Karnataka High Court

Dr.Nanjaraj C P vs State By on 28 June, 2022

Bench: M.Nagaprasanna

                                                  -1-




                                                         CRL.P No. 9106 of 2021


                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 28TH DAY OF JUNE, 2022

                                             BEFORE
                          THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                             CRIMINAL PETITION NO. 9106 OF 2021
                   BETWEEN:

                   1.    DR.NANJARAJ C.P.,
                         S/O B.PUTTARAJU
                         AGED ABOUT 59 YEARS
                         R/AT NO.1711, 8TH MAIN
                         HEBBAL 2ND STAGE
                         MYSURU - 570 017.

                         WORKING AS
                         DEAN AND DIRECTOR
                         IN MYSURU MEDICAL COLLEGE
                         AND RESEARCH INSTITUTE
                         IRWIN ROAD, MYSURU - 570 001.

                   2.    DR NANJUNDASWAMY
                         S/O S.LINGAIAH
                         AGED ABOUT 52 YEARS
Digitally signed
                         R/AT NO.359,
by PADMAVATHI
BK                       MUDA EMPLOYEES LAYOUT
Location: High
Court of
                         DATAGAHALLI, 3RD STAGE,
Karnataka
                         MYSURU - 570 022.


                         WORKING AS
                         MEDICAL SUPERINTENDENT
                         K R HOSPITAL,
                         DEVARAJA MOHALLA,
                         YADAVAGIRI,
                         MYSURU - 570 001.
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                                    CRL.P No. 9106 of 2021


3.   DR. RAJESH KUMAR M.S.,
     S/O LATE M.B.SHIVARAMEGOWDA
     AGED ABOUT 52 YEARS
     R/AT NO.213, 23RD CROSS,
     3RD MAIN, D BLOCK,
     3RD STAGE, MYSURU - 570 030


     WORKING AS
     RESIDENT MEDICAL OFFICER
     K R HOSPITAL,
     DEVARAJA MOHALLA,
     YADAVAGIRI,
     MYSURU - 570 001.

                                            ...PETITIONERS

(BY SRI. SHARATH S. GOWDA.,ADVOCATE)

AND:

1.   STATE BY
     MANDI P.S.,
     NARASIMHARAJA SUB DIVISION,
     MYSURU CITY - 570 001
     REP BY SPP
     HIGH COURT BUILDING,
     BENGALURU - 560 001.

2.   BASAVARAJU
     S/O LATE NINGAIAH
     AGED 37 YEARS
     R/AT NO.01/1, SHIVAJI ROAD,

     N.R.MOHALLA,
     MYSURU CITY - 570 007.

                                          ...RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP FOR R1;
       R2 SERVED)
                                -3-




                                      CRL.P No. 9106 of 2021


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE FIR AND COMPLAINT IN
CR.NO.87/2021 DATED 05.10.2021 REGISTERED BY THE 1ST
RESPONDENT POLICE ON THE FILE OF PRINCIPAL CIVIL JUDGE
(JR.DN.) AND J.M.F.C. COURT, J.L.B. ROAD, MYSURU CITY FOR
THE OFFENCE P/U/S 304, 408, 409, 420 AS AGAINST THE
PETITIONER VIDE ANNEXURE-A AND B RESPECTIVELY.

     THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

The petitioners are before this Court calling in question

proceedings in crime No.87/2021, pending before the

Principal Civil Judge (Jr. Dn.) & JMFC, JLB Road, Mysuru,

registered for the offences punishable under Sections 304,

408, 409 and 420 of the IPC.

2. Heard Sri Sharath S. Gowda, learned counsel for the

petitioners and Smt. K.P. Yashodha, learned High Court

Government Pleader for respondent No.1.

3. Brief facts of the case leading to the filing of the

petition as borne out from the pleadings are as follows:

Respondent No.2 - complainant is the son of one

Ningaiah, who was working as an employee of Surabhi

Enterprises Angency, a contractor of Housekeeping services

CRL.P No. 9106 of 2021

and when his father visited K.R.Hospital to perform his

duties out of his contract, an incident happened on

10.08.2021, by which, the father of the complainant fell and

sustained injuries. Immediately, the injured succumbed to

the injury, while on the way to hospital. The complainant

registers a complaint on 05.10.2021 for the afore-quoted

offences against all the accused, alleging that the injuries

and the death of his father was only on the negligence on the

part of the petitioners and Surabhi Enterprises. The

petitioners are Dean Cum Director, Medical Superintendent

and Resident Medical Officer at the K.R.Hospital, are all

before this Court seeking quashment of proceedings

pursuant to the registration of crime.

4. Learned counsel for the petitioners would contend

that none of the offences so alleged would be attributable

against the petitioners as the petitioners are Dean Cum

Director, Medical Superintendent and Resident Medical

Officer of the Medical College Hospital and the father of the

complainant was working as an employee of Surabhi

Enterprises, a contractor for housekeeping services in the

CRL.P No. 9106 of 2021

Hospital. An unfortunate incident that happened on

05.10.2021, takes the life of the father of respondent No.2 -

complainant and the petitioners cannot be hauled into these

proceedings.

5. Learned High Court Government Pleader would seek

to justify the registration of the crime and submit that it is a

matter of investigation that all the petitioners have to face

and then come out clean in the trial.

6. I have given my anxious consideration to the

submissions made by the learned counsel appearing for

both the parties and perused the material on record.

7. The afore-narrated facts are not in dispute. The

position of the petitioners in the Hospital is also not in

dispute. The father of the complainant has worked in the

Hospital for 15 years, prior his death is also not in dispute.

On a fateful day, i.e., on 10.08.2021, while performing the

duties, the father of the complainant had a fall and result of

the fall, is his death.

CRL.P No. 9106 of 2021

8. The allegation in the complaint is that, the

petitioners and the Office Bearers of the Surabhi

Enterprises, the housekeeping contractor of the

K.R.Hospital, are responsible for the death of his father and

therefore, the offences punishable under Section 304, 408,

409 and 420 of the IPC are levelled against the petitioners.

Though the FIR is registered for the offence under Section

304 of the IPC, it should have been for the offence

punishable under Section 304A of the IPC, as the alleged

offences are the ingredients of Section 304A of the IPC,

which deals with 'causing death by negligence' and not

'punishment for culpable homicide not amounting to murder'

which is dealt under Section 304 of the IPC. Except this,

the other provisions of law alleged are under Section 408,

409 and 420 of the IPC, against the petitioners would not be

applicable to the case at hand.

9. Even Section 304A of the IPC cannot be alleged

against the petitioners as the petitioners are not seen to

have acted in a rash or negligent manner, which resulted in

the death of the father of the complainant. While

CRL.P No. 9106 of 2021

unfortunate circumstance has happened, the petitioners

cannot be hauled into these proceedings without there being

any ingredients whatsoever of Section 304A of IPC, that can

be attributable to the petitioners.

10. The Apex Court in the case of AMBALAL D.BHATT

v. STATE OF GUJARAT reported in (1972) 3 SCC 525,

wherein it is held as follows:

"10. It appears to us that in a prosecution for an offence under Section 304-A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. If that were so, the acquittal of the appellant for contravention of the provisions of the Act and the Rules would itself have been an answer and we would have then examined to what extent additional evidence of his acquittal would have to be allowed, but since that is not the criteria, we have to determine whether the appellant's act in giving only one batch number to all the four lots manufactured on November 12, 1962, in preparing Batch No. 211105, was the cause of deaths and whether those deaths were a direct consequence of the appellants' act, that is, whether the appellants' act is the direct result of a rash and negligent act and that act was the

CRL.P No. 9106 of 2021

proximate and efficient cause without the intervention of another's negligence. As observed by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap [(1902) 4 Bom LR 679] the act causing the deaths "must be the causa causans; it is not enough that it may have been the cause sine qua non". This view has been adopted by this Court in several decisions. In Kurban Hussein Mohammedali Rangwala v. State of Maharashtra [(1965) 2 SCR 622] the accused who had manufactured wet paints without a licence was acquitted of the charge under Section 304-A because it was held that the mere fact that he allowed the burners to be used in the same room in which varnish and turpentine were stored, even though it would be a negligent act, would not be enough to make the accused responsible for the fire which broke out. The cause of the fire was not merely the presence of the burners within the room in which varnish and turpentine were stored, though this circumstance was indirectly responsible for the fire which broke out, but was also due to the overflowing of froth out of the barrels. In Suleman Rehiman Mulani v. State of Maharashtra [(1968) 2 SCR 515] the accused who was driving a car only with a learner's licence without a trainer by his side, had injured a person. It was held that that by itself was not sufficient to warrant a conviction under Section 304-A. It would be different if it can be established as in the case of Bhalchandra alias Bapu v. State of Maharashtra [(1968) 3 SCR 766] that deaths and injuries caused by the contravention of a prohibition in respect of the substances which are highly dangerous as in the case of explosives in a cracker factory which are considered to be of a highly hazardous and dangerous nature having sensitive composition where even friction

CRL.P No. 9106 of 2021

or percussion could cause an explosion, that contravention would be the causa causans."

(Emphasis supplied)

The Apex Court clearly holds that cause of death should be

a direct consequence of the act of the accused and that

should be an act either rash or negligent and proximate to

the cause of such death. Thus, the petitioners cannot be

hauled into the proceedings for offences punishable under

Section 304A of the IPC. In the light of the facts obtaining in

the case at hand and the judgment of the Apex Court as

afore-quoted, if the proceedings are permitted to be

continued, it would degenerate into harassment and result

in miscarriage of justice.