Madras High Court
Order vs State Of Maharashtra [2012 (1) Supreme ... on 22 February, 2012
Author: M.M.Sundresh
Bench: M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22/02/2012 CORAM THE HON'BLE MR. JUSTICE M.M.SUNDRESH CRL.O.P.NO.3400 OF 2012 ORDER
Heard Shri.Shanmugasundaram, learned Senior Counsel for the petitioner, Shri.M.Maharaja, learned Additional Public Prosecutor for the respondent and perused the records.
2. Even though this Court is dealing with the bail applications, with dismay, it is constrained to take note of the disturbing trend in the ever increasing accidents taking away the lives of innocent hapless victims apart from causing grevious injury and loss of property, for no fault of theirs.
3. This great country has made giant strides in galloping speed in the field of automobile and transportation. Conventional mode of transport has been replaced by mechanical vehicles through the innovative automobile industry. Incidentally, India holds the dubious distinction of registering the highest number of road accidents in the world. According to the experts at the National Transportation Planning and Research Centre (NTPRC) the number of road accidents in India is three times higher than that prevailing in developed countries. The number of accidents for 1000 vehicles in India is as high as 35 while the figure ranges from 4 to 10 in developed countries.
4. Road Accident Statistics given by the Government of India upto the year 2004 and the estimated projections of accidents for the year 2015 are given hereunder:
Table 1 Road Accident Statistics Year All Roads National Highways Accidents Persons killed Persons injured Accidents Persons killed Persons injured 1999 386456 81966 375051 103839 28713 98427(P) 2000 391449 78911 399265 110508 30216 124600 2001 405637 80888 405216 115824 32108 119592(P) 2002 407497 84674 408711 131738 33621 132307 2003 406726 85998 435122 127834 33153 131102 2004(P) 429910 92618 464521 130265 34723 143140 Table 2 Estimated road accident statistics for the year 2015 Year No. of deaths No. of serious injuries No. of minor injuries 2015 154600 3092000 10822000
5. 80% of the road accidents are caused by human error. The unfortunate victims are predominantly male, within the age group of 5-44 years (approximately 70%). Therefore, the victims are the most productive section of the society. World Health Organisation in the Global Status Report on Road Safety has pointed out that speeding and drunken driving are the major contributing factors to road accidents. The Statistics also show that mostly young people between 18 to 35 more often indulge in drunken driving. According to National Crime Records Bureau (NCRB), the total number of deaths due to road accidents in India every year is now over 1,35,000. NCRB Report also states drunken driving as a major factor for road accidents. Our country has the dubious distinction of registering the maximum number of deaths in road accidents in the whole world.
6.This fact has been taken note of by the Honourable Apex Court in ALISTER ANTHONY PAREIRA vs. STATE OF MAHARASHTRA [2012 (1) SUPREME 34]. The facts narrated above are ground realities depicting a dark and scary picture of the future.
7. Mirza Galib, the 19th century poet has lamented thus: "Age travels at a galloping pace. We neither have the reins in our hand nor our feet on its stir-ups". While the life of the human being is measured between birth and death, the causes for termination of such a life are varied. Life is full of vissititudes. Life is as uncertain as a grape fruits squirt. However One's life cannot be taken away by any other except by the authority of law. In an accident there is absolutely no prior connection between the driver and the victim. However the driver becomes the cause for the termination of a victim's life. Therefore there is a predominant duty imposed upon the State and Courts to see to it that appropriate steps are taken and implemented to minimise the accidents.
8. About 2000 years ago, Great Saint Thiruvalluvar in Kural No.561 has said thus :
"jf;fh';F ehof; jiyr;bry;yh tz;zj;jhy; xj;jh';F xWg;gJ nte;J;" [Taking cognisance of an offence in his realm, the king makes enquiries and imposes a penality, which is appropriate to the gravity of the offence and ensures prevention.] The saying reminds us of our duty towards the fellow human being in reducing the accidents for a better life. It is not only the responsibility of the State through its law making power and investigating agency, but the Courts also have an equal duty to see to it that they are implemented in letter and spirit.
Whether an accident involving a death of a driver in a drunken state would attract Section 304 (ii) IPC.
9. For the first time, this Court has come across a case in which for an accident due to drunken driving, the respondent has charged the accused for an offence within the rigour of Section 304(ii) IPC. Since the learned senior counsel appearing for the petitioner has made a faint attempt to impress upon this Court that the said provision of law would not be attracted and considering the overall scenario, this Court is constrained to go into the same.
10. The issue involved is no longer res integra. It has been considered at length by the Honourable Apex Court in ALISTER ANTHONY PAREIRA vs. STATE OF MAHARASHTRA [2012 (1) SUPREME 34]. Therefore, it is imperative for this Court to look into the reasoning rendered by the Honourable Apex Court in the said judgment referred supra. Considering the said issue, it has been held by the Honourable Apex Court in the following manner:
"35.In Empress of India v. Idu Beg [1881 (3) All 776], Straight J., explained the meaning of criminal rashness and criminal negligence in the following words: criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted.
40.Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death may fall in the category of culpable homicide not amounting to murder. A person, doing an act of rash or negligent driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the result. As a matter of law - in view of the provisions of the IPC - the cases which fall within last clause of Section 299 but not within clause `fourthly' of Section 300 may cover the cases of rash or negligent act done with the knowledge of the likelihood of its dangerous consequences and may entail punishment under Section 304 Part II IPC. Section 304A IPC takes out of its ambit the cases of death of any person by doing any rash or negligent act amounting to culpable homicide of either description.
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 IPC.
42.There is no incongruity, if simultaneous with the offence under Section 304 Part II, a person who has done an act 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 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.
44.By charging the appellant for the offence under Section 304 Part II IPC and Section 338 IPC - which is legally permissible - no prejudice has been caused to him. The appellant was made fully aware of the charges against him and there is no failure of justice. We are, therefore, unable to accept the submission of Mr. U.U. Lalit that by charging the appellant for the offences under Section 304 Part II IPC and Section 338 IPC for a rash or negligent act resulting in injuries to eight persons and at the same time committed with the knowledge resulting in death of seven persons, the appellant has been asked to face legally impermissible course.
66.We agree with the conclusions of the High Court and have no hesitation in holding that the evidence and materials on record prove beyond reasonable doubt that the appellant can be attributed with knowledge that his act of driving the vehicle at a high speed in the rash or negligent manner was dangerous enough and he knew that one result would very likely be that people who were asleep on the pavement may be hit, should the vehicle go out of control. There is a presumption that a man knows the natural and likely consequences of his acts. Moreover, an act does not become involuntary act simply because its consequences were unforeseen. The cases of negligence or of rashness or dangerous driving do not eliminate the act being voluntary. ....."
11. The above reasoning adopted by the Honourable Apex Court clinches the entire issue. In a case where an allegation has been made that the accident has been caused by the act of the alleged accused and the materials would disclose that he was in a drunken mood at the relevant point of time, the investigating agency is bound to register the case under Section of 304(ii) IPC. This position is rather very clear by a proper analysis of the judgment rendered by the Honourable Apex Court referred supra. This Court makes it clear that it is one thing to say that the prosecution has not proved beyond reasonable doubt the offence under Section 304(ii), 338 and 337 IPC, but it cannot be said that in the case of an accident said to be arising out of a drunken state of the driver resulting in a death, the accused cannot be charged under Section 304(ii) IPC.
Drunken Driving:
12. Dr. Sir C.V.Raman was once offered liquor in a party in honour of him. The great Scientist jokingly commented "you have seen the Raman's effect on the liquor but I do not want you to see the liquor's effect on Raman." Liquor does have its effect on a man; for what else one would indulge in drinking.
13. Both the learned senior counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondent brought to the knowledge of this Court about the consistent approach adopted by the various Magistrate Courts across the state in dealing with the cases registered for drunken driving. It appears that all those cases registered for the said offences are dealt with very leniently by only imposing fines, as invariably the accused would plead guilty. This Court is of the view that such an approach of the Magistrate Courts are contrary to law apart from public interest. A perusal of Section 185 of the Motor Vehicles Act, 1988 would no where lead to a conclusion that in all cases a fine alone has to be imposed. What has been stipulated under the said Section is that the punishment for the first offence may vary from fine, 6 months or both. For the second offence, if committed within three years of the previous similar offence, a punishment is stipulated for a maximum period of two years with fine of a maximum cap of Rs.3000/- or both. While dealing with such a case, the Courts will have to understand that a punishment imposed will have to be a detriment not only to the accused but also to others who are likely to commit such an offence. That is the reason why a crime is considered to be one against the society even though it is actually committed against an individual. The only way to reduce accident due to drunken driving is to stop such driving. People must be made known to drive with care as life has no spare. The uncalled enthusiasm and exuberance of a young driver requires adequate control. By mechanically imposing fine the very purpose and the object of the enactment would be lost. Therefore it is imperative for us to remind ourselves about the object behind the criminal jurisprudence. Considering the issue of liberty vis-a-vis the public interest in SIDDHARAM SATLINGAPPA MHETRE vs. STATE OF MAHARASHTRA AND OTHERS [(2011) 1 SCC 694] it has been held by the Honourable Apex Court in the following manner:
"84.Just as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important."
Quantum of Punishment:
14. While considering the punishment for an offence proven, the Court has to necessarily to consider the public interest involved. The discretion of the Court cannot be exercised mechanically to its whims and fancies as such a discretion is a judicial one. Considering the ambit of judicial discretion, it has been observed by Benjamin Cardozo in the following manner:
"The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in the social life' . Wide enough in all conscience is the field of discretion that remains."
15. The observation of Benjamin Cardozo has been quoted with approval by Justice V.R. Krishna Iyer in GUDIKANTI NARASIMHULU vs. PUBLIC PROSECUTOR [(1978) 1 SCC 240]. The quantum of punishment and the principle of proportionality has been considered by the Honourable Apex Court in SANJAY CHANDRA vs. CENTRAL BUREAU OF INVESTIGATION [(2012) 1 SCC 26]. The following paragraphs are apposite:
"70.Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.
71.The principle of proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence.
As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.
72.This Court has laid down certain principles of penology from time to time. There is long line of cases on this aspect. However, reference to few of them shall suffice in the present case.
73.In the case of Krishnappa9, though this Court was concerned with the crime under Section 376 IPC but with reference to sentencing by courts, the Court made these weighty observations :
"18. ........ Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the respondent. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. ........."
74.In the case of Dalbir Singh10, this Court was concerned with a case where the accused was held guilty of the offence under Section 304A IPC. The Court made the following observations (at Pages 84-85 of the Report):
"1.When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic."
Then while dealing with Section 4 of the Probation of Offenders Act, 1958, it was observed that Section 4 could be resorted to when the court considers the circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on the probation of good conduct. For application of Section 4 of the Probation of Offenders Act, 1958 to convict under Section 304A IPC, the court stated in paragraph 11 of the Report (at Pg. 86) thus:-
"Courts must bear in mind that when any plea is made based on Section 4 of the PO Act for application to a convicted person under Section 304-A IPC, that road accidents have proliferated to an alarming extent and the toll is galloping day by day in India, and that no solution is in sight nor suggested by any quarter to bring them down.........."
Further, dealing with this aspect, in paragraph 13 (at page 87) of the Report, this Court stated :
"Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly, that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of the vehicle he cannot escape from a jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles."
75.In State of M.P. v. Saleem alias Chamaru & Anr. [2005 (5) SCC 554], while considering the case under Section 307 IPC this Court stated in paragraphs 6-10 (pages 558-559) of the Report as follows :
"6.Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. . . . . . . . . . .
7.After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of California (402 US 183) that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
8.The object should be to protect society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
9.Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.
10.The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal."
16. Useful reference can be had in the following decisions of the Honourable Apex Court which constantly deprecates the mechanical imposition of minimum sentencing, defeating the very object and rationale behind the enactments.
"MULLA AND ANOTHER vs. STATE OF UTTAR PRADESH [(2010) 3 SCC 508] AHMED HUSSEIN VALI MOHAMMED SAIYED AND ANOTHER vs. STATE OF GUJARAT [(2010) 3 MLJ (CRL) 646] JAMEEL vs. STATE OF UTTAR PRADESH [2010 (1) CTC 448]"
17. Therefore, this Court is of the view that the Courts below will have to keep the above said principles in mind while dealing with the cases involving drunken driving, whether there is a consequential accident or not.
18. Coming to the facts of the case, the records would reveal that the petitioner, on 26.01.2012 in a drunken state while driving a car, crossing the yellow line hit a Motor Cycle, Auto and another Motor Cycle which were proceeding in the opposite direction and dashed on the platform due to which one person died and others sustained injuries. A case was originally registered under Section 304(A), 337 IPC (4 counts) and 184 of the Motor Vehicles Act. Thereafter in pursuant to the Government Hospital accident registered entry indicating the drunkenness of the petitioner, the case has been altered into one under Sections 304(ii), 337 IPC (4 counts) and 184, 185, 411 r/w 177 of Motor Vehicles Act in Crime No.38/T3/2012. The petitioner was arrested on 30.01.2012 and remanded to judicial custody on the same day.
19. Taking note of the fact that the petitioner has been in judicial custody from 30.01.2012 onwards and his custodial interrogation is over, this Court is inclined to enlarge him on bail. It is also made clear that this Court has not expressed anything on the merits of the case and the trial court is directed to decide the case on its own merits uninfluenced by any of the observations made in this order. Accordingly, the petitioner is directed to be released on bail, subject to the following conditions:-
i) The petitioner shall execute a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only), with two sureties each for a like sum to the satisfaction of the learned XIV Metropolitan Magistrate, Egmore, Chennai.;
ii) The petitioner shall report before the respondent police daily at 10.30a.m. for a period of four weeks and thereafter shall be available for interrogation as and when required.
20. Before parting with the case, this Court is constrained to issue the following directions both to the investigating agencies and to the Magistrate Courts in the State of Tamil Nadu:-
i) The investigating agencies are hereby directed to register a case under Section 304(ii) IPC, if it is found out that the accused person against whom a complaint is given in pursuant to an accident resulting in a death is driving at the relevant point of time in a drunken state.
ii) The learned Judicial Magistrates of the State are directed to look into the facts and circumstances of each case and then decide the appropriate punishment for drunken driving without mechanically imposing the fine alone. While imposing the punishment they must keep in mind the object and the fundamental principle underlying the criminal jurisprudence, the provisions of the Motor Vehicles Act, 1988 and the ratio laid down in the decision rendered in SANJAY CHANDRA vs. CENTRAL BUREAU OF INVESTIGATION [(2012) 1 SCC 26].
21. Considering the overwhelming public importance involved, the registry is directed to communicate a copy of this order to the Home Secretary and the Director General of Police, representing the State of Tamil Nadu. The registry is also directed to circulate a copy of this order to all the Judicial Magistrates of the State of Tamil Nadu.
sri