Delhi District Court
State vs . Md. Vaseem on 3 August, 2023
IN THE COURT OF SH. BHARAT AGGARWAL, METROPOLITAN
MAGISTRATE-05, SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
FIR No. 15/09
PS - Jagatpuri
U/s 279 & 338 IPC
State Vs. Md. Vaseem
JUDGMENT
A. SL. NO. OF THE CASE : 83841/16
B. DATE OF INSTITUTION : 19.04.2011
C. DATE OF OFFENCE : 07.10.2009
D. NAME OF THE : Girish Kumar Shukla s/o Lt. Sh.
COMPLAINANT R.B. Shukla
E. NAME OF THE ACCUSED : Mohd. Vaseem s/o Safatullaha
F. OFFENCE : u/s 279 & 338 IPC
COMPLAINED OF
G. PLEA OF ACCUSED : Pleaded not guilty
H. FINAL ORDER : Released/Discharged u/s 258
Cr.P.C for offence u/s 279 IPC
I. DATE OF FINAL ORDER : 03.08.2023
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Accused was produced before the court to stand trial for the offences punishable u/s 279 & 338 of the Indian Penal Code, 1860.
2. In brief, facts of the case as alleged by the prosecution are that on 07.10.2019, IO ASI Sahib Singh received DD No. 10A, regarding accident upon which he along with Ct. Sunil went to the spot i.e., Chander Nagar mod, opposite Reliance Fresh store, near Govt. School, Bhagat Singh Marg where bus no.
FIR no. 15/09 PS Jagatpuri State vs. Mohd. Vaseem Page no. 1 of 6 DL1PB 6076, blue line route no. 350 was found parked. It was informed that the victim has been taken to GTB hospital and thereafter they reached the hospital and collected MLC no. C-4618/09 of the victim. The victim gave his statement whereby he inter- alia alleged that on 07.10.2009, while he was going after purchasing milk and reached near Reliance Fresh store, at about 06:50 AM one bus which was going towards Shahdara came at high speed in a rash and negligent manner and hit him from behind and ran over his foot due to which he received injury on his left foot. He further alleged that the driver left the bus on the spot and ran away from the spot after the accident and he was taken to the hospital by ambulance. Upon his statement the FIR was registered and site plan was prepared. The offending vehicle was seized by the police and mechanical inspection was carried out. Notice was issued to the owner of the vehicle u/s 133 M.V. Act and accused Vaseem was produced before the IO by the owner. The documents of the offending vehicle were seized and final MLC of the victim mentioning grievous injuries was collected and section 337 IPC was replaced with section 338 IPC. The investigation was completed by the IO and the accused was charge-sheeted for the offences punishable u/s 279 and 338 IPC.
3. Accused was produced before the court on 14.02.2013 and a copy of charge-sheet was supplied to him as per Section 207 Cr.P.C on 28.02.2013.
4. Thereafter, notice was framed against the accused for the offences punishable u/s 279/338 IPC on 10.07.2013. Further PW1/complainant was also partly examined on 19.09.2017 and the matter was pending trial at the stage of prosecution evidence. The parties settled the dispute between themselves and one settlement agreement dt. 01.08.2023 was also placed on record by the parties and they stated that they do not want to pursue the case. Thereafter, on 03.08.2023 a statement of the complainant/ victim Sh. Girish Shukla was recorded separately whereby inter alia he stated that he has settled the matter FIR no. 15/09 PS Jagatpuri State vs. Mohd. Vaseem Page no. 2 of 6 with the accused person and the offence u/s 338 IPC was compounded. Accordingly the charge of s. 279 IPC remained pending against the accused.
5. At this stage, it is relevant to understand that the offence of rash driving on a public way which is made punishable under Section 279 IPC. The provision is being reproduced hereinafter for better understanding:-
279. Rash driving or riding on a public way.- Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, 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.
From the perusal of the aforesaid provision, it is quite apparent that the prosecution has to prove that the accused was driving his vehicle on a public way in a 'rash' or 'negligent' manner which could have endangered human life or when such driving was likely to cause hurt or injury to any person. Thus the emphasis of the culpability as provided by the Code is on the terms 'rash' or 'negligent' and thus, the prosecution must be able to show enough evidence on record which establishes such conduct of the accused as either 'rash' or 'negligent' under the given fact situation. In the present case, the allegation of the prosecution is that the accused was driving his bus at a very high speed and thereafter he hit the complainant due to which his left leg came underneath the bus and the accused ran away from the spot and victim sustained injuries.
6. Powers u/s 258 Cr.P.C may be exercised in such cases and the proceedings have to be ordered to be stopped in the present case. Parties have settled the disputes between themselves and there are no chances of conviction of the accused. Substantive and the main offence u/s 338 IPC has already been compounded and no purpose would be served for continuing the trial for the FIR no. 15/09 PS Jagatpuri State vs. Mohd. Vaseem Page no. 3 of 6 offence u/s 279 IPC. Section 338 IPC has been made compoundable but section 279 IPC is not compoundable.
7. It is relevant to rely upon case titled as "Adwait Surendra Aatre Vs. The State of Maharashtra & Ors.", in Criminal Application No. 124 of 2011 dated 7.04.2011, wherein the Hon'ble Bombay High Court has observed as follows:
7. After minute reading of both these sections, it is seen that the alleged act of rash and negligent driving, endangering human life, is required to be proved as necessary ingredient to constitute offence u/s 279 I.P.C. and by allegedly doing any act rashly or negligently as to endangering the human life are also the same ingredients to constitute the offence u/s 338 I.P.C. Therefore, such ingredients which are common, cannot be separately dealt with. The requirement of offence u/s 338 is all that is covered in section 279 of IPC. As specifically mentioned in the code, when the offence u/s 338 is compoundable, there cannot be any impediment or bar to hold that the alleged offence u/s 279 of I.P.C. read with 338 of 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 388 of I.P.C. in the present case. In short, the offence u/s 338 I.P.C. 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 head u/s 279 of I.P.C.
Though it may not be a second trial, but the accused, who is once acquitted from the charge u/s 338 IPC upon compounding of the charge based on the same evidence, would be vexed, if he is directed to under go further trial u/s 279 for lesser punishment. Thus, by the present application, the applicant has made out a case for compounding of offence.
Therefore, upon perusal of the aforesaid observations, this court is satisfied that once the offence u/s 338 IPC is compounded, the trial against the accused for section 279 IPC would be a nugatory exercise and would only waste precious judicial time and resources. Further, this court is also of the opinion that FIR no. 15/09 PS Jagatpuri State vs. Mohd. Vaseem Page no. 4 of 6 complainant would also suffer if he is called again to the court for the purpose of evidence at the relevant stage, once he has already given his statement that he has settled the matter with the accused. Therefore, the entire trial would be a mere technical formality and would rather become a punishment for the accused as well as the complainant.
8. The Hon'ble High Court of Bombay was of the view that once under Section 337 & 338 IPC is compounded, continuing the trial for the offence under Section 279 IPC shall be vexing the accused twice. Keeping in view the circumstances of the case, the decision of Hon'ble Bombay High Court and the futility in proceeding with the trial of section 279 IPC especially when the major offence of section 338 IPC has already been compounded by the victim, this Court is of the considered opinion that the present case is a fit case for exercising power u/s 258 Cr.P.C, which is reproduced below:
258. "Power to stop proceedings in certain cases. In any summons case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge."
9. Therefore, it is directed that the proceedings in the present case u/s 279 IPC are hereby stopped which shall operate as discharge of the accused, as the injured and the IO have not been examined completely and their evidence has been dispensed with by this court.
FIR no. 15/09 PS Jagatpuri State vs. Mohd. Vaseem Page no. 5 of 6 Accordingly, in view of the findings given above, the accused is hereby released and such release shall have the effect of discharge for the offence under section 279 IPC.
10. Copy of this judgment be given free of cost to the accused against receiving. Digitally signed by BHARAT BHARAT AGGARWAL AGGARWAL Date:
2023.08.03 15:36:22 +0530 ANNOUNCED IN OPEN COURT (Bharat Aggarwal) Today i.e. 03.08.2023 MM-05/ SHD, Karkardooma Courts/Delhi Present judgment consists of 6 pages and each page bears my initials.Digitally signed
by BHARAT BHARAT AGGARWAL AGGARWAL Date: 2023.08.03 15:36:29 +0530 (Bharat Aggarwal) MM-05/ SHD, Karkardooma Courts/Delhi/03.08.2023 FIR no. 15/09 PS Jagatpuri State vs. Mohd. Vaseem Page no. 6 of 6