Karnataka High Court: The instant petition filed by the members of Prestige Lake Side Habitat Homeowners Association, challenging the criminal proceedings under Sections 1491 and 3042 of Penal Code, 1860, wherein they were named as accused in an incident of a minor girl drowning in the apartment complex’s swimming pool. The Bench of M. Nagaprasanna, J.*, while taking note of the incident, held that petitioners being elected members of the Homeowners Association were responsible for taking care of every grievance of the residents in the Apartment complex and for its upkeep.
Hence, in exercise of power under Section 482 of CrpC3, the Court deemed it appropriate to obliterate the offence laid against the petitioners under Section 304 of the IPC and charge them with Section 304-A of the IPC, as admittedly, the petitioners were in-charge of the affairs of the apartment complex and were prima facie negligent.
Background: On 28-12-2023 the daughter of the 2nd respondent slipped into the swimming pool in the apartment complex and died by drowning. On 8-02-2024, a complaint was registered against the President and office bearers of the Association. The police investigated and filed a charge sheet against the petitioners and the apartment complex builder.
The Court of II Additional Chief Judicial Magistrate, Bengaluru Rural District took cognizance of the offence and issued summons, thereby prompting the petitioners to approach the Court to question the criminal proceedings against them.
A coordinate Bench of the High Court in a companion petition had stayed further proceedings against the builder on the ground that the builder had handed over the apartment complex to the possession of the Association.
The petitioners contended that offences alleged under Sections 304 and 149 of IPC are not applicable of the facts of the instant case as there was no intention of the petitioners to commit homicide, which is the necessary requirement of Section 304. The petitioners further argued that there was a delay of 40 days by the 2nd respondent in filing the complaint.
Per contra, the respondents argued that the petitioners are primarily responsible for the negligent act which led to the death of the child as they are responsible for the affairs of the apartment complex in the capacity of being the office bearers of the Association.
Court’s Assessment: Perusing the facts and contentions raised in the matter, the Court examined the complaint filed by the 2nd respondent and stated that the fateful incident happened in the unattended swimming pool of the apartment complex. The 9-year-old daughter of the respondent drowned in the swimming pool where the water was at a certain depth. The reason behind this would be a matter of trial.
Perusing Section 304 and 149, IPC under which the petitioners were charged, the Court had to consider whether these provisions were attracted or not. The Court noted that Section 304 of the IPC punishes for culpable homicide which does not amount to murder. For an offence to become punishable under Section 304 of the IPC, it is necessary that it has ingredients of Section 2994 of the IPC which defines culpable homicide and directs that whoever causes death by an act with the intention of causing death would commit an offence of culpable homicide.
The Court pointed out that the Police appeared to have ignored the existence of Section 299 while charging the petitioners. The Court pointed out that in the instant case, laying out charges under Section 304 was erroneous, as there existed no mens rea or intention to kill, on part of the petitioners.
Perusing Section 304-A, IPC5 the Court pointed out that knowledge of the consequences of committing an act which would directly result in death, would become intention and hence lead to culpability. If the person does not even intend to cause harm, but an act has resulted in causing death, culpability is absent. Therefore, the provision which deals with causing death by negligence ought to have been invoked and not section 304.
Therefore, the instant case ought to have been a case of Section 304-A of the IPC, and not Section 304 of the IPC.
Hence charging the petitioners under Section 304-A, IPC for being prima-facie negligent especially when they were elected members of the Association, the Court observed that if any apartment complex has a swimming pool and the said swimming pool is left unguarded without any lifeguard or without any safety measures, those apartment complexes would be doing so at their own peril. Hence, it is for the members of every apartment Association to protect the lives of infants, in the apartment complex, by bringing in such measures that would avoid any such mishap, so that innocent lives are not casually lost in the manner that has happened in the instant case.
With the afore-stated assessment, the Court decided that the petitioners were obliged to provide and take safety measures vis-a-vis the unguarded swimming pool. Therefore, they will have to come out clean in a full-blown trial, for the offence under Section 304-A of IPC rather than Section 304.
[Debashish Sinha v. State of Karnataka, 2024 SCC OnLine Kar 69, decided on 6-8-2024]
*Order by Justice M. Nagaprasanna
Advocates who appeared in this case :
For petitioners- Sandesh J. Chouta, Sr Advocate a/w N.S. Sriraj Gowda, Advocate
For respondents- P. Thejesh, HCGP
Buy Penal Code, 1860 HERE
Buy Code of Criminal Procedure, 1973 HERE
1. Section 190, Nyaya Sanhita, 2023 (BNS)
3. Section 528, Nagarik Suraksha Sanhita, 2023 (BNSS)