Delhi District Court
State vs Priyam Kaushik on 19 December, 2014
IN THE COURT OF SH. AKASH JAIN, METROPOLITAN
MAGISTRATE06, PATIALA HOUSE COURTS, NEW DELHI
State Vs Priyam Kaushik
FIR No : 113/12
U/s : 279/337/304A IPC
PS : South Campus
JUDGMENT
a) Sl. No. of the case : 25B/02
b) Unique Case ID No. : 02406R0330642012
c) The date of commission of the
offence : 05.09.2010
d) Name of the complainant : ASI Matwar Singh
e) Name, parentage & address
of accused : Priyam Kaushik S/o Satya Pal Kaushik
R/o L301, Greem ValleyAppartment, Plot
No.18, Sector 22, Dwarka, New Delhi.
Permanent address : House No.237, Opp.
Defence School, Adarsh Enclave, Hisar
Cantt., Hisar, Haryana.
f) Offences complained of : 279/337/304A IPC
g) The plea of the accused : Pleaded not guilty
h) Final Judgment : Acquitted
i) Date of institution of case : 03.12.2012
j) Date of final arguments : 20.11.2014
k) Date of Judgment : 19.12.2014
BRIEF FACTS AND REASONS FOR THE DECISION:
1. In the present case chargesheet was filed by the State under Sections 279/337/304A of Indian Penal Code, 1860 (hereinafter mentioned as 'IPC') CC NO. 25B/02 FIR No.113/12 Page no. 1 of 11 against the accused Priyam Kaushik on 03.12.2012. The case of the prosecution is that on 05.09.2010, at about 05:30 pm, under loop Flyover, Dhaula Kuan, near ARSD College, New Delhi, the accused was driving his i20 car bearing registration no.HR20W9099 in a manner so rash or negligent so as to endanger human life and personal safety of others. Further, the case of prosecution is that while driving the said vehicle in the said manner accused hit against a scooter bearing registration no.DL3SAF 7879 and caused simple injuries to the complainant Ashok Kumar and death of Smt. Saroja W/o Sh. Ashok Kumar and thereby committed the offences punishable under section 279/337/304A of IPC.
2. On the basis of aforesaid chargesheet, Ld. Predecessor Court took cognizance of the offences under section 279/337/304A IPC against the accused. Upon appearance of the accused, the documents were supplied to him in compliance of section 207 of Code of Criminal Procedure 1973 (hereinafter mentioned as 'Cr.P.C.'). Notice under section 251 Cr.P.C. qua offences under section 279/337/304A IPC was served upon the accused by Ld. Predecessor Court to which he pleaded not guilty and claimed trial on 19.02.2013. Thereafter, the matter was fixed for prosecution evidence.
3. PW1 is SI Janak Raj who deposed that further investigation of the present case was marked to him on 03.10.2012 and he collected the MLC result of injured Ashok and on completion of investigation filed the charge sheet in the court.
CC NO. 25B/02 FIR No.113/12 Page no. 2 of 11
4. PW2 is ASI Matwar Singh, who deposed that on 05.09.2012 on receipt of PCR call vide DD No.23, he along with Ct. Naresh went to the spot of occurrence and found one scooter in accidental condition. He further got registered FIR in question vide endorsement Ex.PW2/A through Ct. Naresh and also prepared the site plan Ex.PW2/B at the instance of injured Ashok. He further arrested the accused and carried out his personal search vide memos Ex.PW2/C and Ex.PW2/D respectively. He correctly identified the accused in the court. Crossexamination of PW2 was deferred on the request of accused due to absence of his main counsel.
5. Summons issued against PW/injured Ashok Kumar who was also the sole eyewitness to the incident in question received back with the report that the witness had already died his natural death due to illness long ago. In the absence of testimony of victim/eyewitness Ashok Kumar, this court did not deem it expedient to record testimonies of remaining witnesses who were merely formal witnesses. Thus, while exercising the power u/s 258 Cr.P.C., this court stopped the proceedings of the present case as continuing with trial in this case would have resulted in wastage of judicial time, resources and money.
6. In order to bring home guilt of the accused for the offences under section 279/337/304A IPC, the prosecution was required to prove that the accused was driving the offending car bearing registration no.HR20W9099 on 05.09.2010, at about 05:30 pm, Under Loop Flyover, Dhaula Kuan, near CC NO. 25B/02 FIR No.113/12 Page no. 3 of 11 ARSD College, New Delhi in the manner so rash or negligent so as to endanger human life and personal safety of others and while driving the said car in the aforesaid manner, accused hit against a scooter bearing registration No. DL3SAF7879 and caused simple injuries upon the person of Ashok Kumar and caused death of deceased Saroja.
7. Thus, it is to be proved that accused was the person who was responsible for the incident directly i.e. there was direct nexus between the incident and the alleged 'rash and negligent' act of the accused. In order to better appreciate this point, let us first examine as to what amounts to 'rashness' or 'negligence'. In the case of State of Karnataka v. Muralidhar, (2009) 4 SCC 463, Hon'ble Supreme Court had held, ".........A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not. Lord Atkin in Andrews v. Director of Public Prosecutions (1937) AC 576 at p.583: 2 ALL E.R. 552) observed as under:
'Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied 'recklessness' most nearly covers the case. It is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify conviction for manslaughter; but it is probably not all embracing, for 'recklessness' CC NO. 25B/02 FIR No.113/12 Page no. 4 of 11 suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction'.
7. Section 304A applied to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person.
Negligence and rashness are essential elements under Section 304A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused............"
8. In the absence of testimony of victim/eyewitness Ashok Kumar, the fact that the death of the deceased and injuries caused to Ashok Kumar was a direct result of 'rash and negligent' act of accused can never be proved by the prosecution. This is thus, the apt case for exercise of power u/s 258 CC NO. 25B/02 FIR No.113/12 Page no. 5 of 11 Cr.P.C. to cut short the trial which would otherwise result in wastage of judicial time and harassment to the accused.
9. In P. Ramachandra Rao v. State of Karnataka AIR 2002 SC 1856, 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, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any CC NO. 25B/02 FIR No.113/12 Page no. 6 of 11 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."
".............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 CC NO. 25B/02 FIR No.113/12 Page no. 7 of 11 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 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 CC NO. 25B/02 FIR No.113/12 Page no. 8 of 11 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 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..........."
10. In Pankaj Kumar v. State of Maharashtra AIR 2008 SC 3057, the Hon'ble 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 CC NO. 25B/02 FIR No.113/12 Page no. 9 of 11 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 affirmin that the 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 strait jacket 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 courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to the right to speedy trial. In appropriate cases, jurisdiction of the High Court under Section 482 Cr.P.C. 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..............."
11. Accordingly, in the absence of testimony of eyewitness/injured CC NO. 25B/02 FIR No.113/12 Page no. 10 of 11 Ashok Kumar and in the light of aforementioned discussion and cited judgments, the court while protecting the right of accused to have speedy justice, invokes the power conferred upon it u/s 258 Cr.P.C. to stop the proceedings against accused Priyam Kaushik s/o Sh. Satyapal Kaushik qua offences u/s 279/337/304A IPC in the present summons police case and hereby releases the accused under aforementioned sections, which shall have the effect of acquittal.
Announced in the open Court (Akash Jain)
on 19.12.2014 Metropolitan Magistrate06,
Patiala House Court,
New Delhi
CC NO. 25B/02 FIR No.113/12 Page no. 11 of 11