Karnataka High Court
Syed Yusuf vs State Of Karnataka on 20 September, 2018
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL REVISION PETITION NO.307/2018
C/W
CRIMINAL REVISION PETITION NO.1032/2016
IN CRL.R.P. NO.307/2018
BETWEEN:
Syed Yusuf
S/o Syed Mehboob,
Aged About 26 Years,
No.38, 6th Cross,
Manganapalya Main Road,
Bomanahalli Main Road,
Hosur Main Road,
Bangalore ... Petitioner
(By Sri. Bharath Kumar V, Advocate )
AND
State of Karnataka
Through Station House Officer,
Kumaraswamy Layout Police Station,
Represented by
The State Public Prosecutor,
2
Honble High Court of Karnataka
Bangalore - 560001 ....... Respondent
(By Sri.K.P.Yoganna, HCGP)
This Criminal Revision Petition is filed U/S. 397
R/W 401 Cr.P.C by the advocate for the petitioner praying
that this Hon'ble Court may be pleased to set aside the
order dated 30.06.2016, passed by the Hon'ble Court of
LXIX Additional City Civil and Sessions Judge (CCH-70) in
matter bearing Sessions Case No.175/2014, and
consequently, discharge the petitioner herein of alleged
offences under Section 279 and 304 of IPC, Section 5 r/w
180, Section 14 r/w Section 106 and Section 190 r/w 115
of the Indian Motor Vehicles Act in matter bearing
Sessions Case No.175/2014, pending on the file of the
Hon'ble Court of LXIX Additional City Civil and Sessions
Judge (CCH-70) Annexure 'A' and etc.,
IN CRL.R.P. NO.1032/2016
BETWEEN
Mohammed Arif
S/o. Mohammed Ummer,
Aged about 28 years,
R/at No.61, 7th cross,
Madinanagar,
Bommanahalli,
Bengaluru-560 068. ... Petitioner
(By Sri. B.N. Balasubramanya, Advocate )
3
AND
1. The State of Karnataka by
Kumaraswamy Layout Police,
Bengaluru,
Rep by State Public Prosecutor,
High Court Complex,
Bangalore-560 001
2. Subramani
S/o Late. Parashuramappa,
Aged about 73 years,
R/at No.1235, 23rd Cross,
30th Main, B.S.K. 2nd stage,
Bangalore-560070. ... Respondents
(By Sri.K.P.Yoganna, HCGP)
This Criminal Revision Petition is filed u/s. 397 r/w
401 Cr.P.C by the advocate for the petitioner praying that
this Hon'ble Court may be pleased to set aside the order
dated 30.06.2016 in dismissing the dischargal application
in S.C.No.175/2014 registered by the respondent police
for the offence p/u/s 279, 304 of IPC and Sections 5, 180,
14, 106, 190, 115 of Indian Motor Vehicle Act pending on
the file of the LXIX Addl. City Civil and S.J., Bangalore
(CCH-70) and direct the learned Sessions Judge to rehear
and etc.,
These Criminal Revision Petitions coming on For
Admission, this day, the Court made the following:
ORDER
The Crl.R.P.No.307/2018 has been filed by the petitioner-accused No.2 and Crl.R.P.No.1032/2016 has 4 been filed by the petitioner-accused No.1 challenging the order passed by LXIX Additional City Civil and Sessions Judge (CCH 70) in S.C.No.175/2014 dated 30.06.2016, where under the applications filed under Sections 227 and 228 of Cr.P.C came to be dismissed.
2. These two petitions are arising out of the same order. Though two different contentions have been taken up, for the purpose of disposal, the same have been clubbed in order to avoid repetition of facts and law.
3. I have heard learned counsel appearing for the petitioners and learned High Court Government Pleader.
4. The brief facts of the case in nutshell are that accused No.3 is the owner of the vehicle, accused No.2 was the custodian and accused No.1 requested accused No.2 that he is in need of a car and as per the request of accused No.1, accused No.2 contacted accused No.3 to handover the vehicle and its key to accused No.1 and accordingly, the said vehicle has been handed over to 5 accused No.1 and on 07.07.2013, accused No.1 was proceeding on Ring road with the vehicle and met with an accident at about 11:00 p.m. and in the alleged act, three persons died on the spot and on the basis of the said complaint, a case was registered in Crime No.239/2013 and charge-sheet has been filed against accused Nos.1 to
3. When the matter was pending before the Court below, accused Nos.1 and 2 filed applications under Sections 227 and 228 of Cr.P.C by contending that there is no prima facie material to proceed against the accused-petitioners and prayed to discharge them on various grounds.
5. The trial Court, after considering the objections of learned Public Prosecutor and after hearing both the sides, by impugned order, dismissed both the petitions. Challenging the same, accused Nos.1 and 2-petitioners are before this Court.
6. It is the contention of learned counsel for the petitioner-accused No.1 that accused-petitioner is not 6 involved in the alleged crime and he was also not present at the time when the alleged incident took place. He further submitted that the provisions of Section 304 of IPC are not attracted so as to prosecute petitioner-accused No.1. It is his further submission that if at all the entire prosecution case is looked into, at the most, the provisions of Sections 279, 304A of IPC are attracted, but not the provisions of Section 304 of IPC. The Court below, without considering all these aspects, has wrongly dismissed the said petition. He further submitted that when there is no prima facie material to proceed against the accused, then under such circumstances, he is entitled to be discharged. On these grounds, he prayed to allow the petition and to discharge petitioner-accused No.1.
7. It is the submission of learned counsel for the petitioner-accused No.2 that it is an admitted fact that accused No.3 is the owner, accused No.2 is the custodian of the vehicle and accused No.1 was permitted to drive or use the said car and at the time when accused No.1 was 7 using the car, the alleged incident has taken place. In that light, he submitted that there is no mens rea so as to attract any one of the provisions of the Indian Penal Code. He further submitted that without there being any mens rea, accused cannot be held liable. He also submitted that neither the petitioner-accused No.2 drove the said car nor he was present at the wheel and even on the ground of vicarious liability also he cannot be made liable. He further submitted that at the most, it is accused Nos.1 and 3 who can be made liable and not accused No.2 as neither he is the owner nor he has driven the car on the date of the alleged incident. He further submitted that only as per the instruction of accused No.3, with his consent, he has handed over the key of the car to accused No.1 and he was not having any malifide intention so as to commit the alleged offence. He further submitted that he has only carried the instruction of accused No.3, nothing more than that. The trial Court has not properly appreciated the facts in issue and has wrongly dismissed 8 the application. On these grounds, he prayed to allow the petition and discharge petitioner-accused No.2.
8. Per contra, learned High Court Government Pleader vehemently argued and submitted that at the time of considering the applications filed under Sections 227 and 228 of Cr.P.C, the Court cannot hold a mini trial, but can frame the charge on the basis of the material which has been placed on record. He further submitted that the act of the accused clearly indicates the fact that the accused person was knowing that if the said vehicle is driven in such a manner then under such circumstances, it is likely to cause death of the person on the road and accused Nos.2 and 3 knowing fully well that accused No.1 was not holding any valid and effective driving license and even the said vehicle was also not insured with any of the insurer, handed over the key carelessly to accused No.1 and in that light, the charge-sheet has been filed as against accused No.3. There is prima facie material to show that accused persons have been involved in the 9 alleged crime and at this pre-mature stage, it cannot be held that there is no material as against accused- petitioner to discharge by holding that there is no material. He also alternatively submitted that if at all any grievance is there to petitioner-accused No.1, he can file an appropriate application before the Court below to alter the charge, to convert the said Section 304 into 304A of IPC. That right is always available to the accused- petitioner. On these grounds, he submits that petitioners have not made out any good grounds to interfere with the impugned order. The same is liable to be confirmed by dismissing the petitions.
9. I have carefully and cautiously gone through the grounds of both the petitions and also submissions made by learned counsel appearing for the parties and I have also perused the entire records produced along with the petitions and the lower court record.
10
10. The primary contention of learned counsel for the petitioner-accused No.1 is that the provisions of Section 304 of IPC is not applicable as at the time when the alleged incident has taken place, the accused- petitioner was not present and even his presence is not stated by any of the witnesses. He further submitted that there are several inconsistencies and contradictions and at the most, the alleged offence attracts the provisions of Section 304A of IPC along with Section 279 of IPC.
11. I have carefully and cautiously gone through the contents of FIR and charge-sheet. Before going to consider the case on merits, I feel it just and proper to quote Section 304 of IPC. It reads as under:-
"304. Punishment for culpable homicide not amounting to murder.-
Whoever commits culpable homicide not amounting to murder shall be punished with (imprisonment for life), or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if 11 the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
CLASSIFICATION OF OFFENCE Para I : Punishment--Imprisonment for life, or imprisonment for 10 years and fine - Cognizable--Non-bailable--Triable by Court of Session--Non-Compoundable.
Para II : Punishment--Imprisonment for 10 years, or fine, or both--Cognizable--Non- bailable--Triable by Court of Session--Non- compoundable."
12. Section 304 contains two parts. Though the Section does not specify Part I and Part II, but by close reading of the said Section, Part I is referred in a different 12 context and Part II is applied in a different context. So in order to attract the said provisions, the prosecution has to prove the death of the person in question that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. Then under such circumstances, Part I is attracted. In so far as Part II is concerned, the prosecution has to prove the death of the person in question that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death. In order to find out that an offence is 'culpable homicide not amounting to murder' or 'murder', the definition of Sections 299 and 300 of IPC have to be seen in this behalf, that is a matter which has to be considered by the trial Court at the time of framing the charge.
13. Section 304A of IPC reads as under:-
["304A. Causing death by negligence.- Whoever causes the death of any person by 13 doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.] CLASSIFICATION OF OFFENCE Punishment-Imprisonment for 2 years, or fine, or both-Cognizable-Bailable-Triable by Magistrate of the first class-Non- compoundable."
14. A close reading of the said Section indicates that if any person causes death by any act of rash and negligence and if it is not amounting to culpable homicide, then under such circumstances, he is liable to be punished under Section 304A of IPC.
15. Keeping in view the above said provisions and their interpretation and closely reading the charge-sheet material, it is seen that when accused No.1 was driving Maruthi Zen car bearing registration No.KA-05-MA-1997 along with his wife and children on a Ring road, the 14 alleged incident has taken place at about 11:00 p.m and in that light, a case has been registered.
16. Though it is the contention of learned counsel for the petitioner-accused No.1 that he was not present and he was not having any intention to cause death of those three persons but that is a matter which has to be considered and appreciated only at the time of trial and not at this pre-mature stage. The Apex Court in the case of Alister Anthony Pareira Vs. State of Maharashtra, reported in 2012 (2) SCC 648 has observed that if a person is responsible for a reckless or rash or negligent act that causes death which he had knowledge, as a reasonable man, such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, he may be attributed with the knowledge of consequence and then he may be fastened with culpability of homicide not amounting to murder which is punishable under Section 304 of IPC. The said observation for the 15 purpose of brevity has been stated in para Nos.41, 42 and
43. The same is extracted as below:-
"41. A person, responsible for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with culpability of homicide not amounting to murder and punishable under Section 304 Part II of IPC.
42. There is no incongruity, if simultaneous with the offence under Section 304 Part II, a person who has 28 done an acct so rashly or negligently endangering human life or the personal safety of the others and causes grievous hurt to any person is tried for the offence under Section 338 IPC.
43. In view of the above, in our opinion there is no impediment in law for an offender being charged for the offence under Section 304 Part II IPC and also under Sections 337 16 and 338 IPC. The two charges under Section 304 Part II IPC and Section 338 IPC can legally co-exist in a case of single rash or negligent act where a rash or negligent act is done with the knowledge of likelihood of its dangerous consequences."
17. Hon'ble Apex Court has clearly held that there is no impediment in law for an offender being charged for the offence punishable under Section 304 Part II of IPC along with other Sections. In that light, the contention taken up by learned counsel for the petitioner-accused No.1 does not appears to be acceptable in law. Though it is the contention of the petitioner-accused No.1 that the Court below ought to have held that accused-petitioner at the most would be liable only under Sections 279 and 304A of IPC and not under Section 304 of IPC, that is a matter which has to be considered and appreciated only when all the evidence has been led by the prosecution. Even if the accused-petitioner proves that the provisions of Section 304 of IPC is not attracted, then the Court 17 below while considering the aspect can convict the accused for the offence punishable under Section 304A of IPC.
18. Be that as it may, I feel it just and proper to observe that the alternative charge can also be framed by the Court below for both Sections 304 and 304A of IPC and ultimately, if the prosecution succeeds that evidence is available to hold accused No.1-petitioner guilty for the offence punishable under Section 304 then 304 Part II of IPC can be applied and he can be convicted under Section 304 Part II or else as stated above, he can be convicted under Section 304A of IPC also. In that light, the petition which has been filed by petitioner-accused No.1 does not have any merit so as to interfere with the order of the Court below. The Court below, after considering all the aspects, has rightly come to the right conclusion and dismissed the petition filed by petitioner-accused No.1. 18
19. In so far as petitioner-accused no.2 is concerned, it is the contention of learned counsel for the petitioner that accused No.2-petitioner was not present at the time when the alleged incident took place and he was not having any mens rea and knowledge and he has not driven the said vehicle and he was not on the wheel at the time of alleged incident and he cannot be vicariously held liable. The charge-sheet material and submissions made by learned counsel for the petitioner indicates that accused No.1 was on the wheel and admittedly, it is accused No.3 who was the owner of the vehicle and accused No.2 was the custodian and so when accused No.1 requested accused No.2 with permission of accused No.3, as per his instruction, he handed over the key to accused No.1 and subsequently, as stated above the alleged incident has taken place. It is well settled principle of law that in order to hold the accused guilty, the prosecution has to prove mens rea. It is said in the legal maxim "Actus Non Facit Reum Nisi Mens Sit Rea" 19
which means, in order to constitute an offence, there must be mens rea coupled with the act. When admittedly accused No.2 was not present at the time of the alleged incident and there is no mens rea attributed to accused No.2-petitioner in this behalf, in that light, there is no prima facie material as against the petitioner accused No.2 to frame the charge and tried for the alleged offence. The petitioner-accused No.2 has made out a case in this behalf to interfere with the order of the trial Court. The trial Court without considering the said proposition of law and the facts, has wrongly dismissed the petition filed under Section 227 of Cr.P.C. Hence, the said Criminal Revision Petition No.307/2018 deserves to be allowed and accordingly, it is allowed and the impugned judgment in so far as petitioner-accused No.2 is concerned is allowed and he is discharged.
20. It is the contention of learned counsel for the petitioner-accused No.1 that if the provisions of Section 304A of IPC is attracted then under such circumstances, 20 he can file an appropriate application in accordance with law to alter the charge and the trial Court, after considering the material, can appropriately and legally frame the charge. With that liberty Criminal Revision Petition No.1032/2016 is dismissed as devoid of merits.
I.A.No.2/2018 and I.A.No.1/2016 does not survive for consideration and the same are disposed of.
Sd/-
JUDGE PYR/RB