Madras High Court
Alagesh Kumar @ Azhagesh Kumar vs State Rep. By on 21 September, 2023
Crl.O.P(MD).No.5105 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 21.09.2023
CORAM:
THE HONOURABLE MR. JUSTICE P. DHANABAL
Crl.O.P(MD).No.5105 of 2021
and
Crl.M.P.(MD)No.2933 of 2021
Alagesh Kumar @ Azhagesh Kumar ...Petitioner
Vs
State Rep. By,
The Inspector of Police,
K.Pudur Police Station,
Madurai.
(Crime No.462 of 2018) ...Respondent
PRAYER: Criminal Original Petition filed under Section 482 of the Code of
Criminal Procedure, praying this Court to call for the entire records pertaining
to the impugned charge sheet in S.C.No.547 of 2019 for the offence under
Sections 279 and 308 of IPC in connection with Cr.No.462 of 2018 on the file
of the learned II Additional Sub Judge, Madurai as against the petitioner and
quash the same as against the petitioner as illegal.
For Petitioner : Mr.G.Karuppasamy Pandiyan
For Respondent : Mr.M.Sakthi Kumar
Government Advocate (Crl. Side)
ORDER
This petition is filed to quash the charge sheet in S.C.No.547 of 2019 on the file of the II Additional Sub Court, Madurai. https://www.mhc.tn.gov.in/judis 1/10 Crl.O.P(MD).No.5105 of 2021
2.According to the petitioner, the respondent registered a FIR in Crime No.462 of 2018 for the offence under Sections 279 and 308 of IPC. Thereafter, the investigation was completed in this case and filed final report. The learned Principal Sessions Judge, Madurai had taken cognizance in S.C.No.547 of 2019 and the same was made over to the learned Additional Sub Judge for further proceedings.
3.According to the prosecution case, the defacto complainant and another Head Constable indulged in vehicle checkup, at that time, the petitioner came in a rash and negligent manner in intoxication and dashed against the injured, and one Raja SSI gave a complaint and injured has not given any complaint. Even as per the FIR and charge sheet, the offence under Sections 279 and 308 of IPC would not attract. To attract offence under Sections 279 and 308 of IPC, the accused should have committed the act with intention or knowledge to attempt to commit culpable homicide not amounting to murder. In this case, there is no material to show that the petitioner committed the offence under Section 308 of IPC. Therefore, the respondent police without conducting proper investigation, mechanically filed the charge sheet under Sections 279 and 308 of IPC. Therefore, based on the final report, now the case is pending before the II Additional Sub Judge, https://www.mhc.tn.gov.in/judis 2/10 Crl.O.P(MD).No.5105 of 2021 Madurai. Hence, the pending case in S.C.No.547 of 2019 as against the petitioner is abuse of process of law and the pending charge sheet is liable to be quashed.
4.No counter was filed on the side of the respondents.
5.The learned counsel appearing for the petitioner would contend that the respondent police have registered the case for the offence under Sections 279 and 308 of IPC. Even according to the prosecution case, no offence under Section 308 of IPC made out and to constitute the offence under Section 308 of IPC, no material is available. Since the injured was Police Officer, the respondent Police have registered FIR under Sections 279 and 308 of IPC and without conducting proper investigation, filed final report for the offence under Sections 279 and 308 of IPC. Thereby, the case in S.C.No.547 of 2019 is abuse of process of law and the same is liable to be quashed.
6.The learned Government Advocate appearing for the respondent would contend that based on the complaint given by the defacto complainant, the respondent registered FIR in Crime No.462 of 2018 for the offences under Sections 279 and 308 of IPC. Thereafter, the case was investigated by the Investigating Officer and filed final report. Based on the final report, the https://www.mhc.tn.gov.in/judis 3/10 Crl.O.P(MD).No.5105 of 2021 learned Principal Sessions Judge, Madurai had taken cognizance in S.C.No. 547 of 2019 and the same was made over to the learned Additional Sub Judge for further proceedings. At this stage, this petition is not maintainable and liable to be dismissed.
7.This Court heard both sides and perused the materials available on records.
8.On perusal of the records, it is observed that on 16.06.2018, when the defacto complainant along with injured witness were on duty, the petitioner drove the vehicle in rash and negligent manner and dashed against one Palanikumar and caused grievous injury.
9.According to the petitioner, there are no ingredients to attract the offence under Sections 279 and 308 of IPC.
10.On perusal of records, it reveals that as per averments made in the FIR and final report, there is no ingredients to attract the offence under Section 308 of IPC. However, without any ingredients to constitute the offence under Section 308 of IPC, the charge sheet was filed by the respondent and the same was taken cognizance. Therefore, the cognizance https://www.mhc.tn.gov.in/judis 4/10 Crl.O.P(MD).No.5105 of 2021 taken by the Sessions Court for the offences without any material, is abuse of process of law. Hence, the charge under Section 308 of IPC as against the petitioner is liable to be quashed.
11.As far as Section 279 of IPC is concerned, prima facie records available to proceed with the case. It is admitted fact that so far charges were not framed by the trial Court. Therefore, the trial Court has to decide what are all the charges made out based on available records. After taking into consideration of entire material, the trial Court has to frame appropriate charges except under Section 308 of IPC.
12.The learned counsel appearing for the petitioner relied on the judgment of the Hon'ble Supreme Court in the case of Sunil Kumar v. N.C.T. Of Delhi and Others reported in (1998) 8 SCC 557, wherein the Hon'ble Supreme Court in para no.4 held as follows:-
“The view taken by the High Court is obviously erroneous because offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable https://www.mhc.tn.gov.in/judis 5/10 Crl.O.P(MD).No.5105 of 2021 under Section 308 IPC whereas punishment for simple hurts can be meted out under Sections 323 and 324 and for grievous hurts under Sections 325 and 326 IPC. Qualitatively, these offences are different. The High Court was thus not well advised to take the view as afore-extracted to bring down the offence to be under Sections 323/34 IPC and then in turn to hold that since that offence was investigated by the police without permission of the magistrate, the proceedings under that provision be quashed. For the view afore-taken as to the commission of the offence under Sections 308/34 IPC, it is not necessary to dwell on the correctness of the second part of the order relating to quashing of proceedings under Sections 323/34 IPC. Thus, the entire order of the High Court deserves to be and is hereby quashed, restoring the status quo ante of the trial remaining with the Additional Sessions Judge to proceed in accordance with law.”
13.The learned counsel appearing for the petitioner relied on the judgment of the High Court of Kerala in the case of A.J.Antony v. State of Kerala and Others in Crl.M.C.No.1608 of 2018, wherein the High Court in para no.4 held as follows:-
“4. In the Final Report it is stated that the accident would have caused death of a person, which is very strange. The facts of the case do not attract Section 308 IPC. The Final Report is liable to be quashed so far as Section 308 IPC is concerned. But the facts of the case attract the offences under Sections 279 IPC and 120(j) https://www.mhc.tn.gov.in/judis 6/10 Crl.O.P(MD).No.5105 of 2021 KP Act.
In the result, this Crl.M.C is allowed in part. The Final Report in C.P.No.14 of 2017 on the file of the Judicial First Class Magistrate Court-VIII, Ernakulam is quashed so far as Section 308 IPC is concerned. It follows that the case shall be tried by the Magistrate having jurisdiction.”
14.A careful reading of the aforesaid judgments, it is clear that in order to attract Section 308 of IPC, doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under Section 308 of IPC whereas punishment for simple hurts can be meted out under Sections 323 and 324 of IPC and for grievous hurts under Sections 325 and 329 of IPC. In the case on hand also, the allegation is that the petitioner caused accident and thereby, the injured sustained injuries but no ingredients to constitute the offence under Section 308 of IPC. Hence, this aforesaid case laws are squarely applicable to the present case.
15.In view of aforesaid judgments and in view of the discussion above, it is appropriate to quash the pending S.C.No.547 of 2019 as against the https://www.mhc.tn.gov.in/judis 7/10 Crl.O.P(MD).No.5105 of 2021 petitioner for the offences under Section 308 of IPC alone.
16.As far as offence under Section 279 of IPC is concerned, the Sessions Court has to take steps to return back the bundle to the concerned Jurisdictional Court for further proceeding in accordance with law.
17.At this juncture, the learned counsel appearing for the petitioner requested this Court to pass orders to dispense with personal appearance of the petitioner before the trial Court. It is for the trial Court to decide whether appearance of the petitioner is requires or not. If any application filed by the petitioner, the trial Court can consider the application in accordance with law.
18.Therefore, as discussed above, this Criminal Original Petition is partly allowed and the pending charge sheet in C.C.No.547 of 2019 on the file of the II Additional Sub Court, Madurai as against the petitioner for the offence under Section 308 of IPC alone is quashed. Consequently, connected miscellaneous petition is closed.
21.09.2023 NCC : Yes/No Internet : Yes/No Index : Yes/No Mrn https://www.mhc.tn.gov.in/judis 8/10 Crl.O.P(MD).No.5105 of 2021 Note: The Registry is directed to return the original documents if any, to the II Additional Sub Court, Madurai, for further proceedings. To
1.The II Additional Sub Judge, Madurai
2.The Inspector of Police, K.Pudur Police Station, Madurai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis 9/10 Crl.O.P(MD).No.5105 of 2021 P.DHANABAL, J.
Mrn Crl.O.P(MD).No.5105 of 2021 21.09.2023 https://www.mhc.tn.gov.in/judis 10/10