IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.06.2011 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM Crl.O.P.Nos.29210 and 29294 of 2010 and M.P.Nos.1+1 of 2010 1.Saifudeen Bharmal 2.Nishreen Bharmal 3.Juzer Bharmal 4.Ammar ... Petitioners in Crl.O.P.No.29210/2010 5.Srinivasan 6.Divan ... Petitioners in Crl.O.P.No.29294/2010 Versus State by The Inspector of Police, E-1, Mylapore Police Station, Law and Order, Chennai – 4. … Respondent in both W.Ps. (Cr.No.358/05) Prayer in both Crl.O.Ps.: Criminal Original Petition filed under section 482 of Criminal Procedure Code to call for the records in S.C.No.572 of 2010 on the file of the IV Additional Sessions Court, Chennai and quash the same. For Petitioners in Crl.O.P.No.29210/2010 : Mr.S.Baskaran in Crl.O.P.No.29210/2010 : Mr.P.Solomon Francis For Respondent : Mr.C.Balasubramanian in both Crl.OPs. Additional Public Prosecutor. https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioners in Crl.O.P.No.29210 of 2010, are the accused 1 to 4, in case pending in S.C.No.572 of 2010, on the file of the learned IV Additional Sessions Judge, Chennai. The petitioners in Crl.O.P.No.29294 of 2010 are the accused 5 and 6 in the same case. 2. The case arises out of an unfortunate incident that led to the death of five persons and injuries to four others. Torrential rains struck Chennai on 4th and 5th of April 2005 and a five storied building at Door No.62, Santhome High Road, which was undergoing renovation, collapsed, leading to the deaths and injuries. A case was registered in Crime No.358 of 2005 for offences under Sections 304 and 288 IPC against ten persons. The accused 1 to 4 are the owners of the building, while the accused 5 and 6 are the Managers working with the Company viz., Lookman Electro Plast Industries, belonging to the 1st Accused. Accused 7 and 8 are the Contractors and accused 9 and 10 are the Supervisors. 3. The First Information Report was registered on the statement of one of the injured, while he was at hospital, on the date of occurrence. The same informed that he and others were working under the 10th accused, a Supervisor. They were engaged in plastering work. The Contractor under whom they functioned was the 8th accused and the 9th accused was his assistant. The building walls and some of the pillars on the ground floor were being demolished by workers working under the 7th accused. Accused 5 and 6 had been asked to supervise the site work by the 1st accused. While carrying out the work, it would appear as though the entire building would collapse. The complaint informed of the frequent overseeing of work by the accused and of the defacto complainant and others informing them of the building being very old, of the entire building shaking when the pillars were being broken and that therefore, the pillars on the ground floor need not be demolished. The 1st accused and his family members as well as the Managers and Supervisors informed that they knew that the building would collapse and fall down and if such an occurrence takes place, they would take care of their families. They would also take care of loss occasioned to properties of others. So saying, workers were induced to carry out their work. Despite knowledge that the building would fall down, the accused induced the workers to continue the work. The defacto complainant and nine others were working on the 2nd floor on 05.04.2005 and when the men working under A7 had left, the building came crumbling down resulting in the deaths and injuries. https://hcservices.ecourts.gov.in/hcservices/ 4. On completion of investigation, the respondent has preferred a charge sheet informing commission of offences under Sections 304 (ii), 324, 325 IPC and 3(1) of Tamilnadu Prevention of Public Property (Destruction and Loss) Act, 1998 against all the accused. The case has been taken on file by the IV Additional Sessions Court, Chennai in S.C.No.572 of 2010. 5. Challenging the prosecution, learned counsel for the petitioner in Crl.O.P.No.29294 of 2010 would submit that offence under Sections 324 [Voluntarily causing hurt by dangerous weapons or means], 325 [Punishment for voluntarily causing grievous hurt] IPC and 3(1) [Punishment for committing mischief in respect of property] of Tamilnadu Prevention of Public Property (Destruction and Loss) Act, 1998, all require mens rea. In the facts of the instant case, it cannot be contended that the petitioners had the necessary intention to commit such offences. As regards charge under Section 304 (ii) IPC, learned counsel placed reliance on a decision of the Delhi High Court reported in 2009 Crl.L.J 1418 [Baldev Raj Kapur Vs. State] to inform that there is no material to show that the petitioners were present on the spot, when the building collapsed or that the petitioner had inflicted any injury on the person of the deceased/injured labourers. 6. As regards the allegation of demolition of the building knowing it to be likely to cause the death of the labourers and the allegations of the defacto complainant in this regard, learned counsel would submit that the same were palpably false. Towards supporting such contention, learned counsel would take us to the allegations in the complaint and inform that in the opinion of the Deputy Director of prosecution dated 20.09.2005, it had been stated that on perusal of the case diary, "the complainant has stated in the FIR that the alleged accused told that "owing to be induced and embolden by the accused stating that nothing would happen to them, they had continued the work". According to the Deputy Director, the same did not find support in the 161(3) Cr.P.C statement of the witnesses. The Deputy Director had also noted some other contradictions in the 161(3) Cr.P.C. statements. Noting the same and other discrepancies, the C.D. file had been returned to the investigation officer. The report of the Deputy Director of prosecution dated 20.09.2005 would show that the 161(3) Cr.P.C statements were false, as also pre-dated. 7. Learned counsel for the petitioner would submit that the allegations against the accused, particularly accused 1 to 4, owners of the building were totally unwarranted and towards informing this https://hcservices.ecourts.gov.in/hcservices/ Court that the owners had exercised due care and caution, he would refer to a detailed technical report obtained towards restoration of the building from a technical consultant on 10.12.2004. Learned counsel would inform that as on the date of the occurrence, the 4th accused was a minor. The factum of having there been torrential rains on 05.04.2005, is found mentioned in the order of the Anticipatory Bail passed by this Court in favour of the 1st accused in Crl.O.P.No.8330 of 2005 dated 11.04.2005 as also in the newspaper reports dated 06.04.2005. Learned counsel would state that the following sums stand paid as compensation and ex-gratia to the deceased and injured. Sl.No . Names of Deceased Names of Injured Compensatio n in Rs. Ex-gratia in Rs. 1 Mani 1,18,236 25,000 2 Baskar 52,433 25,000 3 Ilavarasan 79,182 25,000 4 Ramesh 1,88,160 25,000 5 Pushparaj 4,52,760 1,00,000 6 Velayutham 3,89,280 1,00,000 7 Bharath 4,15,960 1,00,000 8 Devan 3,68,340 1,00,000 9 Ber Bahadur 1,00,000 1,00,000 Total 21,64,351 6,00,000 8. Learned counsel for the petitioners in Crl.O.P.No.29210 of 2010 would adopt the submissions of the learned counsel for the petitioners in Crl.O.P.No.29294 of 2010. 9. Heard learned Additional Government Pleader on the above submissions. 10. Sections 324, 325 IPC and 3(1) of Tamilnadu Prevention of Public Property (Destruction and Loss) Act, 1998 reads as follows: 324. Voluntarily causing hurt by dangerous weapons or means whoever, except in the case provided for by section 334,voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as https://hcservices.ecourts.gov.in/hcservices/ weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 325. Punishment for voluntarily causing grievous hurt Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 3(1) of Tamilnadu Prevention of Public Property (Destruction and Loss) Act, 1998: Punishment for committing mischief in respect of [property]: whoever commits mischief by doing any act in rest of any [property] and thereby causes damage or loss to such [property] to the amount of one hundred rupees or upwards. All the aforesaid offences could be committed only if the accused had the intend to commit offences. The facts of the present case do not reflect any intent. The only basis on which the charge under Section 304(ii) IPc could be sustained in the instant case is upon the allegation found in the complaint that the accused induced the workers to carry out the work despite knowledge that the building would fall down. This Court would accept the contention of learned counsel for the petitioners on the falsity of the 161(3) Cr.P.C. statement of the witnesses and of they being predated, in circumstance where the Deputy Director had on 20.09.2005 found the necessary ingredients lacking in the 161(3) Cr.P.C. Statements. The allegations in the complaint of the complainant and others having been working on the second floor, of the Supervisor by name Satish and his men having been engaged in demolishing the pillars on the ground floor of the building and of their having left just before the building came crumbling down, defies normal human conduct. It is unthinkable that one would cut the trunk of the tree when people were perched on the branches thereof. To this Court, it is apparent that the allegations in this regard found in the complaint are no more than the handy work of the prosecution agency. Many a time, when disaster strikes, the machinery of the State succumbs to that temptation of immediately assuaging public ire. This Court is in no doubt that the present case is one such instance. 11. This Court, in the facts and circumstances of the case and taking judicial notice of the fact that unexpected torrential rain did strike the City of Chennai in the summer of 2005 on the 4th and 5th days of April, would quash the proceedings against all the accused in https://hcservices.ecourts.gov.in/hcservices/ S.C.No.572 of 2010. The benefit of this order shall flow also to the other accused who are not before this Court. 12. The Criminal Original Petitions accordingly are allowed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar ars To 1.The Inspector of Police, E-1, Mylapore Police Station, Law and Order, Chennai – 4. 2.The Public Prosecutor, High Court, Madras. + 1 cc to Mr.S. Baskar, SR.37140 + 1 cc to Mr.R. Rajarathinam, SR.37139 Crl.O.P.Nos.29210 & 29294 of 2010 and M.P.Nos.1+1 of 2010 KJ(CO) Eu 6.9.11 https://hcservices.ecourts.gov.in/hcservices/