Delhi District Court
State vs Astha Mathur on 4 February, 2012
IN THE COURT OF MS. SHUCHI LALER
METROPOLITAN MAGISTRATE - 04 : EAST:
KARKARDOOMA COURT : DELHI.
FIR No. 104/05
U/s 279/337 IPC
PS New Ashok Nagar
STATE Vs ASTHA MATHUR
JUDGMENT:
A Sr. No. of the case 02402R0 53217 2005
B Date of institution 02/07/2005
C Date of commission of 03/03/2005
offence
D Name of the complainant Sh. M. V. Saju, s/o Sh. M. A. Willaten
E Name of the accused & Astha Mathur, d/o Sh. Umesh Das Mathur,
his parentage and address r/o 90, Savarkar Appartments, Plot No.39,
Patpar Ganj, I.P.Extension, Delhi.
F Offence complained of U/s 279/337 IPC
G Plea of the accused Pleaded not guilty
H Order Reserved on 04/02/12
I Final order Acquitted
J Date of such order 04/02/12
BRIEF FACTS AND REASONS FOR DECISION
1) The story of the prosecution is that on 03.03.2005 at 12 noon near Mayur Vihar PhaseIII Bus Stand, Delhi, within the jurisdiction of PS New Ashok Nagar, the accused Astha Mathur was driving the vehicle bearing no. DL2CZ9843 in a rash and negligent manner and while driving the said FIR No. 104/05 PS New Ashok Nagar State Vs. Astha Mathur Page No. 1 / 12 vehicle in such a manner, the accused struck against the complainant, Sh. M. V. Saju, s/o Sh. M. A. Willuten, as a result of which the complainant Sh. M. V. Saju sustained Simple injuries and the accused is alleged to have committed offence punishable under section 279/337 IPC.
2) On the basis of the said allegations and on the complaint of the complainant Sh. M. V. Saju, the FIR bearing number 104/05 under section 279/337 IPC was lodged at Police Station New Ashok Nagar on 03.03.2005.
3) After investigation, chargesheet under section 173 Cr.P.C was filed on 02.07.2005. The accused was summoned to face trial and he was supplied the copy of charge sheet as per section 207 Cr.P.C. On the basis of the chargesheet, a notice for the offence punishable under section 279/337 IPC was framed against the accused Astha Mathur and read out to the said accused, to which the accused pleaded not guilty and claimed trial on 21.03.2007.
JUDICIAL RESOLUTION To bring home the guilt of rash and negligent driving to the accused, the prosecution needs to prove the following three essential ingredients.
(1) That the accident actually took place.
FIR No. 104/05 PS New Ashok Nagar State Vs. Astha Mathur Page No. 2 / 12 (2) That the accident took place due to rash and negligent driving.
(3) That the accused was the person who was driving the vehicle at the relevant time.
These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Blacks Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
Quoting from the article "Negligence, Mens Rea and Criminal Responsibility" by H.L.A.Hart in Punishment and Responsibility the dictionary further goes on to explain the difference between an act done inadvertently and an act done negligently.
"[A] careful consideration is needed of the difference between the meaning of the expression like 'inadvertently' and 'while his mind was a blank' on the one hand, and 'negligently' on the other hand. In ordinary English, and also in Lawyer's English, when harm has resulted from someone's negligence, if we say of that person that he has acted negligently we are not thereby merely describing the frame of mind in which he acted. 'He negligently broke a saucer' is not the same kind of expression as 'he inadvertently broke a saucer'. The point of adverb 'inadvertently' is merely to inform us of the agent's psychological state, FIR No. 104/05 PS New Ashok Nagar State Vs. Astha Mathur Page No. 3 / 12 whereas if we say 'He broke it negligently' we are not merely adding to this an element of blame or reproach, but something quite specific, viz. we are referring to the fact that the agent failed to comply with a standard of conduct with which any ordinary reasonable man could and would have complied: a standard requiring him to take precautions against harm. The word 'negligently', both in legal and non legal contexts, makes an essential reference to an omission to do what is thus required: it is not a flatly descriptive psychological expression like 'his mind was a blank'."
The Oxford Advanced Learner's Dictionary, Sixth Edition defines 'Rash' as doing something that may not be sensible without first thinking about the possible results.
Elaborating further, in State of H.P. v. Piar Chand, Cr. Appeal No. 109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, while dealing with the meaning of the expression " rashness " and " negligence " held as follows :
"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care FIR No. 104/05 PS New Ashok Nagar State Vs. Astha Mathur Page No. 4 / 12 and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a individual."
In order to prove the above said allegations, the prosecution cited 7 witnesses, of which the prime witness is Sh. M. V. Saju, who has been cited as PW1 in the list of witnesses. All the other remaining witnesses are formal witnesses and none of them is a witness to the accident.
DO HC Rajendra Prasad appeared as PW1 who proved the present FIR Ex.PW1/A and he made endorsement on the rukka Ex.PW1/B. Except prime witness Sh. M. V. Saju, all the remaining 6 witnesses cited by prosecution are formal witnesses and sufficient only to prove that the complainant got injured and that an FIR with respect to the said incident was lodged on the same day at PS New Ashok Nagar vide FIR bearing No. 104/05.
PW Sh. M. V. Saju was summoned on several occasions and he was also summoned through IO as well as through DCP concerned, however, the summons sent to the PW Sh. M. V. Saju were received back unserved with the report that he had left the given addresses and was not traceable. Thus, in view of the report on summons, the court came to the conclusion that PW Sh. M. V. Saju was not traceable and vide order dated 04.02.2012 the said FIR No. 104/05 PS New Ashok Nagar State Vs. Astha Mathur Page No. 5 / 12 witness/complainant has been dropped from the list of witnesses.
In the absence of testimony of the prime witness Sh. M. V. Saju, the prosecution could never prove that the injuries sustained by the complainant Sh. M. V. Saju in the present case were a result of an act of accused and that the accident was caused by the vehicle bearing number DL2CZ9843, which was being driven by the accused Astha Mathur in a rash and negligent manner.
In the present case there is one prime witness namely Sh. M. V. Saju, who could not appear before the court for his deposition. No other witness is competent enough to prove the guilt of the accused.
In the absence of testimony of Sh. M. V. Saju, the testimony of all the remaining witnesses together is insufficient to prove the allegations against the accused qua offences u/s 279/337 IPC.
The case is at the stage of PE, however, in the absence of testimony of Sh. M. V. Saju, there is nothing incriminating against the accused for proceeding further and recording the statement of remaining formal witnesses would be futile and wastage of judicial time, resources and money.
In the opinion of the court, the present case is a fit case where the court should exercise its power under section 258 of Cr.P.C and stop the FIR No. 104/05 PS New Ashok Nagar State Vs. Astha Mathur Page No. 6 / 12 proceedings qua offences u/s 279/337 IPC as continuing with trial will not only be wastage of state money rather it will also be wastage of judicial time and harassment to the accused.
In "P. Ramachandra Rao v. State of Karnataka" AIR 2002 SUPREME COURT 1856 ( Coram : 7 S. P. BHARUCHA, C.J.I., S. S. M. QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, Mrs. RUMA PAL, A. PASAYAT, JJ.) the Honorable Supreme Court while commenting upon the right to speedy justice observed:
"22. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. Explanation2 to Section 309 confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. Section 258, in Chapter XX of Cr.P.C., on Trial Summons cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, FIR No. 104/05 PS New Ashok Nagar State Vs. Astha Mathur Page No. 7 / 12 for reasons to be recorded by him, to 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, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power to the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under Section 482 of Cr.P.C. for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied) "30.For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380) (as modified in Common Cause (II) 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195 (1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596) and Raj Deo Sharma (I) and (II) (1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1998 Cri LJ 4541), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or FIR No. 104/05 PS New Ashok Nagar State Vs. Astha Mathur Page No. 8 / 12 a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold: (1) The dictum in A.R. Antulay's case is correct and still holds the field.
(2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial. We uphold and reaffirm the said propositions. (3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket formula. Their applicability would depend on the factsituation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The timelimits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma Case (I) and (II) . At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such timelimits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and a mandatorily obliging the court of terminate the same and acquit or discharge the accused.
(5) The Criminal Courts should exercise their available FIR No. 104/05 PS New Ashok Nagar State Vs. Astha Mathur Page No. 9 / 12 powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions. (6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary - quantitatively and qualitatively by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act." (emphasis supplied) In "Pankaj Kumar v. State of Maharashtra" AIR 2008 SUPREME COURT 3057 (Coram : 2 C. K. THAKKER AND D. K. JAIN, JJ.)the Honorable Supreme Court, while relying upon the aforesaid judgment, observed:
"16. Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down timelimits as bar beyond which a criminal trial shall not proceed pronouncements of this Court in "Common Cause" A Registered Society Vs. Union of India (UOI) and Ors., "Common Cause", A Registered Society Vs. Union of India and Ors., Raj Deo Sharma Vs. State of Bihar and Raj Deo Sharma II Vs. State of Bihar gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused. The confusion on the issue was set at rest by a sevenJudge Bench of this court in P. Ramachandra Rao Vs. State of Karnataka. Speaking for the majority, R.C. Lahoti, J. (as his Lordship then was) while affirming that the FIR No. 104/05 PS New Ashok Nagar State Vs. Astha Mathur Page No. 10 / 12 dictum in A.R. Antulay's case (supra) is correct and still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the A.R. Antulay's case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket formula. Their applicability would depend on the factsituation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial. In appropriate cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. The outer limits or power of limitation expounded in the aforenoted judgments were held to be not in consonance with the legislative intent." (emphasis supplied) Accordingly, in the opinion of the court, in the light of the above cited judgments, the court needs to exercise its power under section 258 Cr.P.C qua offences u/s 279/337 IPC to make the ends of justice meet.
In the absence of testimony of prime witness / complainant namely Sh. M. V. Saju and in the light of the aforesaid discussion and cited judgments, the court while protecting the right of the accused to have speedy justice invokes the power conferred upon it under S.258 of Cr.P.C to stop the proceedings against the accused Astha Mathur qua offence u/s 279/337 IPC in FIR No. 104/05 PS New Ashok Nagar State Vs. Astha Mathur Page No. 11 / 12 the present summoned police case and hereby releases the accused Astha Mathur under section 279/337 IPC, which shall have the effect of acquittal.
As per section 437A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bond and the surety bond of the accused as well as surety shall remain intact for a period of six months from today.
File be consigned to Record Room.
Announced in open (SHUCHI LALER )
court on 04.02.2012 MM04/ East/ KKD, Delhi
Certified that this judgment contains 12 pages and each page bears my signatures.
(SHUCHI LALER ) MM04/ East/ KKD, Delhi 04.02.2012 FIR No. 104/05 PS New Ashok Nagar State Vs. Astha Mathur Page No. 12 / 12