* THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + CRL. R.C. NO. 1213 OF 2009 % 05-11-2009 # Kolishetty Venkateswarlu. ..… Petitioner Vs. $ Bandaru Venkat Reddy and others. …Respondents ! Counsel for the Petitioner : Sri T.C. Krishnan ^Counsel for Respondent No.4 : Sri K.V. Raghuveer Counsel for Respondent No.5 : Public Prosecutor <Gist : >Head Note: ?Cases Referred: 1. 2009(1) ALT (Crl.) 52 (SC) 2. 2009(2) ALD (Crl.) 163 (AP) 3. (2009) 2 SCC (Cri) 79 4. (2000) 3 SCC 262 5. 2008-Supreme-7-724 6. (2007) 8 SCC 224 THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No. 1213 of 2009 Date: 05.11.2009 Between: Kolishetty Venkateswarlu. .. Petitioner/Complainant And Bandaru Venkat Reddy and others. .. Respondents. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No. 1213 of 2009 Order: This revision is directed against the order dated 16.01.2009 passed in Crl.M.P. No.3410 of 2008 in C.C. No.241 of 2006 by the learned Judicial Magistrate of First Class, Suryapet. The brief facts of the case are as follows. The de facto complainant Kolishetty Venkateswarlu reported to the police on 24.05.2005 that he got admitted his son Uttam Kumar, aged about 11 years, in Hyma Resorts for learning swimming and that he had paid a sum of Rs.300/- for 15 days learning. On 23.05.2005 at about 6.00 PM he dropped his son at Hyma Resorts and returned to home. Again at about 7.00 PM when he went there to pick up his son, initially the coaches informed him that his son was outside the swimming pool. Then he searched the surroundings of the swimming pool and resort for his son, but he could not trace his son. Again when he insisted the coaches about his son, they dived into the swimming pool and brought out his son who was in unconscious state. He noticed that froth was coming from the nose of his son. The boy was immediately shifted to KVR hospital, where the Doctors declared that boy died. It is alleged that due to negligence of the owner of Hyma Resorts, namely Brijesh Reddy and his uncle, who was supervising the management, and four coaches of swimming pool the son of the de facto complainant drowned into the swimming pool and died. Basing on the said report, the police registered a case in Crime No. 138 of 2005 of Suryapet Police Station on 24.05.2005 under Section 304-A IPC. After completing the investigation, charge sheet was filed against A1 to A3. As per the contents of the charge sheet, accused No.1 Bandaru Venkat Reddy had taken Hyma Resorts on lease for a period of one year from 01.12.2004 from its owner Brijesh Reddy and that A1 had power to enlist private employees and to maintain the swimming pool properly with all responsibilities. He had to look after the customers and to provide services to the customers, which include providing of life jackets, tubes and divers. A2 is the Supervisor and A3 is the observer of the swimming pool. It is also alleged that due to their negligent attitude and mismanagement of swimming pool, the deceased drowned into the swimming pool and died. Thus though it is mentioned that Brijesh Reddy is the owner of Hyma Resorts the police did not array him as an accused on the ground that A1 had taken the Hyma Resorts on lease from Brijesh Reddy. In this case, the trial commenced and the revision petitioner herein, who is the father of the deceased, has been examined as PW.1. PW.1 in his evidence deposed that on 12.05.2005 he got admitted his son and daughter in Hyma Resorts for learning swimming and that he paid Rs.300/- for 15 days learning. He categorically deposed that at the time of admission one Brijesh Reddy and his staff were present and the said Brijesh Reddy used to run the resort and also the swimming pool. He further deposed that on the date of incident i.e., on 23.05.2005 at about 6.00 PM he dropped his son and daughter at swimming pool and returned to his house and that at about 7.00 PM when he went to the swimming pool his daughter alone was swimming and that his son was not seen. According to PW.1 then he questioned the staff of Brijesh Reddy (A1 to A3 present in the Court) about his son and that they asked him to search for his son around the swimming pool. He further deposed that after search, again he questioned the accused and Brijesh Reddy to search for his son in the swimming pool. Then one of the staff members dived into the swimming pool and on search found his son inside the pool and brought his son to the floor. According to him, froth was coming out from the mouth of his son and no staff member came near his son. Then he himself gave first aid to his son and then shifted the boy to KVR Hospital, Suryapet, where the Doctors declared that his son was brought dead. He further deposed that about 100 children were learning swimming in the pool and there should be one coach for each group of 10 children and that there were no safety measures and required coaches available in the pool and that Brijesh Reddy and his staff were running the swimming pool on that day also and that his son died due to the negligent attitude of the management of Hyma Resorts. He went to police station and lodged a complaint against Brijesh Reddy and management. Ex.P1 is his complaint. At that stage, the learned Assistant Public Prosecutor filed a petition in Crl.M.P. No.3410 of 2008 in C.C. No.241 of 2006, under Section 319 Cr.P.C., seeking to implead Brijesh Reddy as one of the accused in the said C.C. and try him together with the other accused. The learned Judicial Magistrate of First Class, Suryapet (hereinafter referred as “lower Court”) has dismissed the said petition, by a very cryptic order dated 16.01.2009, which is as follows. “Heard both side counsels and perused the petition and counter. As there are no merits in the petition to implead owner of the Hyma Resorts to prosecute along with the accused herein the case. As such petition is liable to be dismissed. In the result, petition is hereby dismissed as no costs.” Learned counsel for the petitioner submitted that the proposed accused Brijesh Reddy is the Owner-cum-Proprietor of Hyma Resorts and that he was present on the date when the petitioner got admitted the deceased in the said Hyma Resorts to learn swimming and that he was also present on the date of death of the deceased boy and that the petitioner had specifically mentioned about the said Brijesh Reddy in his first information report and also in his evidence before the Court and that the lower Court has passed a very cryptic order without discussing the averments of the FIR or the evidence let in. His main submission is that the order of the lower Court is a non-speaking order. It is further submitted that now the said Brijesh Reddy seems to have created some documents, as if Hyma Resorts was given on lease in favour of accused No.1, who is no other than the father-in-law of the said Brijesh Reddy and that the alleged agreement is not a registered one as such no value can be given to the said agreement. Learned counsel for the petitioner relied on a judgment in Bholu Ram v. State of Punjab[1], wherein it was held that if the deposition of witnesses makes out a prima facie case, then the Court must proceed under Section 319 Cr.P.C. The learned counsel for the proposed accused has submitted that the evidence on record must show that there is likelihood of conviction and unless it is shown that the acquisition is well founded no person should be added as an accused under Section 319 Cr.P.C. His further submission is that even if the proposed accused is deemed to be the proprietor of Hyma Resorts he cannot be held vicariously liable for the acts committed by his employees and the principle of vicarious liability will not be applicable to criminal cases. In support of his contention, he relied on K.V.V. Vijaya Kumar v. State of Andhra Pradesh[2], Brindaban Das v. State of West Bengal[3], Michael Machado v. Central Bureau of Investigation[4], Hardeep Singh v. State of Punjab[5] and Guriya v. State of Bihar[6]. The learned counsel for the petitioner submitted that principle of vicarious liability is not applicable to criminal cases. The learned counsel for the proposed accused relied on the decision in the case K.V.V. Vijaya Kumar v. State of Andhra Pradesh (2 supra). In that case, the Presiding Officers of the Court were sought to be held responsible for the acts committed by the staff members. This Court in the above referred judgment held that it would not be possible for the Presiding Officer to know about the earlier payments made to the claimants, unless the office note is made available with regard to the earlier payments. A20 and A21 became the victims of the acts of the subordinate staff working in the Court and staff members who were dealing with the branch of land acquisition cases with regard to issuance of the cheques. Thus, it is clear that the above referred decision is not applicable to the facts of this case. It is true that principle of vicarious liability is not applicable to criminal cases. What is required to be examined is whether the accused or proposed accused is responsible for his own acts and whether his own acts of negligence constitute an offence under Section 304-A IPC. In order to constitute the offence under Section 304-A IPC the prosecution should prove that the death of the person must have been caused by the accused by doing any act in a rash and negligent manner and as such there must be positive proof that the rash or negligent act of the accused was proximate cause which resulted in death of the deceased. A negligent act is an act done without doing something which a reasonable man would have done in ordinary course of business, or act which a prudent or reasonable man would not have done in the attending circumstances. Whether the omissions and commissions of the accused prove the offence under Section 304- A IPC or not need not be discussed in detail in this case. Suffice to say that failure to exercise reasonable and proper care also amount to criminal negligence. Therefore, though the theory of vicarious liability is not applicable but the person incharge or the manager incharge of the swimming pool who have to take reasonable care and steps to prevent any untoward incident or any accident or injury to any person and whether such acts attract Section 304-A IPC or not have to be considered by the lower Court at the time of trial. What is to be seen in this case is whether the proprietor of Hyma resorts had taken reasonable care to prevent any untoward incident in the swimming pool, whether required number of coaches were appointed or not, whether rubber tubes and life jackets were supplied to the swimmers or not, whether there were any persons with a specific direction to observe the boys while swimming and to rescue them or not. Prima facie, it appears that had the management taken a reasonable care to prevent any untoward incident in the swimming pool, and kept observers to rescue the boys this unfortunate incident would not have occurred. The moment when the deceased boy drowned into the water had the coaches dived into the water and rescued the deceased boy; they could have saved the deceased boy. Therefore, prima facie it appears that the proprietor and the persons in the management of Hyma Resorts and the coaches at the spot are responsible for their negligent acts of omission and commission. Now the point that arises for consideration is whether the proposed accused is the proprietor of Hyma Resorts and whether he can be added as an accused under Section 319 Cr.P.C. A reading of Section 319 Cr.P.C makes it clear that where it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. The learned counsel for the proposed accused has relied on the judgment in Brindaban Das v. State of West Bengal (3 supra), wherein it was held that the Court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the FIR has surfaced during the trial, but the Court is also required to consider whether such evidence would be sufficient to convict the person being summoned. It was further held as follows. “The power under Section 319 Cr.P.C is to be invoked, not as a matter of course, but in circumstances where the invocation of such power is imperative to meet the ends of justice. The fulcrum on which the invocation of Section 319 Cr.P.C rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable it not only to prove its case but to also secure the conviction of the persons summoned. It is only logical that there must be substantive evidence against a person in order to summon him for trial, although he is not named in the charge-sheet or he has been discharged from the case, which would warrant his prosecution thereafter with a good chance of his conviction.” In Michael Machado v. Central Bureau of Investigation (4 supra), it was held as follows. “The basic requirement of Section 319 Cr.P.C is that the court must have reasonable satisfaction from the evidence already collected during trial or in the inquiry regarding two aspects: First, that some other person, who is not arraigned as an accused in that case has committed an offence. Second, that for such offence that other person could as well be tried along with the already arraigned accused. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence.” In Hardeep Singh v. State of Punjab (5 supra) it was held that the power under Section 319 Cr.P.C. can be exercised only if the Court is satisfied that the accused so summoned is in all likelihood would be convicted. In Guriya v. State of Bihar (6 supra) it was held as follows. “The court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be recommenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite large in number the court must seriously consider whether the objects sought to be achieved by such exercise are worth wasting the whole labour already undertaken. Unless the court is hopeful that there is a reasonable prospect of the case as against the newly brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action.” Now we have to see whether the basic requirements for invoking Section 319 Cr.P.C is made out in this case or not, whether from the evidence it appears that the proposed accused not arraigned as an accused in the case has committed the offence and whether he could as well be tried along with the already arraigned accused. The accused who have committed the offences should not escape the punishment. At the same time, no innocent person should be convicted or put to trial. What is to be seen is whether the evidence brought on record gives an impression that the proposed accused has committed the offence along with the accused already arraigned or not. The power has to be exercised very sparingly. It must appear from the evidence that the proposed accused has also committed the offence. Such power cannot be exercised when a witness gives entirely new version i.e., makes improvement in the earlier statement which formed the basis of FIR. Where it appears that the witnesses have deliberately improved their version to falsely implicate innocent persons, the court should be careful and should not exercise the powers under Section 319 Cr.P.C. As examined from the record, the petitioner herein is the de facto complainant who lodged report to the police on 24.05.2005. In the said report he had categorically mentioned that he got admitted his minor son i.e., the deceased Uttam Kumar, aged about 11 years, in Hyma Resorts. It is alleged that on the date of incident the petitioner went to Hyma Resorts at about 7.00 PM and enquired about his son and the coaches therein asked him to search for his son in and around the resort and when the petitioner could not found his son in and around the Hyma Resorts and subsequently when he insisted the coaches, one of the coach dived into the waters and brought his son out of the swimming pool. The deceased was taken to a hospital, where the Doctors declared the deceased died. It is specifically alleged that the proposed accused Brijesh Reddy, the owner of Hyma Resorts, his uncle who was in the management of Hyma resorts and the coaches had not taken proper care in maintaining Hyma Resorts and that they are responsible for the death of the deceased. Thus, in the FIR it is specifically mentioned that the proposed accused Brijesh Reddy is the owner of Hyma Resorts. Coming to the evidence, the petitioner was examined as PW.1. He deposed that on 12.05.2005 he got admitted his deceased son and daughter in Hyma Resorts and at the time of admission Brijesh Reddy and his staff were present. He further deposed that Brijesh Reddy used to run the resort and also the swimming pool. It is also his specific case that on 23.05.2005 i.e., on the date of incident at about 7.00 PM when he could not found his son he questioned the staff of Brijesh Reddy i.e., the accused present before the Court and Brijesh Reddy to search for his son in the swimming pool. PW.1 had also categorically deposed that his son died because of the negligent attitude of the management of Hyma Resorts and that there were about 100 children learning swimming and there should be a coach for each group of 10 children and that no safety measures were taken and required coaches were not available. He categorically deposed that Brijesh Reddy and his staff were running the swimming pool on that day also. He further deposed that he went to police station and lodged a complaint against Brijesh Reddy and management. The report given by him is marked as Ex.P1. It is clear that the version of PW.1 is not an improved version. It is consistent with his earlier version. The above referred evidence of PW.1 and the contents of Ex.P1 (FIR) prima facie go to show that Brijesh Reddy was the owner of Hyma Resorts and that he was present at the time of admission of the deceased and also on the date of death of the deceased at Hyma Resorts. Since the name of Brijesh Reddy has been mentioned from the initial stage of lodging FIR it cannot be said that thee is no possibility of securing conviction. It appears that the evidence already collected show that the proposed accused has committed an offence and he could be tried along with the already arraigned accused. The contention of the learned counsel for the respondent is that the proposed accused Brijesh Reddy had already leased out the resort in favour of his uncle and that there was an agreement between the proposed accused and his uncle A1. No much importance need be given to that agreement at this stage because admittedly the said agreement is not a registered one. Further, as seen from the contents of the impugned order, the trial Court has not discussed the evidence already available on record. It is the duty of the Court to examine the rival contentions and to see whether there is any material on record to show that the proposed accused has committed the offence or not. Admittedly, the trial is at the initial stage. PW.1 alone has been examined in this case. The lower Court has also not considered the contents of FIR. As argued by the learned counsel for the petitioner it is clear that the order of the lower Court is not a speaking order and it is very cryptic, and therefore, the same is liable to be set aside. Every order must be supported by proper reasoning. Reasoning must be based on appreciation of evidence on record. In view of the above discussion, the Criminal Revision Case is allowed and the impugned order is set aside. Consequently, the petition filed by the petitioner in Crl.M.P. No.3410 of 2008 in C.C. No.241 of 2006 stands allowed. The lower Court is directed to proceed against the proposed accused under Section 319 Cr.P.C. in accordance with law, without being influenced by any of the observations made in this revision. ______________________ B. CHANDRA KUMAR, J. Date: 05.11.2009 Note: LR copy to be marked (B/O) Nsr [1] 2009(1) ALT (Crl.) 52 (SC) [2] 2009(2) ALD (Crl.) 163 (AP) [3] (2009) 2 SCC (Cri) 79 [4] (2000) 3 SCC 262 [5] 2008-Supreme-7-724 [6] (2007) 8 SCC 224