On December 28, 2023, nine year old Manya Dameria died drowning in a  swimming pool of Prestige Lakeside Habitat, a private apartment complex with multiple facilities for its residents.  A  complaint was registered   by the father of the child, who slipped into the swimming pool in the apartment complex and died, against the president and   elected office bearers of the association, and  upon investigation, a  chargesheet was filed  under Section 304 of the IPC against them. Challenging the criminal proceedings under Section 149(1) and 304(2) of IPC, the homeowners’ Association who were named as accused in the incident of the minor girl’s drowning, sought to  question the criminal proceedings after   the court of Additional Chief Judicial Magistrate, Bangalore Rural District  issued summons to them taking cognizance of the offence thereby  prompting the petitioners   to approach the court.  

  A coordinate bench of the High Court in a companion petition had already stayed further proceedings against a builder on grounds that the builder had handed over possession of an apartment complex to the Association.  The petitioners, home owners’ association, contended that offences  under s 304 and 149 of IPC  cannot be  alleged on them as there was no ‘intention to commit homicide’ which is a requirement to be charged under Section 304.  They also brought to the  notice of the court    that there was a delay of 40 days in filing the complaint against them by the second respondent, the complainant. Holding the brief for the State of Karnataka, Respondent 1,  the Government Pleader,  argued  that the petitioners being office bearers of the Association, the responsibility of safeguards   within the premises  primarily rests  with them. Their negligence to install safeguards in the pool area makes them   accountable for the death of the child  within the society complex. They also adduced  the post-mortem report that  clearly showed  that  death was caused due to drowning of the child in the swimming pool.  The  order  of the Karnataka High Court Judge, Justice  M Nagaprassanna  on 6.8.2024 in the instant case is of significance impacting  affluent housing apartment complexes with amenities such as swimming pools or gymnasiums for their residents and the imperativeness of safeguards for the facilities provided. Also in consideration  for the court  was the issue of sections 304  and 149 of the IPC against the petitioners and whether these provisions under which they were charged were attracted or not.   

It was contended on behalf of the petitioners that in no apartment complex, swimming pools, there is any guard who would stop a child from moving around the swimming pool, as it is a question of privacy. The Court refused to accept this submission. The court observed that if there is no lifeguard who is guarding the swimming pool, particularly when the children are around, it is shirking of the responsibility on the part of the elected association. The court further held that it cannot be said that they are not not accountable or responsible for the happening in the apartment complex, particularly the event of the kind.

The court  held  that “the office bearers of the Association being elected members of the Home owners Association were responsible for taking care of every grievance of the residents in the apartment complex and for its upkeep’’. They   should bring in safety measures, subject to just exceptions of privacy of the residents. If any apartment complex has a swimming pool and the said swimming pool is left unguarded without any life guard or without any safety measures taken as the case would be, those apartment complexes would be doing so at their own peril. Therefore, 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 case at hand. Since it is an admitted fact  that no life guard is even appointed, to guard the pool at appropriate hours, nor the pool itself is guarded by placing safety measures around the pool, which the petitioners were obliged to provide and take care of, they will have to come out clean in a full blown trial, not for the offence under Section 304 of the IPC, but for offence punishable under Section 304A of the IPC, as prima facie, I find negligence on the part of the petitioners.” 

Hence, in exercise of power under Section 482 of CrPC, the court deemed it appropriate to obliterate the offence against the Petitioners under Section 304 of IPC and charge them with Section 304-A of IPC , as the petitioners were in-charge of the affairs of the apartment complex and were prima facie negligent. 

The court noted that for an offense to become punishable under Section 304 of the IPC, it is necessary that it has ingredients of Section 299 of the IPC, which defines culpable homicide . The police appeared to have ignored the existence of Section 299 while charging the petitioners. Therefore, laying out charges under Section 304 is erroneous , as there existed no mens rea or intention to kill on the part of the petitioners. Thus the Court held that, “ Since it is an admitted fact that no lifeguard is even appointed, to guard the pool at appropriate hours, nor the pool itself is guarded by placing safety measures around the pool, which the petitioners’ were obliged to provide and take care of, they will have to come out clean in a full blown trial, not for the offense under Section 304 of the IPC, but for offenses punishable under Section 304A of the IPC, as prima facie, I find negligence on the part of the petitioners." Thus the Court, in its order, held that the petition was allowed in part, quashing the offense laid against the petitioners under Section 304 of the IPC & allowing trial to be conducted by the concerned court under Section 304A along with Section 149 of the IPC. 

Case Details: Debashish Sinha v. State of Karnataka, 2024 SCC OnLine Kar 69