Delhi District Court
State vs Madan Joshi on 19 September, 2023
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IN THE COURT OF MS. BHARTI BENIWAL
METROPOLITAN MAGISTRATE-11
DWARKA COURT NEW DELHI
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FIR No.379/2022
PS Janakpuri
U/s 279/338 IPC and
Under Section 146/196 MV Act
State Vs. Madan Joshi
Crl. Case No. : 1161/2023
Date of institution of the case : 27.01.2023
Date of commission of offence : 11.07.2022
Name of the complainant : Dr.Anand Kushwaha
Name of accused and address : Madan Joshi
S/o Ramesh Chander Joshi
R/o H.No.RZ-E-139/3 Jai
Vihar, Bani Camp,
Najafgarh, New Delhi
Offence complained of : 279/338 IPC and Under
Section 146/196 MV Act
Plea of the accused : Pleaded not guilty
Final order : Discharged for offence
under Section 279 IPC
Date of judgment : 19.09.2023
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State Vs Madan Joshi Page No.1/6
PS : Janakpuri
FIR No.379/2022
JUDGMENT
1. The accused has been chargesheeted for committing offences punishable under Section 279/338 IPC and under Section 146/196 MV Act.
2. It has been alleged by the prosecution that on 11.07.2022, at around 10 : 30 PM in service lane, near metro pillar no.616 towards Uttam Nagar, Najafgarh Road, Janakpuri, New Delhi accused was driving motorcycle bearing no.DL 12SK 0244in a rash and negligent manner as to endanger human life and personal safety of others. That on the above mentioned date, time and place, while driving the offending vehicle, accused hit the complainant and caused grievous injuries to the complainant and thereby committed offence punishable u/s 279/338 IPC.
3. That on the above-mentioned date, time and place, accused was found driving the offending vehicle without insurance and thereby, committed an offence punishable under Section 146/196 MV Act.
4. Charge sheet in the present case filed under Section 279/338 IPC and under Section 146/196 MV Act. Matter was compromised between the complainant/injured and the accused. Statement of the complainant/injured was recorded and offence u/s 338 IPC was compounded with the permission of the Court.
_________________________________________________________________________ State Vs Madan Joshi Page No.2/6 PS : Janakpuri FIR No.379/2022
4. It is pertinent to note that injured/complainant is the chief witness of the prosecution and has already received compensation of Rs.50,000/- from MACT Court and compounded the major offence under Section 338 IPC.
5. It is pertinent to note that the complainant / injured is the chief witness of the prosecution and has already received compensation from the accused and compounded the major offence disclosed in the charge sheet. An issue has been raised by the Ld. Counsel for the accused on the last date of hearing that this is a fit case for exercising power under Section 258 Cr.P.C. for stopping the proceedings as nothing fruitful would be achieved. There is possibility of witnesses not deposing against the accused. I agree with the submissions of the Ld. Counsel. Even more relevant is the description of accident in Asal Tehrir and statement of victim. Even otherwise the allegations made by the complainant / injured are only that accused was driving the vehicle fast and had hit him. The exact manner in which the vehicle was being driven by the accused is not mentioned in Asal Tehrir or statements under Section 161 Cr.P.C. Even otherwise, Sections 279 and 338 of IPC both punished rash and negligent act. The only difference is that in Section 279 IPC there is rashness and negligence which may result in injury and Section 338 IPC is invoked when such an act actually results in an injury being caused. Section 338 IPC has been made compoundable but Section 279 IPC is not compoundable. Perhaps, one reason is that, as far as Section 338 IPC is concerned, there is a _________________________________________________________________________ State Vs Madan Joshi Page No.3/6 PS : Janakpuri FIR No.379/2022 determinable victim i.e. injured whereas in offence under Section 279 IPC, there is no determinable injured who can compound the offence. In a decision titled as Adwait Surendra Aatre Vs. The State of Maharashtra & Ors., in Criminal Application no.124 of 2011, whereas Ld. Single Judge of Hon'ble High Court of Bombay held and I quote :
"...Therefore, there is an apprehension in the mind of both, the applicant / accused and complainant, that even by approaching the trial court, they may not be allowed compounding the entire proceeding because of inclusion of Section 279 IPC which is stated to be non compoundable...
7. After minute reading of both these sections, it is seen that the alleged act of rash and neglient driving, endangering human life, is required to be proved as necessary ingredient to constitute offence under Section 279 IPC and by allegedly doing any act rashly or negligently as to endangering the human life are also the same ingredient to constitute the offence under Section 338 IPC. Therefore, such ingredients which are common, cannot be separately dealt with. The requirement of offence under Section 338 IPC is all that is covered in Section 279 of IPC. As specifically mentioned in the Code, when the offence under Section 338 IPC is compoundable, there cannot be any impediment or bar to hold that the alleged offence under Section 279 of IPC read with Section 338 IPC could also be compounded. It is not a different act complained of to constitute a separate offence but are the essential ingredients of section 338 IPC in the present case. In short, the offence under Section 338 IPC is compoundable with permission of the Court, which, amounts to acquittal. After such compounding with the consent of the aggrieved party / injured complainant, the accused cannot be prosecuted or tried for the same act which are complained of by different title or read under Section 279 of IPC. Though it may not be a second trial, but the accused, who is once acquitted from the charge under Section 338 IPC upon compounding of the charge based on the same evidence, _________________________________________________________________________ State Vs Madan Joshi Page No.4/6 PS : Janakpuri FIR No.379/2022 would be vexed, if he is directed to under go further trial under Section 279 for lesser punishment. Thus, by the present application, the applicant has made out a case for componding of offence...
...I am satisfied that once the offence under Section 338 IP is compounded, nothing survives for trying the offence under Section 279 IPC. The FIR or Charge sheet for additional Section 279 IPC would be meaningless when the cognizance is taken under Section 338 of IPC. The proceedings for the offence under Section 279 IPC, therefore deserves to be quashed and set aside." (Emphasis supplied)
6. Therefore, the Ld. Single Judge was of the view that once injury was received by rash and negligent driving, only Section 338 IPC ought to be invoked i.e. the graver of the two offences and Section 279 IPC is not made out, and therefore, the court quashed proceedings under Section 279 IPC and directed the parties to appear before Ld. Magistrate for compounding the offence under Section 279 IPC.
7. Ld. APP for State has submitted that the judgment is not laying down correct law and trial for offence under Section 279 IPC must be completed and power under Section 258 Cr.P.C., ought not to be exercised in the present case.
8. The High Court was also of the view that once offence under Section 338 IPC is compounded continuing the trial for the offence under Section 279 IPC shall be vexing the accused twice. I am not fully in agreement with the view that Section 279 IPC _________________________________________________________________________ State Vs Madan Joshi Page No.5/6 PS : Janakpuri FIR No.379/2022 loses its significance once Section 338 IPC is invoked by the police and that Section 338 IPC is not independent but only graver form of the offence under Section 279 IPC. However, keeping in view the circumstances of the case, the decision of Bombay High Court and the futility of purpose in proceeding with the trial of minor offence under Section 279 IPC when the major offence under Section 338 IPC have already been compounded by the victim.
9. I am of the view that present case is a fit case for exercising power under Section 258 Cr.P.C. I direct that the proceeding in the present case are stopped which shall operate as discharge of the accused as no witness has been examined.
10. In view of the above stated discussions, accused namely Madan Joshi is hereby discharged from the offence punishable under Section 279 IPC.
11. Accused be set at liberty.
Pronounced in the open court on this 19th day of September 2023.
(BHART BENIWAL) Metropolitan Magistrate-11 South West District, Dwarka Courts New Delhi/19.09.2023 _________________________________________________________________________ State Vs Madan Joshi Page No.6/6 PS : Janakpuri FIR No.379/2022