Karnataka High Court
B Rajgopal Naidu vs State Of Karnataka on 24 February, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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CRL.P No. 11200 of 2023
C/W CRL.P No. 5586 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO. 11200 OF 2023 (482(Cr.PC) / 528(BNSS)-)
C/W
CRIMINAL PETITION NO. 5586 OF 2024
IN CRL.P No. 11200/2023
BETWEEN:
SANTOSH
S/O B RAJGOPAL NAIDU
AGED ABOUT 35 YEARS
R/AT NO. 552, 9TH CROSS
NEAR MINI FOREST
J.P NAGAR III PHASE
BENGALURU SOUTH - 560 078
...PETITIONER
(BY SRI. SANGAMESH R B.,ADVOCATE)
Digitally signed AND:
by VANAMALA N
Location: HIGH
COURT OF 1. THE STATE OF KARNATAKA
KARNATAKA BY ITS JAYANAGAR POLICE STATION
JAYANAGAR REPTD BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001
2. SMT LALITHA BAI
W/O LATE ADINARAYANA NAIK
AGED ABOUT 36 YEARS
NO.4, 8TH CROSS 5TH PHASE
OM SHAKTHI NAGARA
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CRL.P No. 11200 of 2023
C/W CRL.P No. 5586 of 2024
J P NAGARA
BENGALURU - 560062
...RESPONDENTS
(BY SRI. VIJAY KUMAR MAJJGE, SPP-11 A/W
SMT. RASHMI JADHAV, ADDL. SPP FOR R1;
R2 SERVED BUT UNREPRESENTED)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO
QUASH THE FIR IN CR.NO.259/2023 PENDING BEFORE THE
XXXVII ADDL.C.M.M., BENGALURU FOR THE OFFENCE P/U/S
304(A) OF IPC FILED BY THE JAYANAGARA POLICE,
BENGALURU.
IN CRL.P NO. 5586/2024
BETWEEN:
B RAJGOPAL NAIDU
S/O B GARTAPPA NAIDU,
AGED ABOUT 75 YEARS,
R/AT 552, 8th CROSS,
NEAR MINI FOREST
J P NAGAR III PHASE,
BENGALURU 560 078
...PETITIONER
(BY SRI. SANGAMESH R B.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY JAYANAGAR POLICE STATION,
JAYANAGAR
REP: SPP HIGH COURT OF KARNATAKA
BANGALORE-560001
2. SMT. LALITA BAYI
W/O LATE ADINARAYANA NAIK,
AGED ABOUT 40 YEARS,
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CRL.P No. 11200 of 2023
C/W CRL.P No. 5586 of 2024
NO.4, 8tH CROSS,
V PHASE, OMSHAKTINAGAR, J.P.NAGAR
BANGALORE CITY
BENGALURU 560 062
...RESPONDENTS
(BY SRI VIJAY KUMAR MAJJIGE, SPP-II A/W
SMT. RASHMI JADHAV, ADDL SPP FOR R1;
R2 SERVED BUT UNREPRESENTED)
THIS CRL.P IS FILED U/S 482 CR.PC PRAYING TO
QUASH THE PROCEEDINGS IN C.C.NO.30980/2023
(ARISING OUT OF CR.NO.259/2023, PENDING ON THE FILE
OF XLV ADDL. CMM COURT AT BENGALURU, ALLEGING
OFFENCES U/S 304A, 34 OF IPC, FILED BY THE 1ST
RESPONDENT POLICE.
THESE PETITIONS, COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In these petitions, the petitioners seek the following reliefs:
"Quash the FIR in Crime No.259/2023, pending
before the Hon'ble 37th Addl. CMM Court at Bengaluru, for
the offence punishable u/s. 304(A) of IPC, filed by the
Jayanagar Police, Bengaluru."
"Quash the proceedings in CC.No.30980/2023
(arising out of Cr.No.259/23, pending on the file of XLV
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Addl. CMM Court at Bengaluru, alleging offences under
Section 304-A, 34 of IPC filed by 1st respondent police,"
2. Heard learned counsel for the petitioners and learned
Additional State Public Prosecutor for respondent No.1 and
perused the material on record. The respondent No.2 having been
served with notice of the petitions, has chosen to remain
unrepresented and has not contested the petition.
3. A perusal of the material on record will indicate that the
petitioner - Santosh in Crl.P.No.11200/2023 is the son of Sri. B.
Rajagopal Naidu, who is the petitioner in the connected petition in
Crl.P.No.5586/2024. Both the petitioners are the joint/co-owners of
the premises in question bearing Municipal No.1/18, 27th Cross, 4th
Block, Jayanagar in relation to which, a water level indicator
installation and tank cleaning contract was entered into between
the petitioner in Crl.P.No.11200/2023 and one Sri. Chandrakumar,
who was the contractor and entrusted with the said work in terms of
agreement dated 12.08.2023, which reads as under:
"WATER LEVEL INDICATOR INSTALLATION & TANK
CLEANING CONTRACT
THIS WATER LEVEL INDICATOR INSTALLATION & TANK
CLEANING CONTRACT IS MADE AND EXECUTED ON
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THIS THE 12th DAY OF AUGUST 2023 [12.08.2023] AT
BENGALURU
BY AND BETWEEN:
SRI.BOLLINENI SANTOSH BABU,
Aged 46 years,
Son of Sri.B.Rajagopal Naidu,
Residing at No.552, 9th Cross,
J.P.Nagar 3rd Phase, Bengaluru-560 078
Hereinafter called and referred to as the "FIRST
PARTY/OWNER" (which term wherever it appears hereunder
and if the context so permits and requires shall always be
deemed to mean and include his legal heirs, executors,
successors, legal representatives, attorneys and assigns,
etc.,) of THE ONE PART;
AND:
SRI.CHANDRAKUMAR,
Aged 40 years,
Son of Sri. Puttashetty,
No.45, Ganapathi Temple Road,
Near DSS School, Konankunte,
Bengaluru-560 062
Hereinafter called and referred to as the "SECOND PARTY
/CONTRACTOR" (which term wherever it appears hereunder
and if the context so permits and requires shall always be
deemed to mean and include his legal heirs, executors,
successors, legal representatives, attorneys and assigns,
etc.,) of THE OTHER PART;
WITNESSETH AS FOLLOWS:
WHEREAS the FIRST PARTY herein is the absolute
owner of the immovable property bearing Municipal No. 1/18,
11th Cross, 27th Cross 4th Block Jayanagar, Bengaluru-560
011, consisting of a commercial building.
AND WHEREAS the SECOND PARTY who is a water
level controller and tank cleaning contractor has approached
the FIRST PARTY and has represented to the FIRST PARTY
that the SECOND PARTY has the technical know-how in task
of water level controlling and overhead tank & sump cleaning
and has thereby requested the FIRST PARTY to entrust the
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SECOND PARTY with the work of installation and cleaning of
overhead tanks and sumps including water level controller.
WHEREAS, now this Agreement is being executed for
recording and confirming the terms and conditions discussed
and deliberated between the FIRST PARTY and the
SECOND PARTY herein.
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
1. The SECOND PARTY shall be entitled to undertake
the task of installation and cleaning of overhead tanks and
sumps including water level controller at the building of the
FIRST PARTY situated at Municipal No. 1/18, 11th Cross,
27th Cross 4th Block Jayanagar, Bengaluru-560 011.
2. The SECOND PARTY undertakes to complete the
aforesaid work in the aforementioned property within 20 days
from the date of execution of this Agreement.
3. The SECOND PARTY shall ensure all the necessary
safety and security measures in respect of carrying out the
aforesaid work.
4. The FIRST PARTY/OWNER shall pay a sum of
Rs.16,000/-(Rupees Sixteen Thousand Only) to the SECOND
PARTY/CONTRACT after the due completion of the work
assigned under this Agreement.
5. In case of any accidents or mishaps to any worker or
labourer or any third parties in the work site during the entire
period of work, the same shall be the whole and sole
responsibility of the SECOND PARTY and the FIRST PARTY
shall not have any liability in that regard in any manner
whatsoever.
6. The SECOND PARTY shall ensure that no nuisance
is caused to the neighbouring properties at the time of
carrying out the work in the property.
IN WITNESS WHEREOF, the FIRST PARTY and the
SECOND PARTY herein have set and subscribed their
respective signatures to this AGREEMENT on the date,
month and year aforementioned in presence of the following
witnesses.
[SRI.BOLLINENI SANTHOSH BABU]
FIRST PARTY
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[SRI.CHANDRAKUMAR]
SECOND PARTY"
As per the terms and conditions of the agreement, it was the sole
responsibility of the aforesaid contractor to ensure that all the
necessary safety and security measures in respect of carrying out
the contract work of installation of a water level indicator and
cleaning of tank/sump in the aforesaid premises, are taken by the
contractor.
4. On 22.08.2023, one of the workers working under the
aforesaid contractor, died due to electric shock while carrying out
the sump work and his wife Smt. Lalitha Bayi filed a police
complaint, which was registered as an FIR in Crime No. 259/2023
against the petitioner in Crl.P.No.11200/2023 as well as the
contractor for the alleged offence punishable under Section 304A
of IPC. Subsequently, after investigation, the respondent No.1-
police authorities filed a charge sheet only in relation to the
petitioners and not the aforesaid contractor, whose name was
dropped from the charge sheet but cited as a witnesss - CW.10 in
the charge sheet. Aggrieved by the impugned proceedings initiated
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against them, the petitioners are before this Court by way of the
present petitions.
5. In addition to reiterating the various contentions urged
in the petitions and referring to the material on record, the learned
counsel for the petitioners invited my attention to Clause No.3 of
the aforesaid agreement in order to point out that the aforesaid
contractor had unequivocally undertaken to take complete and take
sole responsibility of all safety measures to be carried out at the
time of cleaning work and as such, the petitioners, who are the
owners, do not have any responsibility or liability in this regard and
the impugned proceedings against them for offence punishable
under Section 304A of IPC deserve to be quashed.
6. It is also submitted that in the absence of a nexus or a
proximate cause between the petitioners and the happening of the
incident pursuant to the cleaning work, which was entrusted to the
aforesaid contractor and the demise of his worker having no
connection or nexus whatsoever with the petitioners, who are
merely the owners of the building, it cannot be said that the
petitioners are guilty of the offence punishable under Section 304A
of IPC and the impugned proceedings deserve to be quashed. In
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support of his submissions, he places reliance upon following two
judgments.
i. Mr. Udayakumar and others Vs. State of
Karnataka and another in Crl.P.No.2489/2016
decided on 24.07.2019.
ii. K.P.Gopalkrishna Vs. Mustafa Yusuf and Another
- AIROnline 2021 Kar 1246.
7. Per contra, learned Additional State Public Prosecutor
for respondent No.1 submits that it was the responsibility of the
petitioner/owner of the building to ensure that all safety measures
are taken and as such, there is no merit in the petitions and the
same are liable to be dismissed
8. Before adverting to the rival submissions, it would be
necessary to extract the relevant portion of the aforesaid
agreement entered into between the petitioner in
Crl.P.No.11200/2023 and contractor, in particular Clause No.3,
which reads as under:
"3. The SECOND PARTY shall ensure all the
necessary safety and security measures in respect of
carrying out the aforesaid work."
9. As is evident from Clause No.3 (supra), it was the sole
responsibility of the second party i.e., the aforesaid contractor to
ensure that the cleaning work is done with all safety measures
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being put in place and the petitioners, who had nothing to do with
the cleaning work or the worker employed by the aforesaid
contractor, cannot be incriminated for the offence punishable under
Section 304A of IPC, especially when there was no proximate
cause or live nexus attributable for the petitioners for the aforesaid
offence.
In the case of K.P.Gopalakrishna referred to supra, the Co-
ordinate Bench of this Court held as under:
"12. Having heard the arguments of the respective
counsel and on perusal of the records, admittedly, an FIR is
filed against the Contractor at the first instance and against
the school management and while filing the charge sheet,
the name of this petitioner has been implicated as accused
No. 2. It is also not in dispute that the school management
wrote a letter to the Forest Department and obtained the
permission to cut and remove the trees. It is also not in
dispute that the material discloses that the work was
entrusted to accused No. 1 to cut and remove the trees and
an amount of Rs. 16,000/- was paid towards cutting and
removing of the trees. It is also important to note that in
order to invoke Section 304-A, there must be a direct causa
causans as held by different Courts and also the Apex
Court and there must be direct cause to implicate a person
to invoke Section 304-A.
13. The Apex Court in Ambalal's case (supra),
categorically held that in a case under Section 304-A, there
is a casual chain which consists of many links, it is only that
which contributes to the cause of all causes, namely, the
causa causans and not causa sine qua non which fixes the
culpability. In other words, it is held that it is not enough for
the prosecution to show that the appellant's action was one
of the causes of death.
14. No doubt, in this case also work was entrusted to
accused No. 1 and there must be direct result of rash and
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negligent act of the accused to bring him within the ambit of
Section 304-A. In the absence of any direct result of rash
and negligent act of the accused, the petitioner cannot be
prosecuted for the offence punishable under Section 304A.
15. This Court in Criminal Petition No.
3186/2011 (supra), held that for the offence punishable
under Section 304A read with Section 34 of IPC, the
petitioner has been arraigned as accused No. 2 in the said
case. The petition is filed when the work was entrusted and
the victim was died on account of electrocution and the
proceedings has been quashed.
16. The Division Bench of High Court of Judicature at
Bombay in Criminal Writ Petition No. 4501/2014 (supra),
held that, one of the essential ingredients of Section 304A
is that the rash and negligent act on the part of the accused
must result in causing death. It is also observed that the
said ingredient is completely absent in the present case as
far as the office bearers and members of the Managing
Committee of the Society are concerned.
17. Having taken note of the principles laid in the
judgments referred supra and also taking into consideration
the facts and circumstances of the case, he being the
Chairman of the Institution cannot be prosecuted for an
offence punishable under Section 304-A of IPC and there is
no any direct cause and he was also not present at the spot
when the work was going on and he was not supervising
the work and the work was entrusted to accused No. 1, who
was doing the work. On the basis of entrustment of work,
he should have taken more care while cutting and removing
the tree as entrusted to him. Hence, I am of the opinion that
it is a fit case to exercise the powers under Section 482 of
Cr.P.C., to quash the proceedings against the petitioner
herein in view of the fact that there is no any direct result of
rash and negligent act of accused in the case on hand."
So also in the case of Mr. Udayakumar, the Co-ordinate
Bench has held as under:
"8. Section 304A of Indian Penal Code reads thus:
"304A. Causing death by negligence.- Whoever causes the
death of any person by doing any rash or negligent act not
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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."
9. 'Negligence' is the failure to use reasonable care which a
person of ordinary prudence would do under similar
circumstances. In order to render a person culpable for the
offence under Section 304A of Indian Penal Code, there must
be rash and negligent act on the part of the accused. In the
instant case, going by the case of the prosecution, the
deceased died on account of collapse of the centering while
laying concrete to the first floor of the building under
construction. As already stated above, the construction work
was taken up by accused No.1 Sri.Uday Kumar (contractor) as
per the terms and conditions of the Articles of Agreement
dated 20.9.2007. In terms of the said agreement, failure of
accused No.1 to provide necessary safety measures for
labourers, would primarily render him liable for the negligence
leading to the death of the deceased. Accused No.2 was the
Site Engineer. He used to look after the construction work and
accused No.3 was the Architect of the said construction at the
relevant time.
10. Learned counsel has produced a copy of the order passed
by this court in Criminal Petition No.936/2011 dated 20.1.2016
wherein this court has quashed the charge sheet filed against
accused No.4 namely the owner of the said building. Accused
Nos.2 and 3 also stand on the same footing as that of accused
No.4.
11. It is now well settled that in order to constitute an offence
under section 304A of Indian Penal Code, the negligence
imputed to the accused must be gross in nature. Though the
term "gross" has not been used in section 304A of Indian
Penal Code, in JACOB MATHEW vs. STATE OF PUNJAB &
Others (2005) 6 SCC 1, the Hon'ble Supreme Court while
examining a case of criminal medical negligence by a Doctor
under section 304A of Indian Penal Code, has reviewed the
case law on the subject and in para 48 thereof, has held as
under:
"(5) The jurisprudential concept of negligence differs in
civil and criminal law. What may be negligence in civil
law may not necessarily be negligence in criminal law.
For negligence to amount to an offence, the element of
mens rea must be shown to exist. For an act to
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amount to criminal negligence, the degree of
negligence should be much higher i.e., gross or of a
very high degree. Negligence which is neither gross
nor of a higher degree may provide a ground for action
in civil law but cannot form the basis for prosecution.
(6) The word 'gross' has not been used in Section 304-
A IPC, yet it is settled that in criminal law negligence or
recklessness, to be so held, must be of such a high
degree as to be 'gross'. The expression 'rash or
negligent act' as occurring in Section 304-A IPC has to
be read as qualified by the word 'grossly'."
12. In SUSHIL ANSAL vs. STATE through Central Bureau of
Investigation (2014) 6 SCC 173, the Hon'ble Supreme Court in
para 78 has held as under:
"There is no gainsaying that negligence in order to
provide a cause of action to the affected party to sue
for damages is different from negligence which the
prosecution would be required to prove in order to
establish a charge of 'involuntary manslaughter' in
England, analogous to what is punishable under
Section 304-A IPC in India. In the latter case it is
imperative for the prosecution to establish that the
negligence with which the accused is charged is
'gross' in nature no matter that Section 304-A IPC
does not use that expression. What is 'gross' would
depend upon the fact situation in each case and
cannot, therefore, be defined with certitude. Decided
cases alone can illustrate what has been considered
to be gross negligence in a given situation."
As held by this Court in the aforesaid judgments relying upon
earlier judgments of the Apex Court, in order to make a person
culpable for the offence under Section 304A of IPC, mere
negligence resulting in civil consequences would not be sufficient
and it is only in the case of gross negligence that Section 304A of
IPC would be attracted.
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10. In the instant case, it is an undisputed fact borne out
from the material on record that pursuant to the aforesaid
agreement dated 12.08.2023 entered into between the petitioner in
Crl.P.No.11200/2023 and the contractor, the petitioners had no
control over cleaning work done in tank/sump resulting in the
demise of the aforesaid worker, especially when the contractor had
taken full and complete responsibility by ensuring all safety
measures for the purpose of ensuring the safety of his worker.
11. In addition there to, in the absence of a live nexus or
proximate cause between the petitioners and the demise of the
worker employed by the aforesaid contractor, I am of the view that
the petitioners cannot be held to be liable for the offence
punishable under Section 304A of IPC and consequently,
continuation of the impugned proceedings would amount to abuse
of process of law warranting interference by this Court in the
present petition.
12. However, it is pertinent to note that though the
aforesaid contractor was initially arraigned as an accused person in
the FIR, subsequently, his name has not been included and has
been dropped from the charge sheet, which is filed only against the
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petitioners and the aforesaid contractor who is cited as only a
witness [CW.10]. It is therefore clear that the investigation carried
out by the respondent No.1 - police by dropping the name of the
contractor as an accused and arraigning him only as a witness -
CW.10, is clearly perfunctory, shoddy and unlawful, warranting
directions to be issued for further investigation in the ends of
justice.
13. Hence, the following:
ORDER
i. The petitions are hereby allowed.
ii. The impugned proceedings in C.C.No.30980/2023
arising out of Crime No.259/2023 pending on the file of
XLV Additional Chief Metropolitan Magistrate,
Bengaluru qua the petitioners are quashed.
iii. The respondent No.1 - police are directed to conduct
further investigation and file a supplementary/fresh
charge sheet and proceed further in accordance with
law.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
RB
