidhar Reddy to take the labours to lift the
water and at that very juncture, the boulder/earth fell on them. In short,
there were no circumstances from which it can be said that, when Sashidhar
Reddy took the labours in the excavated pit to lift the water, Sashidhar
Reddy, the Applicant and the co-accused Officers knew that the
boulder/earth would fall on them, but they hoped that it would not. Thus,
deliberately they took the unreasonable risk of sending Sashidhar Reddy and
the labours to lift the water, as a result Sashidhar Reddy and the labours
came under the boulder/earth. Therefore, there was rashness on the part of
the accused persons. Nor the facts and circumstances of the case make it
easily understandable that the situation at the spot of occurrence was such
Sonali Mane 222-APL-343-2012(J).doc
that if Sashidhar Reddy and the labours go to lift the water, the present
incident would follow. But Shashidhar Reddy was unaware of such a
pernicious situation. However, there was every scope for Shashidhar Reddy
to exercise sufficient caution and estimate such a situation. Therefore, either
he could have provided them certain protection or given safety instructions
to avert the incident or he could have omitted to take the labours to lift the
water. Therefore, this is a case of negligence. In fact, as can be easily
perceived from the F.I.R., the three labours had already taken the engine
down and were fixing the pipe and thereafter only, Shashidhar Reddy and
Bartala Ramana went down to see the engine and give necessary
instructions to the labours. That apart, if indeed the situation at the spot of
the occurrence was so dangerous, then at least Shashidhar Reddy would not
have risked his own life.
14) In view of the above discussion, it cannot be said that, there was
direct nexus between the act of Sashidhar Reddy in taking the labours to lift
the water and felling of boulders/earth on them. As such this incident
cannot be held to be the outcome of alleged rash and negligent act on the
part of the Applicant and his engineers Accused Nos. 2 and 3. In fact,
considering the totality of the facts and circumstances, the incident in
question was purely an accident. As such, the offences punishable under
Sections 304A, 337, 338 read with Section 34 of the Indian Penal Code
Sonali Mane 222-APL-343-2012(J).doc
probably only because the Applicant is the owner of the company and
accused Nos.2 and 3 were the immediate higher Officers of the company. As
a result, the impugned F.I.R. is liable to be quashed and is accordingly set
aside qua the Applicant.
15) The impugned F.I.R. bearing C.R.No.12 of 2012 registered with
the Respondent-Chandgad Police Station, District Kolhapur dated 16th
February, 2012 for the offences Punishable under Sections 304-A, 337, 338
read with Section 34 of the Indian Penal Code, 1860, against the Applicant
is quashed and set aside.
16) Application is allowed in the aforesaid terms.
17) Rule is made absolute.
(SHYAM C. CHANDAK, J.) (A. S. GADKARI, J.)
