Delhi District Court
State vs . Ashok Kumar on 26 September, 2013
IN THE COURT OF HARJYOT SINGH BHALLA :
M.M.07(SOUTH WEST), DWARKA, NEW DELHI
STATE VS. ASHOK KUMAR
FIR NO.: 54/12
P.S. : DWARKA NORTH
U.S. : 279/338 IPC
J U D G M E N T
a. Sl. No. of the case and : 02405R0219682011
date of its institution 25.09.2012
b. Name of the complainant : Sh. Virender
c. Date of commission of offence : 11.03.2012
d. Name of the accused, : Ashok Kumar Singh
Parentage and residence S/o Sh. Deena Nath Singh
R/o RZD108, Mahavir Vihar
Sector 1, Dwarka.
e. Offence complained of :U/s 279/338 IPC
f. Plea of accused :Pleaded not guilty
g. Date when judgment reserved :Oral
h. Date when judgment pronounced :26.09.2013
i. Final order :Discharged for the offence
under Section 279 IPC and
Section 338 IPC ompounded
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. It is the case of the prosecution that on 11.03.2012 at about 08:00 pm near DPS School, Sector 3, Dwarka, New Delhi accused was driving a vehicle Tata Safari bearing registration no. DL9CZ2772 in rash and negligent manner and at a high speed so as to endanger human life and State Vs. Ashok Kumar Singh Page no.1/5 FIR no. 54/12 personal safety of others and while driving the abovestated vehicle in abovestated manner, and caused grevious injuries to one Virender and thereby accused committed offences punishable U/s 279/338 IPC.
2. Charge sheet in the present case was filed under Section 279/338 IPC. Matter was compromised between the injured and the accused as agreed before the Mediation Cell. Statement of the parties were recorded and offence under Section 338 IPC were compounded with the permission of the court.
3. It is pertinent to note that the FIR was registered on DD entry which gives no description of how accident occurred and whether the vehicle was being driven rashly and negligently. There is no contemporaneous account of the accident in the form of Asal Tehrir or a complaint by injured or eye witness recorded immediately after the accident. Even otherwise, the injured has compounded the major offence disclosed in the charge sheet. In this background the fate of trial vizaviz Section 279 IPC is to be considered. An issue has been raised by the Ld. Counsel for the accused that this is a fit case for exercising power under Section 258 of Cr.P.C. for stopping the proceedings as nothing fruitful would be achieved. There is possibility of witnesses not deposing against the accused or turning hostile. I agree with the submissions of the Ld. Counsel. The FIR is devoid of any description of the manner of accident. The exact manner in which the vehicle was being driven by the accused is not mentioned. Even otherwise, Sections 279 and 338 of IPC punish rash State Vs. Ashok Kumar Singh Page no.2/5 FIR no. 54/12 and negligent act. The only difference is that in Section 279 IPC there is rashness and negligence which may result in injury and Section 338 IPC is invoked when such an act actually results in an injury being caused. Section 338 IPC has been made compoundable but Section 279 IPC is not compoundable. Perhaps, one reason is that, as far as Section 337/ 338 IPC are concerned, there is a determinable victim i.e. injured whereas in offence under Section 279 IPC, there is no determinable injured who can compound the offence. In a recent decision entitled as Adwait Surendra Aatre Vs. The State of Maharashtra & Ors., in Criminal Application no.124 of 2011, whereas Ld. Single Judge of Hon'ble High Court of Bombay held and I quote :
"...Therefore, there is an apprehension in the mind of both, the applicant / accused and complainant, that even by approaching the trial court, they may not be allowed compounding the entire proceeding because of inclusion of Section 279 IPC which is stated to be noncompoundable...
7. After minute reading of both these sections, it is seen that the alleged act of rash and neglient driving, endangering human life, is required to be proved as necessary ingredient to constitute offence under Section 279 IPC and by allegedly doing any act rashly or negligently as to endagering the human life are also the same ingredient to constitute the offence under Section 338 IPC. Therefore, such ingredients which are common, cannot be separately dealt with. The requirement of offence under Section 338 IPC is all that is covered in Section 279 of IPC. As specifically mentioned in the Code, when the offence under Section 338 IPC is compoundable, there cannot be any impediment or bar to hold that the alleged offence under Section State Vs. Ashok Kumar Singh Page no.3/5 FIR no. 54/12 279 of IPC read with Section 338 IPC could also be compounded. It is not a different act complained of to constitute a separate offence but are the essential ingredients of section 338 IPC in the present case. In short, the offence under Section 338 IPC is compoundable with permission of the Court, which, amounts to acquittal. After such compounding with the consent of 5 apl 12411.
... the aggrieved party injured complainant, the accused cannot be prosecuted or tried for the same act which are complained of by different title or ead under Section 279 of IPC. Though it may not be a second trial, but hte accused, who is once acquitted from the charge under Section 338 IPC upon compounding of the charge based on thesame evidence, would be vexed, if he is directed to under go further trial under Section 279 for lesser punishment. Thus, by the present application, the applicant has made out a case for compoinding of offence...
...I am satisfied that once the offence under Section 338 IP is compounded, nothing survives for trying the offence under Section 279 IPC. The FIR or Charge sheet for additional Section 279 IPC would be meaningless when the cognizance is taken under Section 338 of IPC. The proceedings for the offence under Section 279 IPC, therefore deserves to be quashed and set aside." (Emphasis supplied)
4. Therefore, the Ld. Single Judge was of the view that once injury was received by rash and negligent driving, only Section 338 IPC ought to be invoked i.e. the graver of the two offences and Section 279 IPC is not made out, and therefore, the court quashed proceedings under Section 279 IPC and directed the parties to appear before Ld. Magistrate for compounding the offence under Section 279 IPC.
State Vs. Ashok Kumar Singh Page no.4/5 FIR no. 54/12
5. Ld. APP for State has submitted that the judgment is not laying down correct law and trial for offence under Section 279 IPC must be completed and power under Section 258 Cr.P.C., ought not to be exercised in the present case.
6. The court was also of the view that once offence under Section 338 IPC is compounded continuing the trial for the offence under Section 279 IPC shall be vexing the accused twice. Although, I am not fully in agreement with the view that Section 279 IPC looses its significance once Section 337/338 IPC are invoked by the police and that Section 337/338 IPC is not independent but only graver form of the offence under Section 279 IPC. Keeping in view the circumstances of the case, the decision of Bombay High Court and the futility of purpose in proceeding with the trial of minor offence when the major offence has already been compounded by the victim, I am of the view that present case is a fit case for exercising power under Section 258 Cr.P.C. I direct that the proceeding in the present case are stopped which shall operate as discharge of the accused as no witness as have been examined.
Announced & dictated in
the open Court on 26.09.2013 (Harjyot Singh Bhalla)
Metropolitan Magistrate
Dwarka Courts: New Delhi
State Vs. Ashok Kumar Singh Page no.5/5
FIR no. 54/12