GULIJEET SINGH KOCHAR Vs. STATE

JUDGEMENT

(1.) By this petition under Section 482 of the Criminal Procedure Code, 1973 (for short, 'the Code') petitioners have prayed for quashing of the order dated 15.7. 2004 passed by the Metropolitan Magistrate, Delhi summoning them to face trial for the offence under Section 304-A, IPC in the case FIR No.46/2003, P.S. Lodhi Colony, New Delhi.

(2.) Prosecution case briefly is as follows : On 15.4.2003, Niranjan Singh Tanti lodged a report to the Police, alleging that he and his brother Ram Dulare Kumar were working as labourers under Madan Lai, Contractor (hereinafter referred to as 'the contractor') who was constructing house No. 129, Jor Bagh, New Delhi (for short, 'the house')- The contractor had made a temporary passage for going to the basement out of old wooden planks without providing proper support. He was told that it was dangerous and some one can fall, he ignored the request and told them to work. On the fateful day, at about 4.00 p.m. his brother while carrying building material on his head, was going to the basement through that wooden passage; he fell down in the basement and received injuries and became unconscious. He was immediately removed to the hospital where he was declared dead. It is stated that Ram Dulare died because of rash and negligent act of the contractor. On this statement, above noted case was registered. The contractor was arrested and after completion of investigation, charge-sheet under Section 173, Cr.P.C. was filed; cognizance of the offence was taken and the accused was summoned. On 1.5.2004, learned Trial Court observed that in the agreement dated 2.1.2003 between the owner and the contractor, for construction of the building, there is no clause as to who would be responsible for any offence; that the owner had not signed the agreement and that the same could not be looked into; the Investigating Officer had not investigated the role of the owner of the property and that apparently even the owner of the house in question would be equally liable for the alleged offence. It was further observed that the SHO, as well as the ACP had not applied their mind while forwarding the challan and the same was forwarded in a very casual and non-serious manner as a matter of routine; they were directed to carry out further investigations and to submit the report before the next date of hearing Investigating Officer, SHO and DCP (South) were also directed to appear in the Court on the next date. The SHO in compliance of the order dated 1.5.2004, after further investigations, filed a report under Section 173(8), Cr.P.C, submitting therein that petitioners are doing business in the name and style of M/s. Amrita Moulding Pvt. Ltd. and that no evidence could be collected against them and that they are not in any manner responsible for the death of Ram Dulare Kumar.

(3.) The learned Trial Court by impugned order dated 15.7.2004 took cognizance against petitioner, summoning them for facing trial for the offence under Section 304-A, IPC observing. "It is clear as per the settled law that besides the contractor, even the owner of the property is equally liable for any criminal negligence, especially as in the present case, as the death of Ram Dulare Kumar is due to the negligence of the owner, as much as that of the contractor. There is no document placed on record either by the prosecution or the accused-Madan Lai, which could absolve the owner of any criminal liability which also points towards the negligence of the owner." It was further observed that "the owner of the property is under bounden obligation, as well as duty to ensure that while making construction of the property, no mishap or accident occurrs and no damage or harm comes to any person. The negligence of the owner has a direct nexus with the death of Ram Dulare Kumar, in the present case as the owner should have also taken the precaution to ensure that the construction at his property is carried out property and not dangerously or negligently." For reaching this conclusion reference was made to the judgment reported as Tarseem Chand v. State (Delhi Administration), 1885 Crimes (1) 948; and Kurban Hussein Mohamedali Rangwalla v. State of Maharashtra, AIR 1965 SC 1616 and Suleman Rehiman Mulani & Anr. v. State of Maharashtra, 1967 Criminal Appeal Reporter 141. This Order is under challenge. I have heard learned Counsel for the parties and have been taken through the record.