Delhi High Court
Brij Kishore Srivastava And Ors. vs State Of Nct Of Delhi on 29 November, 2017
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IN THE HIGH COURT OF DELHI AT NEW DELHI
Order reserved on 22nd November, 2017
Order pronounced on 29th November, 2017
+ CRL. Rev. Petition 51/2015
BRIJ KISHORE SRIVASTAVA AND ORS. .....Petitioners
Through : Mr. Joydip Bhattarcharya, Mr.Vishnu
Langawat and Mr. Mayank Sharna.
Advocates
Versus
STATE OF NCT OF DELHI ......Respondent
Through: Mr. Amit Ahlawat, APP for State with SI
Ram Naresh from PS- Amar Colony.
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
Crl. M. A. No. 1181/2017 (Delay in re-filing)
This is an application for seeking condonation of 3 days delay in
refiling the petition.
Heard. For the reasons stated in the application, the delay in
refiling the petition is condoned.
Application stands disposed of.
Crl. Rev. Petition 51/2015, Crl. M. A. Nos. 1180/2017 and 4265/2015
(Filing additional documents)
1. The present petition under Section 397 of the Code of Criminal
Procedure has been filed by the petitioners assailing the order dated
26.09.2014 passed by the Metropolitan Magistrate-08, District
South-East District Courts, Saket, New Delhi whereby notice under
Crl. Rev. Petition 51/2015 Page 1 of 5
Section 251 Cr.PC for the offence under Section 288/338/34 IPC
(hereinafter referred to as 'IPC') was framed against the petitioner.
2. Brief and relevant facts necessary for the disposal of the present
petition is that the petitioners are the owners of the property
bearing No. F-6, East of Kailash, New Delhi and sought approval
from the concerned authority for construction of a new three storey
building on the said premises; that the petitioners started carrying
out construction on the aforesaid construction; that on 07.06.2013,
the complainant, who was working as labourer had fallen from the
fourth floor of the aforesaid building; that on the statement of the
complainant, an FIR under Section 288/337 IPC was registered
against the petitioners in the instant case.
3. Learned counsel for the petitioners assailing the impugned order
contended that the petitioners had hired services of an independent
contractor, who had assured to provide all safety measures
including helmets, clothing, gloves etc.; that the complainant
sustained injuries due to his own negligence; that the petitioners
have taken due permission from the authorities for carrying out
repairing/construction of the building in question and hence no
case under Section 288 IPC is made out against the petitioners.
4. During the course of proceedings before the Trial Court, on
06.05.2015, the parties entered into a settlement/compromise and
offence under Section 338/34 stands compounded and the
petitioners stand acquitted for the said offences.
Crl. Rev. Petition 51/2015 Page 2 of 5
5. To substantiate his arguments, learned counsel for the petitioners
placed reliance upon Abdul Kalam Vs. State (Government of NCT
of Delhi) reported in 129(2006) DLT 613.
6. Refuting the arguments advanced on behalf of the petitioner,
learned APP for the State contended that the petitioners failed to
prove that adequate safety measure on the construction site have
been taken by the petitioners and that being the owners of the
property they cannot shed away their responsibility during the
repairing/construction of the building and are liable to be punished
for the offences under Section 288 IPC.
7. The sole issue which arises for consideration in the present petition
is that whether the petitioners are liable to be prosecuted for the
offence punishable under Section 288 of the Indian Penal Code.
8. Section 288 of the Indian Penal Code, reads as under :
"288. Negligent conduct with respect to
pulling down or repairing buildings.--
Whoever, in pulling down or repairing any
building, knowingly or negligently omits to take
such order with that building as is sufficient to
guard against any probable danger to human life
from the fall of that building, or of any part
thereof, shall be punished with imprisonment of
either description for a term which may extend
to six months, or with fine which may extend to
one thousand rupees, or with both."
9. A reading of aforesaid Section makes it clear that Section 288 of
the Indian Penal Code deals with negligent conduct with respect to
pulling down or repairing buildings. In order to frame charge
under Section 288 IPC, the essential ingredients are :-
Crl. Rev. Petition 51/2015 Page 3 of 5
(1) The accused was pulling down or repairing any
building; and
(2) The accused omitted to take sufficient precaution to
guard against the probably danger to human life from
the fall of that building or any part thereof.
10. The Trial Court vide its order dated 26.09.2014 framed notice
against the petitioners for the offence punishable under Section
288/338/34 IPC on the grounds of negligence on the part of the
petitioners which resulted in grievous injury to the complainant
because the petitioners failed to take proper and necessary steps in
guarding any probable danger to human life.
11. Undisputedly, the petitioners are owners of the property in question
where construction work was going on and during the said
construction work, the alleged incident took place. It has emerged
from the record that the petitioners have taken necessary
sanction/approval from the concerned authority to raise
construction on their plot for which they hired the services of a
contractor. The negligence under Section 288 IPC is attracted
when the owner of the building while pulling down or repairing the
building omits to take necessary permission from the authorities to
guard danger to human life. In the instant case, it is apparent on
record that the appropriate approval from the competent authority
has been taken by the petitioners and the work contract was
assigned to a contract for raising construction of the building.
Moreover, the petitioners have compensated the complainant as
mentioned in the order dated 06.05.2015 passed by the Trial Court.
Crl. Rev. Petition 51/2015 Page 4 of 5
12. Considering the fact that Section 288 of the Indian Penal Code only
deals with a situation where a person, in pulling down or repairing
any building, knowingly or negligently omits to take such order
with that building as is sufficient to guard against any probable
danger to human life from the fall of that building, or any part
thereof, I am of the view that essential ingredients of Section 288
IPC have not been answered and the prosecution failed to bring
anything on record to connect the petitioners with the alleged
incident. Therefore, the impugned order dated 26.09.2014 passed
by the Trial Court is set aside and petitioners are discharged for the
offence punishable under Section 288 IPC.
13. Accordingly, the present petition stands disposed off along with
pending applications.
14. A copy of this order be sent to the concerned Trial Court.
Crl. M. A. No. 1179/2015 (Stay)
In view of the order passed in the main petition, the present
application is rendered infructuous.
Application stands disposed of.
SANGITA DHINGRA SEHGAL, J.
NOVEMBER 29, 2017
gr
