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Judgment
By the present Petition, under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (for short, “CrPC”) (now 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023), the Petitioner seeks to quash and set aside FIR bearing C.R. No. 7 of 2018 registered with Gamdevi Police Station on 11th January 2018, under sections 304 Part II and 338 read with 34 of the Indian Penal Code (for short, “IPC”), and the resultant chargesheet filed before the learned Metropolitan Magistrate, 40th Court, Girgaon in Sessions Case No. 708 of 2018.
Heard Mr. Karan Kadam Learned Advocate for the Petitioner, Mr. Tanveer Khan, A.P.P for Respondent -State.
Briefly stated allegations in the FIR are as under:
3.1) The FIR dated 11th January 2018 filed by Respondent No.2 alleges that, the incident took place when repairs were being undertaken in respect of a standalone garage which was adjacent to a building known as Sea Side, situated at BD Road, Mumbai. That, when the repair work of the slab of the garage i.e. repairing Dambar Patti was being undertaken, the slab suddenly collapsed. That, when enquiry was made with the owner of the garage, he informed that, as the garage structure needed repair, he had contracted the repair work to Spectrum Decor.
3.2) Prior to the incident the work was being carried out by three labourers. That, the work was being undertaken over a period of three days under the supervision of the Petitioner. That, on the day of the incident two workers were removing the tar sheets (Dambar Patti) on the slab and one worker was scraping the walls inside the garage. That, while the work was ongoing, the slab of the garage suddenly caved in and collapsed. The two workers who were removing tar sheets got trapped inside the debris. On the debris being removed, the workers were immediately taken to the hospital. That, out of the two workers, one worker Mr. Yogendra J. Ram expired in the hospital. The other worker was seriously injured to whom treatment was administered.
3.3) That, while undertaking the work, no safety tools/aids were given to the labourers, nor was any wooden or iron support provided beneath the slab. Respondent No.2 has contended that, the owner of the building had not conducted any structural audit of the building and that the said fact was not informed to the contractor/Petitioner.
3.4) In this background the present FIR bearing C.R. No. 7 of 2018 came to be registered on 11th January 2018 under sections 304 Part II, 338 read with 34 of the Indian Penal Code and the resultant chargesheet filed before the learned Sessions Court, 58th Court, Mumbai as Sessions Case No. 708 of 2018.
Mr. Karan Kadam, learned Advocate appearing for the Petitioner submits that:-
4.1) The offences as alleged and for which the Petitioner is charged are not at all made out from the contents of the said FIR. The Petitioner was appointed by the original Accused No.2/the owner of the garage, for carrying out the repair work i.e. waterproofing, plastering, and painting of the garage. The Petitioner was directed to replace the tar sheet (Dambar Patti) on the slab of the garage.
4.2) The Petitioner and his workmen commenced work on 8th January 2018 and continued to work for three days i.e. from 8th January 2018 to 10th January 2018, without any obstacle or difficulty. The Petitioner himself was present at the site. That, on 11th January 2018, at about 1.10 p.m., two workers were working on the roof of the garage for removing the tar sheet and one worker was working inside the garage. That, the roof of the garage caved in and collapsed, resulting in the workers falling down and getting seriously injured. Unfortunately, Mr. Yogendra J. Ram, one of the workmen, expired due to the injuries and Mr. Kishor Ramdhan Aade was injured.
4.3) The allegation against the Petitioner is that, he did not make adequate safety provisions for the workmen by putting steel/wooden support beneath the ceiling of the garage for support. The allegation is that, the Petitioner had knowledge that, in the event that such an untoward incident was to happen while replacing the tar sheet on the roof of the garage, the workers would be severely injured. It is on this basis that, the offences punishable under Section 304 Part II, 338 read with 34 of the IPC are alleged to be made out.
4.4) The alleged acts attributed to the Petitioner is of not providing adequate safety measures and not putting steel/wooden support to hold up the ceiling at the time of replacing the Dambar Patti of a garage structure. Neither of the said acts are such acts which can be construed as positive acts amounting to culpable homicide, which is an essential ingredient required to attract an offence under Section 304 Part II of the IPC. To attract an offence under Section 304 Part II, some positive act on the part of the accused is required. A mere omission, inaction, or lapse cannot be the basis of invoking the provisions of Section 304 Part II.
4.5) Perusal of the chargesheet would indicate that, there is no material at all available on the record which would indicate that, the Petitioner had knowledge that, the workmen who were replacing the tar sheets on the roof of the garage were likely to get injured or die due to not putting up steel supports or not putting up adequate safety measure.
4.6) There is nothing on record to indicate that, the Petitioner was made aware of the purported poor condition of the garage. That, though the owner was made a co-accused (Accused No.2) in the proceedings, the Investigating Officer has closed the investigation against him on the ground of insufficient evidence.
4.7) It is not the case in the chargesheet against the Petitioner that, the said owner of the structure had informed the Petitioner of the poor condition of the garage. That, having chosen to close the investigation against the owner of the garage, the prosecution against the Petitioner cannot be continued, more particularly when there is no material on record to indicate that, the Petitioner was told or informed of the condition of the building.
4.8) The Petitioner himself was at the garage for 3 to 4 days prior to the unfortunate incident when work was being carried out. Considering the conduct of the Petitioner, it cannot by any stretch of imagination be inferred that, the Petitioner had knowledge of the condition of the building and had still taken up the job and continued without taking precautions etc.
Mr. Tanveer Khan, learned APP appearing for the Respondent-State submits that:-
5.1) The perusal of the statement of Mr. Kishor Ramdhan Aade and Mr. Rajeev Navin Shaha would indicate that, the Petitioner being aware of the condition of the building, chose not to take any safety precautions and continued the work. That, the Petitioner has been charged under Section 304 Part II of the IPC. The Section also includes a negligent act, not providing safety tools or not putting steel/wooden support to hold up the ceiling clearly makes out a case of negligence.
5.2) No structural audit was carried out in respect of the said structure.
5.3) The offences are serious and considering the facts of the matter this Court may not exercise powers under Section 482 of the CrPC.
Before proceeding to consider the facts of the matter, it would be useful to refer certain Judgments of the Hon’ble Supreme Court on the issue involved in the present case.
6.1) The Hon’ble Supreme Court in the case of Keshub Mahindra Vs. State of MP, reported in (1996) 6 SCC 129 has observed that:
“20.… A look at Section 304 Part II shows that the accused concerned can be charged under that provision for an offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act of the accused concerned is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death the charged offences would fall under Section 304 Part II. However before any charge under Section 304 Part II can be framed, the material on record must at least prima facie show that the accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide. However, if the material relied upon for framing such a charge against the accused concerned falls short of even prima facie indicating that the accused appeared to be guilty of an offence of culpable homicide Section 304 Part I or Part II would get out of the picture. In this connection we have to keep in view Section 299 of the Penal Code, 1860 which defines culpable homicide. It lays down that:
“Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” Consequently, the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. The entire material which the prosecution relied upon before the trial court for framing the charge and to which we have made a detailed reference earlier, in our view, cannot support such a charge unless it indicates prima facie that on that fateful night when the Plant was run at Bhopal it was run by the accused concerned with the knowledge that such running of the Plant was likely to cause deaths of human beings. It cannot be disputed that mere act of running a Plant as per the permission granted by the authorities would not be a criminal act. Even assuming that it was a defective Plant and it was dealing with a very toxic and hazardous substance like MIC the mere act of storing such a material by the accused in Tank No. 610 could not even prima facie suggest that the accused concerned thereby had knowledge that they were likely to cause death of human beings. In fairness to the prosecution, it was not suggested and could not be suggested that the accused had an intention to kill any human being while operating the Plant. Similarly on the aforesaid material placed on record it could not be even prima facie suggested by the prosecution that any of the accused had a knowledge that by operating the Plant on that fateful night whereat such dangerous and highly volatile substance like MIC was stored they had the knowledge that by this very act itself they were likely to cause death of any human being. Consequently in our view taking the entire material as aforesaid on its face value and assuming it to represent the correct factual position in connection with the operation of the Plant at Bhopal on that fateful night it could not be said that the said material even prima facie called for framing of a charge against the accused concerned under Section 304 Part II IPC on the specious plea that the said act of the accused amounted to culpable homicide only because the operation of the Plant on that night ultimately resulted in deaths of a number of human beings and cattle. …In this connection we may refer to a decision of the Calcutta High Court to which our attention was drawn by the learned Senior Counsel, Shri Rajendra Singh for the appellants. In the case of Adam Ali Taluqdar v. King-Emperor [AIR 1927 Cal 324 : 31 CWN 314 : 28 Cri LJ 334] a Division Bench of the Calcutta High Court made the following pertinent observations while interpreting Section 304 Part II read with Section 34 IPC:
“Although to constitute an offence under Section 304, Part 2, there must be no intention of causing death or such injury as the offender knew was likely to cause death, there must still be a common intention to do an act with the knowledge that it is likely to cause death though without the intention of causing death. Each of the assailants may know that the act, they are jointly doing, is one that is likely to cause death but have no intention of causing death, yet they may certainly have the common intention to do that act and therefore Section 34 can apply to a case under Section 304, Part 2.” Once we reach the conclusion that the material produced by the prosecution before the trial court at the stage of framing of charges did not even prima facie connect the accused with any act done with the knowledge that by that act itself deaths of human beings would be caused the accused could not be even charged for culpable homicide and consequently there would be no question of attracting Section 304 Part II against the accused concerned on such material. When on the material produced by the prosecution no charge could be framed against any of the accused under Section 304 Part II there would remain no occasion to press in service the applicability of Section 34 IPC in support of such a charge for those accused who were not actually concerned with the running of the Plant at Bhopal, namely, Accused 2, 3, 4 and 12.”
6.2) The Hon’ble Supreme Court in the case of Shantibhai Vaghela Vs. State of Gujarat, reported in (2012) 13 SCC 231 has observed that:
“25.Commission of the offence of culpable homicide would require some positive act on the part of the accused as distinguished from silence, inaction or a mere lapse. Allegations of not carrying out a prompt search of the missing children; of delay in the lodging of formal complaint with the police and failure to take adequate measures to guard the access from the ashram to the river, which are the principal allegations made in the FIR, cannot make out a case of culpable homicide not amounting to murder punishable under Section 304 IPC. To attract the ingredients of the said offence something more positive than a mere omission, lapse or negligence on the part of the named accused will have to be present. Such statements are conspicuously absent in the FIR filed in the present case.”
6.3) The Hon’ble Supreme Court in the case of Yuvraj Laxmilal Kanther Vs. State of Maharashtra, reported in (2025) SCC OnLine SC 520 has observed that:
12.1.The ingredients constituting an offence under Section 304 Part II IPC are as follows:
(i)he must commit culpable homicide not amounting to murder;
(ii)the act must be done with the knowledge that it is likely to cause death;
(iii)but such act is done without any intention to cause death or to cause such bodily injury as is likely to cause death.
12.2.Therefore, the first important expression is ‘culpable homicide not amounting to murder’. Culpable homicide is defined in Section 299 IPC. It says that whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
12.3.All culpable homicides are murders except in the cases excepted under Section 300 IPC. Thus, except the cases specifically exempted under Section 300 IPC, all other acts within the meaning of Section 299 IPC would amount to committing the offence of culpable homicide. However, what is important to note is that for committing the offence of culpable homicide, a positive act must be done by the doer with the intention that such act would cause death or cause such bodily injury as is likely to cause death or he having the knowledge that by such an act, death may be caused. What, therefore, is significant is that the doer of the act must have the intention of causing death or the intention of causing such bodily injury as is likely to cause death or has the knowledge that by doing such an act he is likely to cause death. Therefore, to commit the offence of culpable homicide, intention or knowledge is of crucial importance.
12.4.Coming back to Section 304 Part II IPC, we find that the said section would be attracted if anyone commits culpable homicide not amounting to murder if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. Therefore, the requirement of Section 304 Part II IPC is that the doer must have the knowledge that the act performed is likely to cause death or to cause such bodily injury as is likely to cause death but without any intention to cause death. Thus, the basic ingredient of Section 304 Part II IPC is presence of knowledge and absence of intention. The doer must have the knowledge that the act performed by him would likely cause death etc. but there should not be any intention to cause death.
13.This being the legal framework, let us now deal with the charge against the appellants taking the same as correct. According to the prosecution and accepted by the Trial Court and the High Court, the two accused persons had not taken proper care and caution by providing safety shoes, safety belt etc. to the two employees though they were asked to perform the job of working on the sign board as part of decorating the front side of the shop which was approximately at a height of 12 feet from the ground level. The accused persons had provided only an iron ladder to the two employees but while working they were struck by electricity as a result of which they suffered electrocution and fell down. They suffered multiple injuries which led to their death. Therefore, both the accused persons were declared to be responsible for the unnatural death of the two deceased employees.
14.Even if we take the allegation against the appellants as correct, we are afraid no prima facie case can be said to have been made out against the appellants for committing an offence under Section 304 Part II IPC. From the record of the case, it is evident that there was no intention on the part of the two appellants to cause the death or cause such bodily injury as was likely to cause the death of the two deceased employees. It cannot also be said that the appellants had knowledge that by asking the two deceased employees to work on the sign board as part of the work of decoration of the frontage of the shop, they had the knowledge that such an act was likely to cause the death of the two deceased employees. As such, no prima facie case of culpable homicide can be said to have been made out against the appellants. If that be so, the subsequent requirement of having knowledge that the act was likely to cause the death but not having any intention to cause death would become irrelevant though we may hasten to add that nothing is discernible from the record of the case that the appellants had the knowledge that by asking the two employees to work on the sign board would likely cause their death or cause such bodily injury as is likely to cause their death.
Perused the entire record. A perusal of the statement of the complainant would itself indicate that, the Petitioner was not informed, nor aware, nor had any knowledge that the garage structure was in a dilapidated condition or was structurally unstable. What was carried out were normal repairs to the garage structure i.e. replacing Dambar Patti, painting, water proofing, plastering and repair to the ceiling and beams. This fact has been brought on record by the complainant himself. At the same time, it would be necessary to note that, the owner of the garage though was accused at the first instance in the FIR, the investigation was closed against him for lack of evidence.
7.1) Pertinent to note that, the FIR itself proceeds on the basis that, the owner had not informed the Petitioner about any structural audit nor was any information given to the Petitioner in respect of the condition of the building. The record indicates that, at the time of the incident the work assigned to the labourer was that of only removing of the tar sheets (Dambar Patti) on the slab/roof of the garage. The record indicates that, on the day of the incident, when the work was ongoing, suddenly the slab collapsed and both workers fell down. After the incident, the injured were immediately taken to JJ Hospital. Unfortunately, one of the workers later succumbed to the injuries.
7.2) Perusal of the record i.e. material documents, statements and chargesheet do not indicate any fact, nor is there any material on record that would indicate that the Petitioner had knowledge of the dilapidated condition of the garage or any knowledge of the structural stability of the garage. The investigation record indicates that, no structural audit was carried out by the owner. As noted earlier, the case against the owner of the garage has been closed on the ground of insufficient evidence.
7.3) Perusal of the section invoked i.e. Section 304 Part II of the IPC would indicate that, the essential ingredient for invoking Section 304 Part II is that the act complained of should have been done with the knowledge that the said act is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. In the present case, I find that there is no positive act on the part of the Petitioner. As far as the question of knowledge is concerned, it is the case of the Investigating Officer/prosecution itself that, the Petitioner was not informed of the structural stability or the fact that a structural audit was done, nor was any such report provided to him. The record prima facie indicates that, the Investigating Agency has itself not attributed any knowledge to the Petitioner. Further considering the nature and scope of the work assigned in this matter it is difficult to attribute knowledge to the Petitioner that the act of changing the Dambar patti was likely to cause death or grievous injuries, etc.
The allegation against the Petitioner is that wooden or iron scaffolding was not erected. Perusal of the spot panchnama does not indicate the height of the said garage. Considering the normal height of a car garage, carrying out the work of removing the dambar patti from a 5 inch concrete slab of a car garage cannot be considered as a highly dangerous activity or work. In view of the nature of the repair work undertaken in the present case, it cannot be inferred that, the Petitioner had any knowledge that the act would cause any serious damage or injury. Considering the same, it prima facie appears that, there is no material on record to infer or allege that scaffolding would be essentially required or that based on the said alleged omission it can be inferred that the Petitioner had any knowledge that the said act of changing the Dambar Patti is likely to cause death. In the present case, it would also be necessary to consider and keep in mind the fact that, when the unfortunate incident occurred, the only work assigned to the workers was putting up a new tar sheets (Dambar Patti) on a concrete slab/roof and nothing more. By considering the aforesaid facts, it appears that, no prima facie case is made out against the Petitioner.
To invoke section 304 Part II of the IPC, it was at least required on the part of the prosecution to show that, the Petitioner had knowledge of the structural stability or instability of the building so as to impute knowledge in some manner at least that even the act of changing the tar sheets (Dambar Patii) should be considered as dangerous. I find that, there is no such allegation or contention in the FIR.
To make out a case under Section 338 of the IPC, it is required to be shown that, the act of the Petitioner was done in a rash and negligent manner so as to endanger the human life or personal safety of others and that the said act had resulted in causing grievous hurt. There is no material on record to prima facie indicate that, any act of the Petitioner was rash or negligent. The work which was being carried out at the relevant time was only of changing the old tar sheet (Dambar Patti), and when the said work was being carried out, the unfortunate incident has happened.
There is nothing on record as such which would indicate that, the present unfortunate incident would be anything more other than an accident. In the present case, there is no material to show that, the Petitioner had knowledge that the act of removing the Dambar Patti or even repairing the garage was likely to cause death or such bodily injury that would cause death but without any intention to cause death. The primary ingredient of Section 304 Part II is knowledge which is not even attributed to the Petitioner. It is not the case of intention. Even if the allegations as made in the FIR are taken as they are on a prima facie basis, no case is made out against the Petitioner for committing an offence under Section 304 Part II of the IPC. There is no material which would indicate that, the Petitioner had any intention to cause any bodily injury to the workers. The present case is a case of a repair contract in the normal course of the business and employment. Carrying on repair work cannot by any stretch of imagination be termed as an ingredient so as to infer knowledge to the Petitioner as is required under Section 304 Part II of the IPC. In my opinion, no prima facie case under Section 304 Part II of the IPC can be said to have been made out against the present Petitioner.
To attract charges under Section 304 Part II of the IPC, there has to be a positive act. Mere omission or negligence, without anything more, cannot be construed as an act that would come under Section 304 Part II of the IPC. In view of the aforesaid facts and circumstances, the FIR and the material in the chargesheet and taking into consideration the pronouncements of the Hon’ble Supreme Court, I am of the considered view that the alleged act of the Petitioner do not make out any case against the Petitioner. The facts, prima facie do not disclose the commission of offence under Section 304 Part II and 338 of the IPC.
The Hon’ble Supreme Court in the case of Yuvraj Laxmilal Kanther Vs. State of Maharashtra (supra) has observed that “Thus, the basic ingredient of Section 304 Part II IPC is presence of knowledge and absence of intention”. Having knowledge is the primary ingredient to attract the provisions of Section 304 Part II of the IPC. The knowledge that, the act was likely to cause death, but there should not be any intention to cause death. It is required that, the material on record must be prima facie indicates of the fact that, the accused is guilty of culpable homicide and the act should amount to culpable homicide. To amount to an act of culpable homicide, it is required that, there is a positive act, and not a mere omission or negligence without anything more. The act has to be a positive act, not a mere omission, or lapse. An act of taking a repair contract to replace Dambar Patti by employing labourers cannot be construed to be a positive act done with knowledge.
Considering the peculiar facts of the present case and the position that no knowledge is attributable to the Petitioner. I find it a fit and proper case to exercise the inherent power under Section 482 of the Code of Criminal Procedure and quash the FIR and the resultant chargesheet qua the Petitioner.
Petition is allowed in terms of prayer clause (c) and (d).