In a first-of-its-kind judgement impacting residents of apartment complexes, the High Court of Karnataka has said that office bearers of the apartment owners’ associations are liable for prosecution for criminal negligence in case of death in their swimming pool if left unguarded without any lifeguard or safety measure.
“If any apartment complex has a swimming pool and it is left unguarded without any lifeguard or without any safety measures taken as the case would be, those apartment complexes would be doing so at their own peril,” the court observed.
It is for the members of every apartment association to protect the lives of infants in the apartment complex by bringing in measures to avoid any mishap so that innocent lives are not casually lost in the manner that has happened in the present case, the court said.
Justice M. Nagaprasanna made this observation while allowing the criminal prosecution of six office bearers — Debashish Sinha, S.T. Suresh Babu, Santosh Maharana, Gobinda Mandal, Bikashkumar Paridh, and Bhakta Charan Pradhan — of Prestige Lakeside Habitat Home Owners Association, Gujur, near Varthur in Bengaluru.
The petitioners had questioned the criminal proceedings in the case of the death of nine-year-old Manya Dameria, who died in the decorative pool area attached to the swimming pool on December 28, 2023.
Negligence, not murder
Though the High Court quashed the charge sheet filed against the office bearers under Section 304 (punishment for culpable homicide not amounting to murder) of the Indian Penal Code (IPC), it suo motu invoked Section 304A (causing death by negligence) of the IPC against them holding that they are accountable for the maintenance and other affairs of the apartment complex.
Pointing out that Section 304 of the IPC was loosely or erroneously laid against the petitioners, the court said they could not be charged with an intention to kill, but the allegation against them could “only hinge upon negligence”.
On the argument made on behalf of the petitioners that no apartment swimming pool has any guard who would stop a child from moving around the swimming pool, as it is a question of privacy, the court said, “If this argument is accepted, it will have a disastrous effect on the safety of the residents, particularly children.”
“Therefore, the office bearers of the association should bring in safety measures, subject to just exceptions of privacy of the residents… If no lifeguard is guarding the swimming pool, particularly when children are around, it is shirking of the responsibility on the part of the elected association,” the court observed.
To trial court
In the present case, the court said since it is an admitted fact that no lifeguard was even appointed to guard the pool at appropriate hours, nor the pool itself was guarded by placing safety measures around it, which the petitioners were obliged to provide and take care of, they will have to come out clean in a full-blown trial, the High Court said. It directed the trial court to proceed against them only on Section 304A without being influenced by its observations.
