1. This revision petition is directed against the order dated 3.10.2002 passed by the learned Metropolitan Magistrate whereby the petitioner has been served with notice under Sections 288/338 IPC. The learned Counsel for the petitioner pointed out that the complainant, namely, Mohd Shamshad, was engaged to do some plastering work at the residence of the petitioner. While doing the plastering work, the said Mohd Shamshad is alleged to have fallen down from the scaffolding which had been put up for the purposes of carrying out the plastering work. It is alleged that the scaffolding was not made secure enough to ensure that nobody falls and injures himself while working on it. There is no other allegation against the petitioner.
2. The learned Counsel for the petitioner submitted that on the allegations as stated, the petitioner cannot be regarded as having committed any offence under Section 288 IPC. He submitted that this provision, i.e., Section 288 IPC requires that a person, while pulling down or repairing any building, knowingly or negligently omits to take such order with that building as is sufficient to guard against any probable danger to human life "from the fall of that building, or any part thereof". He submitted that the case against the petitioner does not fall within this provision. Section 288 IPC reads as under:
288. Negligent conduct with respect to pulling down or repairing buildings.--Whoever, in pulling down or repairing any building, knowingly or regligently omits to take such order with that building as is sufficient to guard against any probable danger to human life from the fall of that building, or of any part thereof, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
It has to be seen whether any offence is made out under Section 288 in the context of the allegations against the petitioner. In the present case, I find that even if the entire statement of the said Mohd Shamshad is taken to be correct, there is no mention of any fall of any building or any part thereof. What has happened is that the scaffolding that was put up by the contractor and / or the labourers themselves had given way and the said Mohd Shamshad fell down and sustained injuries. Section 288 IPC concerns itself with a situation where a person, in pulling down or repairing any building, knowingly or negligently omits to take such order with that building as is sufficient to guard against any probable danger to human life from the fall of that building, or any part thereof. The scaffolding put up by the contractor and / or the labourers themselves cannot fall within the sweep of this section inasmuch as the petitioner, who was the owner of the building, had assigned the job of plastering to the contractor and / or the labourers and there was nothing else left for him to do. Therefore, it cannot be construed that he knowingly or negligently omitted to take such order as is required under Section 288 IPC. Accordingly, the ingredients of Section 288, to my mind, are not made out in the present case.