Allowed

S L Ladhani v. State of Karnataka

Karnataka HC22 Sept 2023CRL.P/7592/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka quashed criminal proceedings against the petitioner in a case involving a fatal fire accident. Citing previous judgments, the court held that since the company was not arrayed as an accused, the complaint was not maintainable against the director. Additionally, the prosecution failed to prove gross negligence under Section 304 IPC.

What did the court decide?

The proceedings in S.C. No. 1164/2010 pending before the Additional City Civil and Sessions Judge, Bengaluru, stand quashed qua the petitioner.

S L Ladhani Vs State of Karnataka — Quashing and FIR | Karnataka HC (2023)

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NC: 2023:KHC:34360 CRL.P No. 7592 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 7592 OF 2023

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BETWEEN:

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S.N. LADHANI, AGED ABPUT 83 YEARS, S/O LATE B.MALL, RESIDING AT NO.12, 3^RD MAIN ROAD, BENSON TOWN, NEAR JAYAMAHAL PLAY GROUND, BANGALORE -560046

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… PETITIONER

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(BY SRI. PRAVEEN C., ADVOCATE)

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AND:

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VISHAL NINGAPPA PATTIHAL

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Digitally signed by VISHAL NINGAPPA PATTIHAL

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Date: 2023.09.25 10:53:56 +0530

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STATE OF KARNATAKA, BY JEEVAN BHIMA NAGAR POLICE STATION, BENGALURU-560075, R/BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560001.

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MOUNESHWAR, AGED ABOUT 40 YEARS, POLICE SUB-INSPECTOR OF POLICE, JEEVAN BHIMA NAGAR, BENGALURU-560001.

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… RESPONDENTS

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(BY SMT. YASHODHA K.P., HCGP)

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THIS CRL.P FILED U/S 482 CR.PC BY THE ADVOCATE FOR THE PETITIONER PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN S.C.NO.1164/2010 FOR AN ALLEGED OFFENCE P/U/S 338, 304 R/W 34 OF IPC, ON THE COMPLAINT OF MOUNESWHAR AGAINST THE PETITIONER, NOW PENDING ON THE FILE OF THE HON’BLE JUDGE IN LXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE AGAINST THE PETITIONER.

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

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ORDER

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The petitioner is before this Court calling in

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question the proceedings in S.C. No.1164/2010 registered for the offences punishable under Sections 338, 304 read

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with Section 34 of the IPC.

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Learned counsel for the petitioner submits that

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the issue in the lis stands covered by the judgment rendered by this Court in the case of all other accused. The judgment rendered in the case of reported in are as follows:

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“The petitioner is before this Court calling in question the proceedings in S.C.No.1164/2010 registered for offences punishable under Sections 304, 338 read with Section 34 of the IPC.

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2. Heard the learned counsel, Sri. Kempe Gowda C.M., appearing for the petitioners, Smt. K.P. Yashodha, learned HCGP appearing for the respondent and have perused the material on record.

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3. The learned counsel appearing for the petitioners submits that the issue in the subject lis stands covered, on all its fours by the judgment rendered in Crl.P.No.4726/2012 disposed on

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21.10.2021, which is not disputed by the learned HCGP. This Court in the said order, has held as follows: follows:

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“7. The petitioner is accused No.18 in S.C.No.1164 of 2010 pending before the Presiding Officer, Fast Track Court-XV, Bangalore. The reason for the petitioner being arraigned as an accused is the incident that occurred on 2302-2010 when the fire broke out in Carlton Towers, a commercial complex in the City of Bangalore which took 9 lives and left 70 injured. The petitioner is arrayed as an accused as he is the Director of the Company.

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8. The Company which had its office in the same Towers had entered into an agreement for annual maintenance and house-keeping at Carlton Towers with the Carlton Towers Owners Association. The agreement was entered into on 01-05-2009 and it was an annual maintenance contract. On 16-12-2009 M/s Shivaji Electricals was entrusted to rectify the defects in compliance with the Electrical Inspector’s report who had found certain defects in electrification. The defects were rectified by M/s Shivaji Electricals on 17-12-2009 and the same was communicated to the Electrical Inspector, Bangalore East Division under whose jurisdiction the building came.

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9. After the said job being entrusted to M/s Shivaji Electricals, the Carlton Towers Owners Association also communicated to the Electrical Inspector that the defects have been rectified by M/s Shivaji Electricals. This communication was sent on 15-02-2010. In the interregnum the petitioner travelled abroad i.e., to the United Kingdom on

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31-01-2010 and returned to India on 5-03-2010. A memo along with immigration details is also placed on record which would clearly depict that the petitioner was out of the country from 31- 01-2010 up to 5-03-2010.

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10. The fire mishap occurred on 23-02-2010. Admittedly the petitioner was not in the country at that point in time. A FIR came to be registered in Crime No.69 of 2010 against 20 accused for offences punishable under Sections 338, 304(A) and 304 read with Section 34 of the IPC. A report was called for from the Deputy Chief Electrical Inspector with regard to the incident. The Deputy Chief Electrical Inspector submits his report on 1- 03-2010 opining that if electrical instruments had been maintained in a sustainable condition when electrical arcing occurred and paper, cloth pieces and other material which are vulnerable to fire were not dumped into the cable duct and also other precautions had been taken the fire could have been avoided. This had led to the fire mishap. The report reads as follows:

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" III C¥WÁvÀ zÀ §UÀ Î C©ü¥ÁæAiÉ Ä:À

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vÀ¤SÁ¢üPÁjUÀ¼ÀÄ ¸À°è¹gÀÄªÀ ªÀgÀ¢ ¥ÀæPÁgÀ ¸Àzj À PÀlÖqÀzÀ°è ªÉÆzÀ®£ÉÃ CAvÀ¹Û£À°è PÁAiÀÄð¤ªÀð»¸ÀÄwÛgÀÄªÀ ªÉÄ: mÉPÉÆß«ÄPï ¸ÁÜªÀgÀPÉÌ «zÀÄåvï ¸ÀgÀ§gÁdÄ PÀ°¹gÀÄªÀ 4 C + 50 Sq.mm aluminium Armoured calbe , PÉÃ§¯ï qÀPïÖ£À JAnæ ¥Á¬ÄAmï¤AzÀ ¸ÀÄªÀiÁgÀÄ 1 jAzÀ 2 CrAiÀÄ CAvÀgÀzÀ°è PÉÃ§¯ï C£ÀÄß J¼ÉAiÀÄÄªÀ ¸ÀªÀÄAiÀÄzÀ°è Internal conductor fracture ¤AzÀ CxÀªÁ conductor deterioration ¤AzÀ CxÀªÁ abrasion ¤AzÀ QëÃtÂ¹zÀÄÝ,

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NC: 2023:KHC:34360 CRL.P No. 7592 of 2023

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PÁ®PÀæªÉÄÃt CªÀgÀ «zÀÄåvï PÁåj¬ÄAUï ±ÀQÛAiÀÄÄ PÀrªÉÄAiÀiÁV «zÀÄåvï ¥ÀæªÀ»¸ÀÄwÛgÀÄªÀ vÀAw ºÁUÀÆ ¥ÀPÀÌzÀ UËAqÉqï ¯ÉÆÃºÀzÀ ¨sÁUÀPÉÌ ( Cable Armour ) DQðAUï DV ¨ÉAQ GAmÁVzÀÄÝ, CzÉÃ ¸ÀAzÀ¨sÀðzÀ°è PÉÃ§¯ï qÀPïÖ£À°è ±ÉÃRgÀuÉAiÀiÁVzÀÝ ¥ÉÃ¥Àgï ¦Ã¸ïUÀ¼ÀÄ, §mÉÖ vÀÄAqÀÄUÀ¼ÀÄ, ºÁUÀÆ EvÀgÉÀ ¸ÀÄ®¨sÀªÁV ¨ÉAQAiÀiÁV DºÀÄwAiÀiÁUÀÄªÀ EvÀgÉ ªÀ¸ÀÄÛUÀ¼ÀÄ ¸ÉÃjPÉÆAqÀÄ, ¨ÉAQAiÀÄ wÃªÀðvÉAiÀÄ£ÀÄß ºÉaÑ¹zÀÄÝ, F ¨ÉAQAiÀÄÄ EvÀgÉ PÉÃ§¯ïUÀ¼À E£ÀÄì¯ÉÃ±À£ïUÀ¼À£ÀÄß ¸ÀÄnÖzÀÄÝ, EzÀjAzÀ CwAiÀiÁzÀ PÁ§ð£ï ºÉÆUÉAiÀÄÄ GvÀàwÛAiÀiÁVzÀÄÝ, F PÁ§ð£ï ºÉÆUÉAiÀÄÄ PÉÃ§¯ï ªÀÄÄSÁAvÀgÀ ºÉÆgÀUÉ ºÉÆÃUÀ®Ä CªÀPÁ±À«®èzÉ, PÉÃ§¯ï qÀPïÖ£À°è ±ÉÃRgÀuÉUÉÆArzÀÄÝ, ºÁUÀÆ wÃªÀðvÉAiÀÄÄ eÁ¹ÛAiÀiÁV PÉÃ§¯ï , qÀPÀÖ ¨ÁV®ÄUÀ¼À£ÀÄß QvÀÄÛPÉÆAqÀÄ ºÉÆgÀUÉ §AzÀÄ, ºÉÆUÉAiÀÄÄ J¯ÁèªÀÄºÀrUÀ¼À®Æè «¹Ûj¹zÀÄÝ, «±ÉÃµÀªÁV 6 ªÀÄvÀÄÛ 7 ªÀÄºÀrAiÀÄ°è §ºÀ¼ÀµÀÄÖ vÀÄA©PÉÆArzÀÄÝ, PÀlÖqÀzÀ°èzÀÝ d£ÀgÀÄ EzÀ£ÀÄß £ÉÆÃr UÁ§j¥ÀnÖgÀÄªÀÅzÀjAzÀ F CªÀWÀqÀPÉÌ PÁgÀtªÁVgÀÄvÀÛzÉ.

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¸ÀzÀj PÀlÖqÀzÀ ¤ªÁðºÀPÀgÀÄ / ªÀiÁ°ÃPÀgÀÄUÀ¼ÀÄ ¨ÉAQ CªÀWÀqÀ ¸ÀA¨sÀ«¸À®Ä PÁgÀtªÁzÀ electrical Arcing GAmÁzÀ ¸ÀªÀÄAiÀÄzÀ°è «zÀÄåvï ¸ÀÄgÀPÁë G¥ÀPÀgÀtUÀ¼À£ÀÄß ¸ÀÄ¹ÜwAiÀÄ°è ElÄÖ PÁAiÀÄð¤ªÀð»¸ÀÄªÀAvÉ £ÉÆÃrPÉÆArzÀÝgÉ ºÁUÀÆ PÉÃ§¯ï qÀPïÖ C£ÀÄß ¸ÀéZÀÒªÁV ElÄÖPÉÆArzÀÄÝ ¨ÉAQUÉ DºÀÄwAiÀiÁUÀÄªÀAvÀ ¥ÉÃ¥Àgï ªÀÄvÀÄÛ §nÖ ¦Ã¸ïUÀ¼ÀÄ ªÀÄvÀÄÛ EvÀgÉ ªÀ¸ÀÄÛUÀ¼ÀÄ C°è ±ÉÃRgÀuÉAiÀiÁUÀzÀAvÉ £ÉÆÃrPÉÆArzÀÝgÉ ªÀÄvÀÄÛ ªÀÄÄ£ÉßZÀÑjPÉ PÀæªÀÄ vÉUÉzÀÄPÉÆAqÀÄ J¯Áè vÀÄvÀÄð ¤UÀðªÀÄ£ÀzÀ ¨ÁV®ÄUÀ¼À£ÀÄß vÉgÉ¢lÄÖ ºÁUÀÆ PÁjqÁgïUÀ¼À°è ¸Áé¨sÁ«PÀ UÁ½ ¨É¼ÀPÀÄUÀ½UÉ ªÀåªÀ¸ÉÜ ªÀiÁrzÀÝ°è F CªÀWÀqÀªÀ£ÀÄß vÀ¦à¸À§ºÀÄzÉAzÀÄ C©ü¥ÁæAiÀÄ¥ÀqÀ¯ÁVzÉ.”

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After all the aforesaid events, charge sheet is also filed by the Police in which the petitioner is arrayed as accused No.18 and an additional charge sheet is filed against one Sri Suresh Kumar S.K., Proprietor of the Company arraigning him as accused No.21.

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11. It is not in dispute that among the accused, one of them had approached this Court i.e., accused No.3 one Mr. T.G. Mandanna in Criminal Petition No.769 of 2011 under Section 482 of the Cr.P.C. This Court by its order dated 21-02-2011 holding that the petitioner therein was not the owner of any of the units in the building, allowed the petition by observing as follows:

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"3. Learned Counsel for the petitioner submitted that though there are 20 persons named in the charge sheet, the petitioner herein was not the owner of any one of the apartments, but on the other hand, he is the coopted treasurer of the Carlton Towers Owner’s Association. He further submits that nothing is stated in the charge sheet filed against the petitioner that he is the owner of the apartments of the said building and is responsible for the mishap that took place and as such, the question of the petitioner being proceeded with does not arise. Referring to the contents of the charge sheet, submission made is that reason for the fire said to have been not taking proper precautions by the building owners and as such, this petitioner is nothing to do with the maintenance of the building as he was only the treasurer who is looking after the account matters.

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4. Having thus heard the petitioner’s Counsel and

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after going through the charge sheet material, though there are 20 accused persons named in the charge sheet, except this petitioner, others according to the petitioner’s Counsel are the owners of the building. Therefore, having regard to the nature of the incident that took place on the aforementioned date and the charge sheet also putting the blame entirely on the building owners being negligent in taking necessary precautions to prevent the occurrence of fire in the building, in my view, continuation of proceedings as far as this petitioner is concerned is not warranted as there are no specific mention in the charge sheet against this petitioner attracting the aforesaid offence.

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5. For the above said reasons, petition is allowed and proceedings against this petitioner in S.C.No.1164/10 pending on the file of the Presiding Officer, FTC-XV (Sessions), Bangalore, stands quashed. But, however as regards the other accused persons are concerned, i.e., accused Nos.1, 2 & 4 to 20, the trial court shall proceed with the matter in accordance with law." The subject petition has to be now considered on the grounds that are urged by the petitioner on the facts that are narrated hereinabove.

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12. It is not in dispute that the petitioner is one of the Directors of the Company and the Company is not arrayed as an accused. The Company not being arrayed as one of the accused and only the Director of the Company being arrayed, the complaint cannot be maintainable and the proceedings cannot be continued in the light of the law laid down by the Three Judge Bench of the Apex Court in the case of ANEETA HADA v. GODFATHER TRAVELS AND TOURS PRIVATE

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LIMITED – (2012) 5 SCC 661. Therefore, the complaint against the petitioner who is the Director of the

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Company without arraigning the Company as a party was not even maintainable.

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13. The allegations against the petitioner in the charge sheet are for offences punishable under Sections 304 and 338 of the IPC. This Court in identical circumstances in the case of MELVIN KUMAR AND OTHERS v. K.S. HARISHA AND ANOTHER (Crl.P.No.2619 of 2014 decided on 31^st January 2019) which concerned offences punishable under Section 304A read with Section 34 of the IPC against several accused who were teachers of Mother Theresa School who had taken the children studying 3^rd , 4^th and 5^th standards for a school picnic at Residency Holiday Resort and the students got drowned in the swimming pool, a complaint was registered against the owner or the management, the Head Master as well as the Manager of Residency Holiday Resort. The teachers of the school who had been arrayed as accused had approached this Court in Criminal Petition No.2619 of 2014 for offences punishable under Section 304- A of IPC. This Court after considering the purport of Section 304-A of IPC which deals with causing death by negligence has held as follows:

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"12. Viewed from another angle, in order to fasten criminal liability for the offence under section 304A of Indian Penal Code, the prosecution is required to prove that the act of the accused was the proximate and immediate cause of death and that the death was caused without the intervention of another person’s negligence. As held in SUSHIL ANSAL’s case, supra, it must have been the causa causans; and not mere causa

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sine qua non.

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14. In Kurban Hussein Mohamedalli Bangawalla’s case, referred to supra, the allegation against the appellant therein was that he allowed the burners to be used in the same room in which varnish and turpentine were stored, which were alleged to be negligent act and fire resulted because of the proximity of the burners. But the said contention was not found favour with the Hon’ble Supreme Court in view of the above proposition of law.

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17. The law casts a higher degree of care on the occupiers of the building or premises wherein visitors or the licensees are allowed to use the facilities provided therein. What is the degree of care expected from the occupiers of a Cinema building came up for consideration of the Hon’ble Supreme Court in the case of SUSHIL ANSAL, referred to above. In paragraph No.95 thereof, it is observed thus:

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“What is the degree of care expected from the occupier of a cinema is the next question to which we must advert at this stage. Two fundamental principles must be noticed at the threshold while answering that question. The first is that the degree and nature of care expected of an occupier depends upon the fact situation in which the duty to care arises. The second and equally important principle at common law is that the degree of care in a given fact situation would depend upon whether the person to whom the duty is owed is a contractual visitor, invitee, licensee or trespasser. Of these the occupier owes the highest degree of care to a contractual visitor viz., a person who pays consideration to be present on the premises for some

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purpose; whatever that purpose be. At common law there is an implied term in the contract between the occupier and the visitor that the occupier’s premises shall be reasonably safe. The occupier’s duty must be held to have been breached if any injury is caused to a contractual visitor by any defect in the premises apart from a latent defect.” "

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On the aforesaid reasoning, the criminal petition was allowed and the proceedings against those teachers were quashed.

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14. In an yet another circumstance, this Court in the case of M.SRINIVAS v. STATE – (Criminal Petition No.9124 of 2016 decided on 15^th February 2019) again considering offences punishable under Section 304A of IPC in a case where the allegations against the petitioner therein who was a Supervisor-Engineer of M/s Malu Constructions (India) Private Limited which was executing works in terms of a work order issued by the Bangalore Water Supply and Sewerage Board pertaining to laying down of water pipes had negligently left a heap of mud on the road without taking precautionary measures leading to accident which resulted in death of a rider of a motorcycle and the allegation against the said Supervisor Engineer was for offences punishable under Section 304-A of IPC inter alia. This Court allowed the criminal petition holding as follows:

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"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

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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 in (2005) 6 SCC

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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:

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“(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 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.

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(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’.”

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12. xx xx xx xx

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13. It is now well settled that, in order to fasten criminal liability for the offence under section 304A of Indian Penal Code, the prosecution is required to establish that the act of the accused No.1 was the proximate and immediate cause of death

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and that the death was caused without the intervention of another person’s negligence. As held in SUSHIL ANSAL’s case, supra, it must have been the causa causans; and not mere causa sine qua non.

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14. In the instant case, petitioner herein is implicated in the alleged offence on the allegation that he was responsible for causing the accident by leaving heap of mud on the accident site. In Kurban Hussein Mohamedalli Rangawalla, supra, the Hon’ble Supreme Court dealt with an identical situation. In the said case, the allegation against the appellant therein was that he allowed the burners to be used in the same room in which varnish and turpentine were stored, which were alleged to be negligent act and fire resulted because of the proximity of the burners. But the said contention was negatived by the Hon’ble Supreme Court by endorsing the view taken in EMPEROR vs. OMKAR RAMPRATAP in (1902) 4 Bombay LR 679, the Hon’ble Supreme Court has observed that,

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“This view has been generally followed by High Courts in India and is in our opinion the right view to take of the meaning of S.304-A. It is not necessary to refer to other decisions, for as we have already said this view has been generally accepted. Therefore, the mere fact that the fire would not have taken place if the appellant had not allowed burners to be put in the same room in which turpentine and varnish were stored, would not be enough to make him liable under S.304-A, for the fire would not have taken place, with the result that seven persons were burnt to death, without the negligence of Hatim. The death in this case was, therefore, in our opinion not directly the result of a rash or negligent act on the part of the appellant and was not the proximate and efficient

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cause without the intervention of another’s negligence. The appellant must, therefore, be acquitted of the offence under S.304-A.”

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15. In the instant case also, the proposition laid down in the above decision, in my view, is squarely applicable to the facts of this case. A plain reading of the charge-sheet discloses that the material allegations constituting negligence are directed only against accused No.1. The material on record indicates that the deceased died on account of the rash and negligent act of accused No.1 in hitting the motorcycle driven by the accused. Therefore, the act of accused No.1 was the proximate and immediate cause of death of the deceased. The act of the petitioner/accused No.2 in leaving heap of mud on the road may amount to an offence under section 134 of Indian Motor Vehicles Act, but the same does not amount to an act of negligence within the meaning of section 304A of Indian Penal Code. Thus, on consideration of all the above facts and circumstances of the case, in the light of the law applicable to the facts of this case, I am of the clear opinion, that petitioner/accused No.2 cannot be proceeded for negligence in causing the death of the deceased within the meaning of Sections 304A and 279 of Indian Penal Code. Consequently, the prosecution of the petitioner being illegal, the same amounts to abuse of process of Court.

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As a result, the petition is allowed. The proceedings initiated against the petitioner in C.C.No.10878/2016 pending on the file of Metropolitan Magistrate Traffic Court-III, Bengaluru is hereby quashed."

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Therefore, the offence of Section 304A of IPC alleged against the petitioner who is the Director of

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the Company and was not present at the place of incident and the negligence attributable to accused No.21, the petitioner cannot be prosecuted or trial cannot be continued against the petitioner for the said offence of Section 304A of IPC. Section 338 of IPC which is the other offence alleged against the petitioner deals with causing grievous hurt by act endangering life or personal safety of others and reads as follows:

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“338. Causing grievous hurt by act endangering life or

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personal safety of others .—Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.”

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The section makes it clear that whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life shall be punishable in terms of law. There is no act committed by the petitioner which attracts Section 338 of the IPC.

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15. In the light of the judgment of the Apex Court in the case of ANEETA HADA and the law laid down by this Court in the afore-extracted judgments, the petitioner cannot be held to be responsible for the act of other accused. Therefore, continuance of the proceedings against the

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petitioner would result in miscarriage of justice and be an abuse of the process of law.”

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4. In the light of the aforesaid order passed in Crl.P.No.4726/2012 covering the issue, on all its fours, the subject criminal petition is allowed and the proceedings in S.C.No.1164/2010 pending before the LXIX Additional City Civil and Sessions Judge, Bengaluru, stands quashed, qua the petitioners.”

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