Elizebath Anne Nainan @ Elizabeth Anne Nainan Vs State of Karnataka

ELIZEBATH ANNE NAINAN @ ELIZABETH ANNE NAINAN W/O ABRAHAM BABY AGED ABOUT 53 YEARS RESIDING AT BETHEL, 20/138, 1ST CROSS GANDHINAGAR, MUNNEKOLLA BANGALORE-560037.

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…PETITIONER

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(BY SRI.VYSHAK P.N, ADVOCATE FOR SRI. BHARGAVA D BHAT, ADVOCATE)

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AND:

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Digitally signed by REKHA R Location: High Court of Karnataka

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STATE OF KARNATAKA REPRESENTED BY MARATHAHALLI POLICE STATION BENGALURU, REPRESENTED BY SPP HIGH COURT OF KARNATAKA HIGH COURT BUILDING BENGALURU-560001.

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RENJU P VARGHESE

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S/O C V PHILIPOSE AGED 46 YEARS RESIDENT OF FLAT NO.31 PEARL RESIDENCY APARTMENT

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NC: 2025:KHC:25643 CRL.P No. 5783 of 2022

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HC-KAR

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MUNNEKOLAL, MARATHAHALLI BANGALORE-560037.

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…RESPONDENTS

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(BY SRI.VINAY MAHADEVAIAH, HCGP FOR R1; R2 SERVED)

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THIS CRL.P IS FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO PASS APPROPRIATE ORDER OR DIRECTION TO QUASH THE PROCEEDINGS IN C.C.NO.50485/2022 ON THE FILE OF THE XXIX ACMM, BANGALORE FOR THE OFFENCES P/U/S 279,288,427,34 OF IPC IN SO FAR AS THE PETITIONER IS CONCERNED (AS PER ANNEXURE-A).

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THIS PETITION, COMING ON FOR DICTATING ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS. JUSTICE J.M.KHAZI

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ORAL ORDER

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This petitioner who is arraigned as accused No.1

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has filed this petition under Section 482 Code of Criminal Procedure to quash criminal proceedings against initiated against her for the for the offences punishable under Sections 279, 288, 427, r/w Section 34 of IPC in CC No.50485/2022 on the file of 29^th Additional CCM Court Bengaluru.

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HC-KAR

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In support of the petition, the petitioner has

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contended that the Section 279 of IPC prescrib

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punishment for an act of rash or negligent driving which is likely cause to endanger human life or cause hurt or

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injury to any other person. In the present case, the allegation against the petitioner and others are that while she was putting up construction, the compound wall to an extent of 80 feet in length of Perl residency apartment collapsed. There are no allegations of any rash or negligent driving of the vehicle in the public way and as such Section 279 of IPC is not attracted.

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The other offences alleged are punishable under Section 288-negligent conduct with respect to pulling down or repairing building and Section 427 of IPC-which mischief causing damage to the amount of Rs.50/-. Both these offences are non-cognizable. If Section 279 of IPC, which is a cognizable offence is not attracted, then the investigation officer was required to take permission from the Magistrate to conduct investigation. However, in the

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HC-KAR

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present case, investigation officer has not secured permission of the Magistrate and as such entire proceeding is vitiated and liable to be quashed. It appears only to over come the requirement of securing permission from the jurisdiction Magistrate, the investigation officer has cleverly included Section 279 of IPC which is cognizable offence. Hence, the proceedings are liable to be quashed.

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On the other hand learned High Court

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Government Pleader for respondent No.1 State, fairly conceded that Section 279 of IPC has no applicable to

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fact of the case and in the light of the same the investigation officer required take permission Section 155(2) of Cr.PC to conduct investigation, in the absence of the same, proceeding are vitiated. However, liberty may be reserved to secure permission from the jurisdictional magistrate and proceed with the matter.

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Heard arguments and perused the record.

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HC-KAR

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The specific allegation against the petitioner is that CW-1 to 4 are the owners of the apartment in Perl residency apartment. The petitioner is having her site adjoining the compound of Perl residency apartment. However, in order to construct in her site, despite caution given by complaint and others, the petitioner dug foundation trenches in such a manner without taking proper steps to prevent damage to the compound of Perl residency apartment. As a result of negligent act of the petitioner, 80 ft long compound wall of Perl residency apartment collapsed and caused loss of Rs.5 lakhs and thereby petitioner has committed offences under Sections 288 and 427 of IPC.

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The complaint averments attract provisions of offences punishable under Sections 288 and 427, which are non-cognizable in nature. Therefore, investigation officer was required to take permission from the jurisdictional Magistrate. It appears, to avoid the same, intentionally the investigation officer has added offence

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NC: 2025:KHC:25643 CRL.P No. 5783 of 2022

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HC-KAR

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punishable under Section 279 of IPC which is an offence of causing accident by rash or negligent driving or riding on a public way. If Section 279 of IPC is removed from consideration, then the remaining offences require taking permission of the jurisdictional magistrate since they are non-cognizable. Therefore, in the absence of taking permission from the jurisdiction Magistrate under Section 155(2) of Cr.P.C, the charge sheet is not tenable. Therefore, criminal proceedings initiated against the petitioner are liable to be quashed.

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However, liberty is reserved to the investigation officer to take necessary permission from the jurisdictional Magistrate under 155(2) Cr.P.C, and thereafter proceed with the investigation and file charge sheet if there are sufficient material to proceed against the petitioner.

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In the light of the above discussion, petitions deserves to be allowed and accordingly, the following:

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HC-KAR

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ORDER

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(i) Petition filed by the petitioner/accused under Section 482 Cr.P.C is hereby allowed.

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(ii) The criminal proceedings initiated against the petitioner/accused in CC No.50485/2022 on the file of XXIX Additional Chief Metropolitan Magistrate, Bengaluru is hereby quashed.

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(iii) However, liberty is reserved to the investigation officer to seek permission to conduct investigation against the petitioner/accused for the offences punishable under Section 288 and 427 of IPC.

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