Delhi District Court
State vs . Shahid Khan on 3 January, 2015
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (East),
KARKARDOOMA COURTS, DELHI.
FIR No. : 114/2012
PS : New Ashok Nagar
Offence complained of: 279/338 IPC
Date of commission of offence: 06.04.2012
Unique Case ID No. : 02402R0259272012
STATE Vs. Shahid Khan
S/o Sh. Vahid Khan
R/o H. No. 41, Khalapur, District Muzafar Nagar
Uttar Pradesh
Also at : H. No. D83, New Ashok Nagar, Delhi
.............. Accused
Dheeraj Kumar, S/o Sh. Beer Singh,
R/o B107, Sunar Wali Gali, Kondli, Delhi
............. Complainant
Date of Institution : 10.09.2012
Plea of accused : Pleaded not guilty.
Date of reserving judgment/ order : 22.11.2014
Date of pronouncement : 03.01.2015
Final Order : Acquitted
FIR No. 114/2012 State Vs. Shahid Khan Page No. 1 / 13
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
ALLEGATIONS
The story of the prosecution is that on 06.04.2012 at about 1:30 PM
in front of A6, Mayur Vihar, PhaseIII, Delhi, falling within the jurisdiction of
Police Station New Ashok Nagar, accused Shahid Khan was driving a car
bearing No. DL9CG6426 in a rash and negligent manner, because of which he
hit complainant Dhiraj Kumar who was riding motorcycle bearing No. DL5SAA
8961 (Discover) which resulted into grievous injuries to complainant. Thus,
accused Shahid Khan is alleged to have committed offence punishable under
section 279/338 IPC.
FIR
On the basis of the said allegations and on the complaint of
complainant Dheeraj Kumar, an FIR bearing number 114/2012 under section
279/338 IPC was lodged at Police Station New Ashok Nagar on 06.04.2012.
NOTICE
After investigation, chargesheet under section 173 Cr. P.C was
filed on 10.09.2012.
The accused appeared before the court to face trial and he was
supplied the copy of charge sheet as per section 207 Cr. P.C.
On the basis of the chargesheet, a notice for the offence
punishable under section 279/338 IPC was framed against accused Shahid
Khan and read out to the said accused person, to which the accused pleaded
FIR No. 114/2012 State Vs. Shahid Khan Page No. 2 / 13
not guilty and claimed trial on 28.01.2013.
JUDICIAL RESOLUTION
To bring home the guilt of rash and negligent driving to the
accused, three things need to be proved by the prosecution that to beyond any
reasonable doubt. The three essential ingredients are as follows:
(1)That the accident actually took place.
(2)That the accident took place due to rash and negligent driving.
(3)That the accused was the person who was driving the vehicle at
the relevant time.
These words i.e "rash" and "negligent", have not been defined in
the Indian Penal Code. However as per Blacks Law Dictionary, Eighth Edition
the word 'Negligent' is characterized by a person's failure to exercise the
degree of care that someone of ordinary prudence would have exercised in the
same circumstances.
Quoting from the article "Negligence, Mens Rea and Criminal
Responsibility" by H.L.A.Hart in Punishment and Responsibility the dictionary
further goes on to explain the difference between an act done inadvertently and
an act done negligently.
"[A] careful consideration is needed of the difference between the
meaning of the expression like 'inadvertently' and 'while his mind
was a blank' on the one hand, and 'negligently' on the other hand.
In ordinary English, and also in Lawyer's English, when harm has
resulted from someone's negligence, if we say of that person that
he has acted negligently we are not thereby merely describing the
frame of mind in which he acted. 'He negligently broke a saucer' is
not the same kind of expression as 'he inadvertently broke a
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saucer'. The point of adverb 'inadvertently' is merely to inform us of
the agent's psychological state, whereas if we say 'He broke it
negligently' we are not merely adding to this an element of blame
or reproach, but something quite specific, viz. we are referring to
the fact that the agent failed to comply with a standard of conduct
with which any ordinary reasonable man could and would have
complied: a standard requiring him to take precautions against
harm. The word 'negligently', both in legal and non legal contexts,
makes an essential reference to an omission to do what is thus
required: it is not a flatly descriptive psychological expression like
'his mind was a blank'."
The Oxford Advanced Learner's Dictionary, Sixth Edition defines
'Rash' as doing something that may not be sensible without first thinking about
the possible results.
Elaborating further, in State of H.P. v. Piar Chand, Cr. Appeal No.
109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, while dealing
with the meaning of the expression " rashness " and " negligence " held as
follows :
"18. Criminal rashness is doing a dangerous or wanton act
with the knowledge that it is so and may cause injury but
without intention to cause injury and without knowledge that
injury would probably be caused. Therefore, to incur criminal
liability, the act must be done with rashness or indifference
as to the consequences. Criminal negligence is the gross
and culpable neglect or failure to exercise reasonable care
and proper precaution imperative to be adopted by a person
to avoid causing of injury to the public or a person or a
individual."
The court would also like to refer to a very recent judgment of the
FIR No. 114/2012 State Vs. Shahid Khan Page No. 4 / 13
Honorable Supreme Court of India elaborating further the requirements of
section 304A of IPC. Quoting from Rathnashalvan v. State of Karnataka, (SC)
2005 A.I.R. (SC) 1064.
"Section 304A applies to cases where there is no intention to
cause death and no knowledge that the act done in all probability
will cause death. The provision is directed at offences outside the
range of Sections 299 and 300 IPC. The provision applies only to
such acts which are rash and negligent and are directly cause of
death of another person. Negligence and rashness are essential
elements under Section 304A. Culpable negligence lies in the
failure to exercise reasonable and proper care and the extent of its
reasonableness will always depend upon the circumstances of
each case. Rashness means doing an act with the consciousness
of a risk that evil consequences will follow but with the hope that it
will not. Negligence is a breach of duty imposed by law. In criminal
cases, the amount and degree of negligence are determining
factors. A question whether the accused's conduct amounted to
culpable rashness or negligence depends directly on the question
as to what is the amount of care and circumspection which a
prudent and reasonable man would consider it to be sufficient
considering all the circumstances of the case. Criminal rashness
means hazarding a dangerous or wanton act with the knowledge
that it is dangerous or wanton and the further knowledge that it may
cause injury but done without any intention to cause injury or
knowledge that it would probably be caused.
As noted above, " Rashness " consists in hazarding a dangerous or
wanton act with the knowledge that it is so, and that it may cause
injury. The criminality lies in such a case in running the risk of doing
such an act with recklessness or indifference as to the
consequences. Criminal negligence on the other hand, is the gross
and culpable neglect or failure to exercise that reasonable and
proper care and precaution to guard against injury either to the
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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.
8. The distinction has been very aptly pointed out by Holloway, J. in
these words :
"Culpable rashness is acting with the
consciousness that the mischievous and illegal
consequences may follow, but with the hope that
they will not, and often with the belief that the
actor has taken sufficient precautions to prevent
their happening. The imputability arises from
acting despite the consciousness. Culpable
negligence is acting without the consciousness
that the illegal and mischievous effect will follow,
but in circumstances which show that the actor
has not exercised the caution incumbent upon
him and that if he had, he would have had the
consciousness. The imputability arises from the
negligence of the civic duty of circumspection."
(See In Re : Nidamorti Nagabhusanam 7 Mad. HCR
119)".
In order to prove the above said allegations, the prosecution has
cited 13 witnesses, of which the complainant/injured is Dheeraj Kumar, who
has been cited as PW1 in the list of witnesses. Another eye witness Ganga
Dhar, who has been cited as PW3 in the list of witnesses
Except complainant/injured Dheeraj Kumar and eye witness
Ganga Dhar, all the remaining 11 witnesses cited by prosecution are formal
witnesses and sufficient only to prove that injured Dheeraj Kumar received
grievous injuries in an incident and that an FIR with respect to the said incident
FIR No. 114/2012 State Vs. Shahid Khan Page No. 6 / 13
was lodged on the same day at PS New Ashok Nagar vide FIR bearing No.
114/2012.
PW1 complainant/injured Dheeraj Kumar deposed that on
06.04.2012, he was returning from his office at Sector9 NOIDA on motorcycle bearing no. DLAAA 8961 to his house. When PW1 reached at pocketVI, Shani Bazar Road at about 1.30 pm, one four wheeler vehicle came from the flats of New Kondali at very high speed and hit against his motorcycle, due to which he fell down and sustained injuries. After sometime, PW1 called his father, who took him to LBS hospital. PW1 further deposed that the driver of the offending vehicle was at fault because he was driving the vehicle in a rash and negligently. The driver of the car took left turn on the main road at a very high speed without taking care of the vehicles travelling on the main road. The driver hit his vehicle against two rickshaw pullers after hitting the complainant. The driver of the offending vehicle had fled away from the spot after hitting PW1. Police official recorded statement of injured/complainant in the hospital Ex.PW1/A. PW1 stated that he was not aware about the registration number of the offending vehicle and also declined to identify the driver of the offending car.
This witness was cross examined by Ld. APP for the state as he was resiling from his previous statement, but he denied almost all the suggestions of the Ld. APP regarding culpability of accused Shahid Khan.
Witness Ganga Dhar was summoned through IO/DCP, who was not traceable and vide order dated 23.09.2014, the said witness was dropped from the list of witnesses being not traceable.
FIR No. 114/2012 State Vs. Shahid Khan Page No. 7 / 13
The remaining witnesses who are yet to be examined by the prosecution are all formal/ police witnesses. None of the remaining witnesses is a witness to the commission of offence of theft and no other witness is competent enough to prove the guilt of the accused.
JUDICIAL RESOLUTION From the testimony of complainant it can be inferred that driver of the offending vehicle was driving the vehicle in rash and negligent manner. As regards identity of offending vehicle and driver, PW1 deposed:
"I do not know the registration number of the offending vehicle. I cannot identify the driver of the offending vehicle. I had not seen the accused at the spot. Nobody has come to my house for compromise regarding the accident'.
Therefore, the sole eye witness to the accident remained silent as regards the registration number of the offending vehicle and identification of accused.
Despite cross examination of the complainant by ld. APP, nothing incriminating has come on record against the accused in his cross by ld. APP, complainant stated:
" I cannot say what was the registration number of the offending vehicle because accused had run away from the spot. It is incorrect to suggest that accused/driver namely Shahid had come to my house and requested me for compromise in the present matter in the presence of my mother. Confronted with the statement FIR No. 114/2012 State Vs. Shahid Khan Page No. 8 / 13 Ex.PW1/B from point A to A where it is so recorded. It is incorrect to suggest that I am not identifying the driver of the offending vehicle deliberately because I have compromised the present matter outside the court."
Thus, there is nothing in the testimony of complainant which is incriminating against the accused.
The prosecution has thus failed to prove through the testimony of complainant/victim/that at the time of accident the offending vehicle was being driven by accused and also failed to disclosed the registration number of the offending vehicle. The said incriminating fact cannot be proved by the prosecution through the testimonies of doctors or other police witnesses, as none of the other witnesses is a witness to the accident (i.e. the manner in which the accident took place and that as to who was driving the vehicle at the time of the accident).
In the opinion of the court, the present case is a fit case where the court should exercise its power under section 258 of Cr. P.C and stop the proceedings qua offences u/s 279/338 IPC as continuing with trial will not only be wastage of state money rather it will also be wastage of judicial time and harassment to the accused.
In "P. Ramachandra Rao v. State of Karnataka" AIR 2002 SUPREME COURT 1856 ( Coram : 7 S. P. BHARUCHA, C.J.I., S. S. M. QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, Mrs. RUMA PAL, A. PASAYAT, JJ.) the Honorable Supreme Court while commenting FIR No. 114/2012 State Vs. Shahid Khan Page No. 9 / 13 upon the right to speedy justice observed:
"22. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. Explanation2 to Section 309 confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. Section 258, in Chapter XX of Cr.P.C., on Trial Summons cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power to the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under Section 482 of Cr.P.C. for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied) "30.For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (1996 AIR SCW 2279 : AIR 1996 SC 1619 : 1996 Cri LJ 2380) (as FIR No. 114/2012 State Vs. Shahid Khan Page No. 10 / 13 modified in Common Cause (II) 1997 AIR SCW 290 : AIR 1997 SC 1539 : 1997 Cri LJ 195 (1998 AIR SCW 3208 : AIR 1998 SC 3281 : 1998 Cri LJ 4596) and Raj Deo Sharma (I) and (II) (1999 AIR SCW 3522 : AIR 1999 SC 3524 : 1998 Cri LJ 4541), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold: (1) The dictum in A.R. Antulay's case is correct and still holds the field. (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial. We uphold and reaffirm the said propositions. (3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket formula. Their applicability would depend on the fact situation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The timelimits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma Case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such timelimits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and a mandatorily obliging the court of terminate the same and acquit or discharge the accused.
(5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions.
(6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary -
quantitatively and qualitatively by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act." (emphasis supplied) FIR No. 114/2012 State Vs. Shahid Khan Page No. 11 / 13 In "Pankaj Kumar v. State of Maharashtra" AIR 2008 SUPREME COURT 3077 (Coram : 2 C. K. THAKKER AND D. K. JAIN, JJ.)the Honorable Supreme Court, while relying upon the aforesaid judgment, observed:
"16. Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down timelimits as bar beyond which a criminal trial shall not proceed pronouncements of this Court in "Common Cause" A Registered Society Vs. Union of India (UOI) and Ors., "Common Cause", A Registered Society Vs. Union of India and Ors., Raj Deo Sharma Vs. State of Bihar and Raj Deo Sharma II Vs. State of Bihar gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused. The confusion on the issue was set at rest by a sevenJudge Bench of this court in P. Ramachandra Rao Vs. State of Karnataka. Speaking for the majority, R.C. Lahoti, J. (as his Lordship then was) while affirming that the dictum in A.R. Antulay's case (supra) is correct and still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the A.R. Antulay's case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a straitjacket formula. Their applicability would depend on the factsituation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial. In appropriate cases, jurisdiction of the High Court under Section 482 Cr. P.C. and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions. The outer limits or power of limitation expounded in the aforenoted judgments were held to be not in consonance with the legislative intent." (emphasis supplied) Accordingly, in the opinion of the court, in the light of the above cited judgments, the court needs to exercise its power under section 258 Cr.P.C qua offences u/s 279/338 IPC to make the ends of justice meet.FIR No. 114/2012 State Vs. Shahid Khan Page No. 12 / 13
FINAL ORDER In the light of the aforesaid discussion and cited judgments, the court while protecting the right of the accused to have speedy justice invokes the power conferred upon it under S.258 of Cr. P.C to stop the proceedings against accused Shahid Khan qua offences u/s 279/338 IPC in the present summons police case and hereby releases the accused Shahid Khan under sections 279/338 IPC, which shall have the effect of acquittal.
File be consigned to Record Room.
ANNOUNCED ON 03.01.2015 (SAURABH PARTAP SINGH LALER) ACMM(East)/ KKD/03.01.2015 Certified that this judgment contains 13 pages and each page bears my signatures.
(SAURABH PARTAP SINGH LALER) ACMM(East)/ KKD/03.01.2015 FIR No. 114/2012 State Vs. Shahid Khan Page No. 13 / 13