Karnataka High Court
Ranjith Nandakumar Menan vs The State By on 5 July, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 311 of 2021
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION No.311 OF 2021
BETWEEN:
1. RANJITH NANDAKUMAR MENAN
S/O LATE V.NANDAKUMAR MENAN
AGED ABOUT 46 YEARS,
R/AT SRI AYURVEDA TRUST, 11 K.M.
KANAKAPURA MAIN ROAD
UDAYAPURA, KENGERI HOBLI,
BANGALORE SOUTH TALUK
BANGALORE-560060
...PETITIONER
(BY SRI.SRIRANGA.S., SENIOR COUNSEL FOR
SRI.RAVI KUMAR.B., ADVOCATE)
AND:
1. THE STATE BY KAGGALIPURA POLICE STATION
BANGALORE RURAL DISTRICT
BANGALORE-560001.
Digitally 2. ESHWAR
signed by
MALATESH S/O LINGAIAH
KC AGED ABOUT 52 YEARS
Location: R/AT LAKSHMI PURA VILLAGE
HIGH BENGALURU.
COURT OF
KARNATAKA 3. SMT.LAKSHMI
W/O LATE MUDDAHANUMAIAH
MAJOR, R/AT LAKSHMI PURA VILLAGE
BENGALURU.
...RESPONDENTS
(BY SRI.CHANNAPPA ERAPPA., HCGP FOR RESPONDENT/STATE
SRI.NAGARAJ.P., ADVOCATE FOR R2 & R3)
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CRL.RP No. 311 of 2021
THIS PETITION IS FILED UUNDER SECTION 397 R/W 401
CR.P.C, PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE
DATED 12.12.2018 IN C.C.NO.8077/2015 PASSED BY THE II ACJM,
BANGALORE RURAL DISTRICT, BANGALORE FOR THE OFFENCES
P/U/S 279, 304A OF IPC AND THEREBY CONFIRMING THE JUDGMENT
OF CONVICTION AND SENTENCE IN CRL.A.NO.9/2019 DATED
11.12.2020 PASSED BY THE VI ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE AND
ACQUIT THE PETITIONER.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel appearing for the parties including the respondent Nos.2 and 3.
2. At the outset, in the present revision petition, accused has placed a submission on record that in the event of this Court upholding conviction of the accused for the offences punishable under Sections 279 and 304A of IPC, Court may consider setting aside the imprisonment for the offence punishable under Section 304A of IPC in view of the fact that accused has taken necessary steps soon after the unavoidable incident in shifting the injured to the hospital and he stood by the bed side of the injured all along and met the entire medical expenses.
3. Said submission is not controverted by respondent Nos.2 and 3.
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4. Learned High Court Government Pleader however opposed the said submission in considering setting aside imprisonment period, as it may send a wrong message to the society and opposed to the principles of law enunciated in the judgment of the Hon'ble Apex Court in the case of STATE OF PUNJAB VS. SAURABH BAKSHI reported in (2015) 5 SCC
182.
5. In the light of the rival contention of the parties, this Court perused the material on record meticulously.
6. To appreciate the rival contentions of the parties, few admitted facts in the case are culled out as under:
Unfortunate incident of road traffic accident occurred on 05.06.2015 at about 08.30 p.m., within the limits of Kaggalipura police station, Bengaluru South Taluk on NH-
209.
Accused being the driver of Swift car bearing No.KA-05- MP-9208 is not in dispute.
Soon after the accident, injured person by name Muddahanumaiah sustained injuries and accused took immediate steps in shifting him to the hospital by securing the ambulance. Accused stood all along with the injured -4- NC: 2024:KHC:25579 CRL.RP No. 311 of 2021 till 06.06.2015 at 11.15 p.m., that is when the injured breathed his last.
Entire medical expenses of the injured was cleared by the accused.
No doubt, some explanations were offered on behalf of the accused with regard to the conduct of the injured in suddenly crossing the road, but the same was negated by both the Courts on factual aspects.
7. In view of the material evidence placed on record, conviction of the accused for the offence punishable under Sections 279, 304A of IPC is thus justified.
8. Having noted the relevant aspects of the matter as aforesaid, it is now duty of this Court to consider the alternate submission canvassed on behalf of the revision petitioner by Sri.Sriranga, learned senior counsel representing Sri.Ravi Kumar.B, learned counsel for the revision petitioner.
9. Learned senior counsel contended that having regard to the nature of offence carved out Under Section 304A of IPC, the legislatures themselves thought that the offence is not so grave enough to impose a stringent punishment in every case, which can be inferred from the language and wordings. -5-
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10. To appreciate the said submission of the learned senior counsel, it is just and necessary for this Court to cull out Sections 279 and 304A of IPC which reads as under:
"279. Rash driving or riding on a public way.-- Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
304A. Causing death by negligence. - Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
11. On careful consideration of the above provisions, it is crystal clear that the wordings used 'may extend to', or 'fine' would allow a Court while passing the sentence in respect of the offence under Section 304A of IPC, a discretion that in a given case, Court may only impose fine.
12. It is also to be noted that the legislature in its wisdom did not use the word 'and' which is a conjunction but has used the -6- NC: 2024:KHC:25579 CRL.RP No. 311 of 2021 word 'or' which is a disjunction. In other words, whenever a particular case demands the use of discretion by the Court in punishing an accused for the offence punishable under Section 304A of IPC, Court does have the power to impose the fine alone having regard to the disjunctive word 'or' being used in the provision.
13. Discretionary power vested in a Court can be exercised depending upon the facts and circumstances of that particular case. While exercising the discretionary power, it must be sound and logical.
14. Often, a question arises as to what is the true meaning of the word 'discretion' and how the same has got application in the field of law.
15. The word 'discretion' in Black's Law Dictionary, is defined as under:
"Discretion:
Wise conduct and management;
Cautious discernment;
Prudence.
Individual judgment;
The power of free decision-making"
"Judicial Discretion:-7-
NC: 2024:KHC:25579 CRL.RP No. 311 of 2021 The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court's power to act or not act when a litigant is not entitled to demand the act as a matter of right.-Also termed legal discretion."
16. Law Lexicon defines the word 'discretion' as under:
Discretion:
"DISCRETION. When any thing is left to any person judge or magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (Tomlin's Law Dic) In its ordinary meaning, the word signifies unrestrained exercise of choice or will, freedom to act according to one's own judgment, unrestrained exercise of will; the liberty of power of acting without other control than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore whoever hath power to act at discretion, is bound by the rule of reason and law. (2 Inst. 56, 298. Tomlin's Law Dic.) DISCRETION. In general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution, nice -8- NC: 2024:KHC:25579 CRL.RP No. 311 of 2021 discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment: a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colorable glosses and pretences, and not to do according to the will and private affections of persons."
17. Time and again, the word 'discretion' or sometimes 'judicial discretion' is used while delivering the orders/ judgments in judicial proceedings. But, what exactly the 'discretion' means depends on facts and circumstances of that case especially when judicial discretion is pressed into service in a given case.
18. Discretion as could be seen from the definitions above, is the power or right to make official decisions using reason and judgment to choose from among the acceptable alternatives.
19. Having said thus, Judicial Discretion is a very broad concept. It is so because, different decisions are rendered by Judges almost in similar circumstances. Thus, exercise of discretionary power conferred on a judge can be termed as omnipotent in a given judicial proceedings. -9-
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20. However, said omnipotent power in the form of discretion should be exercised cautiously. While exercising such discretionary power in a given set of circumstances, there would be some degree of discretion which is unavoidable either for want of necessary legislative sanction or any precedential decision available on the subject.
21. It is needless to emphasize that judicial proceedings are required to be adjudicated depending upon facts and circumstances of that case. More so, in criminal cases inasmuch as, there cannot be two identical criminal cases. Therefore, law of precedents takes the back seat while adjudicating a criminal case.
22. It must be borne in mind that while enacting a piece of legislation, law makers cannot foresee every eventuality which may be subject matter of a given judicial proceedings. As such, it is highly difficult to define the phrase 'judicial discretion'.
23. However, one can safely derive a definition of the word 'judicial discretion' based on a decision taken by a Judge in a
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NC: 2024:KHC:25579 CRL.RP No. 311 of 2021 judicial proceedings, when several different, but equally valid, courses of action is available and a particular course of action has been preferred by that Judge exercising his discretion.
24. Having said thus, one can often see phrases like 'as the Courts deem fit', 'as the Court deems proper', 'as the Court thinks reasonable', 'as the Court otherwise directs' and similar such expressions in the decisions rendered in various judicial pronouncements. These expressions eventually indicate the unbridled freedom which vests in a Judge to decide a case where there is no proper legislative control. Needless to emphasize that the Judge so deciding a case exercising such unbridled freedom would be doing so, subject to the subjective satisfaction of that particular Judge in a given set of circumstances.
25. In the backdrop of the above legal principles and factual aspects, when the material on record is analysed, in a matter of this nature the conduct of the accused post accident assumes a greater importance in adjudging the particular case.
26. In the case on hand, admittedly the accused did not run away from the spot, nor tried to justify the action. But, he tried
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NC: 2024:KHC:25579 CRL.RP No. 311 of 2021 to save a life by immediately securing the ambulance and shifted the injured to the hospital and he was present all along with the injured till he breathed last.
27. He volunteered to meet entire medical expenses and has cleared medical expenses till the last penny.
28. Apart from meeting medical expenses, the complainant and the wife of the deceased present before the Court also submits that they have received the adequate compensation from the accused apart from receiving sufficient compensation in the Motor Accident Claims Tribunal case.
29. Taking note of these aspects of the matter and the complainant and the victim having voluntarily appeared before the Court and making a categorical statement that they are not interested in sending the accused to the prison for the offence under punishable Section 304A of IPC, this Court is of the considered opinion that the sentence ordered by the Trial Magistrate and confirmed by the First Appellate Court needs interference in this revision having regard to the peculiar facts and circumstances of the case.
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30. No doubt, the Hon'ble Supreme Court in the case of SAURABH BAKSHI supra, in paragraph Nos.14 and 15 has held as under:
"14. In this context, we may refer with profit to the decision in Balwinder Singh [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial Magistrate, First Class, for the offences punishable under Sections 304-A, 337, 279 IPC by reducing the sentence of imprisonment already undergone, that is, 15 days. The Court referred to the decision in Dalbir Singh v. State of Haryana [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : 2004 SCC (Cri) 1208] and reproduced two paragraphs which we feel extremely necessary for reproduction: (Balwinder Singh case [State of Punjab v. Balwinder Singh, (2012) 2 SCC 182: (2012) 1 SCC (Cri) 706], SCC pp. 186-87, para 12) "12. ... '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.
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13. 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 Probation of Offenders 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.' (Dalbir Singh case [Dalbir Singh v. State of Haryana, (2000) 5 SCC 82: 2004 SCC (Cri) 1208], SCC pp. 84-85 & 87, paras 1 &
13)"
15. In B. Nagabhushanam v. State of Karnataka [(2008) 5 SCC 730: (2008) 3 SCC (Cri) 61] the appellant was directed to undergo simple imprisonment for six months for the offence punishable under Section 304-A IPC. The two-Judge Bench referred to Dalbir Singh [Dalbir Singh v. State of Haryana, (2000)
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NC: 2024:KHC:25579 CRL.RP No. 311 of 2021 5 SCC 82 : 2004 SCC (Cri) 1208] and declined to interfere with the quantum of sentence. Be it stated, in the said case a passage from Rattan Singh v. State of Punjab [(1979) 4 SCC 719: 1980 SCC (Cri) 17] was quoted : (B. Nagabhushanam case [(2008) 5 SCC 730 :
(2008) 3 SCC (Cri) 61], SCC p. 735, para 16) "16. ... '5. Nevertheless, sentencing must have a policy of correction. This driver, if he has to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. Punishment in this area must, therefore, be accompanied by these components. The State, we hope, will attach a course for better driving together with a livelier sense of responsibility, when the punishment is for driving offences. Maybe, the State may consider, in case of men with poor families, occasional parole and reformatory courses on appropriate application, without the rigour of the old rules which are subject to Government discretion.' (Rattan Singh case [(1979) 4 SCC 719 :
1980 SCC (Cri) 17] , SCC pp. 720-21, para 5)"".
31. These legal principles are relied upon by the learned High Court Government Pleader for opposing the modification of the sentence of imprisonment ordered by Trial Magistrate and confirmed by the First Appellate Court.
32. On careful consideration of the principles of law stated above, it is crystal clear that the Hon'ble Apex Court was dealing with a case where conduct of the accused post accident is also to be taken note of, is spelled out categorically.
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33. On considering the factual aspects in the case on hand, accused having shifted the injured to the hospital and meeting medical expenses would go to show that he never intended to abandon the injured on the road and run away from the spot.
34. Therefore, a case is made out by the accused to alter the sentence of imprisonment by directing the accused to undergo simple imprisonment for the day till the rising of the Court and pay additional fine of Rs.25,000/- towards the State.
35. No doubt, in a criminal offence, the offence is primarily against the State and consequences of such offence, would result in either loss of property or bodily injury to the victim/s. As such, in every case mere compromise or settlement arrived between parties would not ipso facto allow the Court to exercise the discretionary power in setting aside the imprisonment. But, in the case on hand, since the complainant and victim are satisfied with the amount of compensation received and the timely help rendered by the accused himself soon after the incident in securing the ambulance, meeting the medical expenses would showing his bonafides, the period of
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NC: 2024:KHC:25579 CRL.RP No. 311 of 2021 imprisonment ordered by the Trial Magistrate and confirmed by the First Appellate Court needs to be modified.
36. Having said thus, since the offence is primarily against the State, suitable fine amount can also be imposed by this Court towards the defraying expenses of the State while modifying the sentence.
37. Accordingly, following order is passed:
ORDER
i) Revision petition is allowed in part.
ii) While maintaining the conviction of the accused for the offence punishable under Sections 279 and 304A of IPC, accused is directed to undergo simple imprisonment for the day till the rising of the Court in modification of the sentence ordered by the Trial Magistrate and confirmed by the First Appellate Court.
iii) Further, accused is directed to pay a sum of Rs.25,000/- fine amount in addition to the fine amount already imposed by the Trial
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NC: 2024:KHC:25579 CRL.RP No. 311 of 2021 Magistrate, confirmed by the First Appellate Court on or before 31.08.2024.
iv) Office is directed to return the Trial Court records with copy of this order forthwith.
Sd/-
(V.SRISHANANDA) JUDGE NC List No.: 1 Sl No.: 41