Andhra Pradesh High Court - Amravati
Sri.Jangam Anand Raju vs The State Of Andhra Pradesh on 31 July, 2024
APHC010117282024
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
WEDNESDAY ,THE THIRTY FIRST DAY OF JULY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
CRIMINAL REVISION CASE NO: 252/2024
Between:
Sri.jangam Anand Raju ...PETITIONER
AND
The State Of Andhra Pradesh ...RESPONDENT
Counsel for the Petitioner:
1. G RONALD RAJU
Counsel for the Respondent:
1. PUBLIC PROSECUTOR (AP)
The Court made the following:
2
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CRIMINAL REVISION CASE No.252 of 2024
ORDER:
1. The sole accused in S.C.No.146 of 2018 preferred this criminal revision under Sections 397 and 401 of the CrPC impugning the order dated 01.12.2023 of learned Judge, Family Court - cum - VII Additional Sessions Judge, West Godavari, Eluru in Crl.M.P.No.555 of 2018 in S.C.No.146 of 2018. By the impugned order, the prayer made by the revision petitioner to discharge him was dismissed by the learned Additional Sessions Judge.
2. Respondent herein is the State.
3. Kumari S.Amulya, the learned counsel representing Sri G.Ronald Raju for petitioner and Kumari Disha Chowdary, the learned Assistant Public Prosecutor for respondent/State submitted arguments.
4. The revision petitioner is owner cum driver of Scorpio car bearing registration No. WB 40 AD 1418. It is alleged that on 24.12.2017 at about 8:30 AM on NH16 of Kurellagudem Village of West Godavari District, the revision petitioner/accused drove his vehicle at high speed, rashly or negligently and with a careless attitude and in a jig jag manner and dashed a truck auto bearing registration No. AP 37 TB 3171 proceeding in the same direction 3 and then dashed a motor cycle which was yet to be registered and then hit another motor cycle bearing registration No.AP 37 AF 5896 and then hit the road divider and stopped. In this incident, three persons died and several persons sustained grievous and simple injuries.
5. After due investigation in this incident of Crime No.188 of 2017 of Bhimadole Police Station, with a list of LW.1 to 47, the Inspector of Police, Bhimadole circle filed charge sheet before the learned Judicial Magistrate of the First Class, Bhimadole for the offences under sections 304(ii), 338 and 337 IPC. It seems the learned Magistrate found the case exclusively triable by the court of sessions and therefore committed the same and that reached finally to learned VII Additional Sessions Judge, West Godavari, Eluru. The accused/revision petitioner made his appearance and then moved Crl.M.P.No.555 of 2018 seeking discharge. State filed its counter. After due hearing, the learned Additional Sessions Judge, West Godavari, Eluru found no merit in the plea of discharge and dismissed the petition. That forced the revision petitioner to file the present revision.
6. Two contentions are raised on behalf of the revision petitioner.
1. That the material on record does not support any accusation against the revision petitioner and there is no sufficient ground for proceeding against him and the learned Additional Sessions Court failed to notice it.
42. That the material on record may indicate Sections 337 and 338 IPC and does not indicate any facts attracting Section 304(ii) IPC and the learned Additional Sessions Judge failed to appreciate the facts and law.
7. Thus, the above points fall for consideration here: -
Contention 1:-
In support of the first contention raised, the learned counsel for revision petitioner contends that truck auto bearing registration No.AP 37 TB 3171 is the culprit and the driver and owner of it were supposed to be charged but the police let them off. It is stated that against the rules, the said vehicle carried 25 passengers and it is the said auto truck which came in the wrong direction and dashed the divider and then dashed the motor cycles and this revision petitioner who escaped from all these swerved his Scorpio and got stopped at the road divider and therefore he is innocent. It is further stated that the said truck auto was not road worthy. Its driver had no licence and no insurance. Similar is the case with the motor cycle. However, ignoring all that, this revision petitioner has become accused of all these offences though in fact he is a victim of the incident.
8. The above contentions were raised before the learned trial court. After considering them, the learned trial court stated the principle of law by referring to various precedent and the statute and held that it was obliged to consider only the material produced by the prosecution and decide whether there was 5 sufficient ground to proceed or not and on such consideration of the material it found there was sufficient ground to proceed further. It further stated that the contention raised by the accused/revision petitioner touch upon facts amounting to defence which could only be considered at the trial. Referring to the ratio in State of Bihar V. Ramesh Singh1, the learned Additional Sessions Judge held that it could discharge the accused only if the proposed evidence of prosecution even if remain unrebutted, still it should show that the accused cannot be said to have committed the offence but not otherwise.
9. In the present revision, the learned counsel for revision petitioner failed to suggest to the court as to any illegality or irregularity or impropriety on part of the learned Additional Sessions Judge in taking the said view of the law and facts. In the light of the principles of law, this court is in full agreement with the said part of the order of the learned Additional Sessions Judge. Therefore, this point is answered against the revision petitioner.
Contention 2: -
10. This contention raises the question whether the facts alleged by the prosecution would attract section 304(ii) IPC or would attract only sections 337 and 338 IPC. According to the learned Additional Sessions Judge the facts on record would indicate sections 304(ii) IPC and for that it referred to Alister 1 (1977) 4 SCC 39 6 Anthony Pereira V. State of Maharashtra2. Specific reference was made in the impugned order to paragraph Nos.41 and 42. For benefit, they are extracted below: -
"41.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 IPC-the cases which fall within the 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 304-A 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.
42. 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. There is no incongruity, if simultaneously 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."2
(2012) 2 SCC 648 7
11. On considering the rival submissions and the material on record and the law pronounced by the Hon'ble Supreme Court of India in the above cited ruling, this court is of the considered view that the facts at hand do not indicate a charge to be framed for the offence under section 304(ii) IPC and it would be sufficient if the case is tried for the offences under section 337, 338 and 304- A IPC. This view is taken for the following reasons.
In the above referred Alister Anthony Pareira's case (mentioned supra2), the facts before their Lordships were that the driver of the offending car, in a drunken condition drove it at 04.00 AM at high speed, rashly or negligently and gone out of the road and went on to a pavement and ran over several labourers who were asleep on the pavement leading to their death. In the light of those facts which included drunken condition of the accused, their Lordships found that that was a case falling within the ambit of section 304(ii) IPC while explaining the law in the manner that is referred in the earlier paragraphs. Coming to the case at hand, one would notice that the investigation officer had recorded his opinion in the last paragraph of the charge sheet which is extracted here: -
Thus, the accused who well aware of that the driving of vehicle in high speed without care and caution is endanger to the lives of human, drove the crime vehicle in this case in rash and negligent manner in careless attitude and caused death of 3 human lives and also caused injuries to the injured persons. Therefore, 8 the accused is liable to be prosecuted U/s.304(ii), 338, 337 IPC.
Hence, the Charge."
12. The statements of witnesses recorded under section 161 CrPC show that they found the offending car being driven by this revision petitioner at high speed and he was driving it in a jig jag manner giving an impression that a man under sleep was driving it. Investigation officer has not recorded his opinion whether from the evidence collected, he found the accused was asleep and was still driving the vehicle. It is not the statement of any of the witnesses that they saw him sleeping. What all the statements indicate is that the vehicle was coming in a jig jag way and a parallel is drawn by them that it looked as if it was driven by someone who was asleep. If it is a case that the accused was asleep, in such a case, he was expected to stop the vehicle aside and take sleep and get up and drive once again. If he did not do that and proceeds further while sleeping it may be said that he was possessed of knowledge of a reasonable mind that driving while asleep is likely to endanger the lives and that would attract Section 304 (ii) IPC. Since the material on record and the investigative findings do not indicate it and the fact that the incident occurred not in the wee hours of the day but at 8.30 AM while the sun was shining well, the allegations against the accused/ revision petitioner are that he was driving in a jig jag manner. Driving a vehicle at a high speed in a jig jag manner and leading to the incident which resulted in deaths and injuries could be an act of negligence or rashness covered by Sections 304-A 9 ,337 and 338 IPC. Learned trial court appropriately applied the principles of law but failed to show adequate attention to the facts placed before it so as to decide whether those facts would make it to believe that a charge under section 304 (ii) IPC was required or not. It is in such circumstances, this court is unable to agree with the observations of the learned trial court so far as section 304 (ii) IPC for framing charges. Therefore, there is merit in the contention of the revision petitioner to this extent. Therefore, this point is answered in favour of the revision petitioner.
13. The effect of the above discussion is that the material on record shows sufficient ground to proceed against the revision petitioner/accused for the offences under sections 304-A, 337 and 338 IPC. The material on record do not attract Section 304
(ii) IPC. The offences under sections 304-A, 337 and 338 IPC are not the offences that are exclusively triable by a sessions court and they are to be tried by the Judicial Magistrate of the First Class. In such an event, the solution lies in what is prescribed by the legislature in Section 228 CrPC which is extracted here.
Framing of charge.--
(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which--
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, 10 as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
14. In the result, this criminal revision case is disposed of in the manner indicated above.
As a sequel, miscellaneous applications, pending, if any, shall stand closed.
________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 31.07.2024 Dvs 11 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CRIMINAL REVISION CASE No.252 of 2024 Date: 31.07.2024 Dvs