Telangana High Court
Cherukuri Madhavi vs The State Of Telangana And Another on 19 October, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
HONOURABLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.8067 of 2018
ORDER:
This petition is filed seeking quashment of charge sheet in PRC.No.13 of 2018 against the petitioner/A2.
2. The facts in brief as per the charge sheet are that on 17.01.2018 at 9.30 a.m., the de-facto complainant along with his deceased wife by name Radha, his elder son another deceased by name Mahesh and younger son Manish age 4 years started on his bike bearing No. TS 08 EF 1511 returning from his in-laws house from Srinathapuram, Nalgonda to their residence at Meerpet and at 1.00 p.m. when they reached Sushma X road, National Highways Road No.65, Hyderabad, he stopped the bike at traffic single. In the meanwhile, deceased No.2/Naresh, who was riding Pulser bike bearing No.TS 07 FT 7365, was also proceeding from his house to his work place. Similarly, a seven seater auto bearing No.AP 09 W 1658 driven by LW.3 along with passengers came to the said Sushma X Roads traffic signal. In the meanwhile, A1 who is the driver of the tipper lorry bearing No.AP 11V 6264, has driven the lorry with high speed in rash and negligent manner endangering to the life and dashed to the seven seater auto of LW.2 and thereafter dashed to the Pulser bike of deceased No.2 and 2 thereafter dashed to the Honda shine of LW.1 as a result the son of the deceased and a Mahesh aged about 7 years succumbed to death on account of crush head injury on the spot and also rider of pulser bike Naresh died on the spot, whereas his wife received injuries on stomach and shifted to Ghandi hospital for better treatment and on 22.01.2018 she also died while undergoing treatment.
3. A case has been registered in Crime No.55 of 2018 for the offence under Sections 304-II, 337 and 279 IPC. During the course of investigation statements of witnesses were recorded, scene of offence panchanama was conducted, vehicles were seized and conducted inquest on the dead bodies and postmortem examination was also conducted. A1 was apprehended. Police collected the registration certificate and other documents of the vehicle, which revealed that vehicle is registered in the name of the petitioner/A2, that the fitness of the vehicle was expired and not valid and the petitioner being the owner has handed over the lorry to A1 without having fitness, thereby owner is also liable under Section 304-II IPC. On completion of investigation, charge sheet is filed against both A1 and A2 for the offence under Section 304-II, 337 and 279 IPC and Section 56/39 read with 192 (2) and Section 146 3 read with 196 of the Motor Vehicles Act, cognizance of which was taken against the both the accused.
4. Aggrieved by the same, the present petition is filed on the following grounds:
a. After coming to know that the petitioner/A2 has filed Crl.M.P.No.323 of 2018 in Crime No.55 of 2018 and the petitioner was granted anticipatory bail. The police could not rely on the goods permit carriage issued by the transport department for the crime vehicle No.AP 11V 6264 having permit from 19.12.2018 and the same was ignored by the investigating officer intentionally. The petitioner is no way concerned with the accident allegedly committed by A1 and criminal liability cannot be fastened on her and therefore, prayed the Court to quash the charge sheet.
5. The de-facto complainant filed counter denying the contentions of the petitioner and also mentioning specifically that the driver of the crime vehicle/A1 failed to renew the fitness of the vehicle and thereby as on the date of accident, there was no fitness certificate to the vehicle and also the vehicle was not insured and the petitioner has filed fake and fabricated documents before the Court and tried to escape from the criminal liability.
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6. Heard both sides and perused the record.
7. Now, the point for determination is whether the proceedings against the petitioners in PRC.No.13 of 2018 can be quashed?
8. The only ground on which the petitioner/A2 is seeking quashment of PRC registered against her is that she is no way concerned with the alleged offence and if at all the driver has committed the offence under Section 304-II and other offences, she being the owner cannot be fastened with criminal liability.
9. On the other hand, Sri S. Ganesh, learned Assistant Public Prosecutor and the learned counsel representing respondent No.2 have submitted that the petitioner being the owner has not maintained the vehicle in proper way, there was no fitness certificate to the vehicle and without having fitness certificate, the vehicle was handed over to A1 and thereby accident has occurred. It is also alleged by the prosecution that there is no insurance to the crime vehicle.
10. Learned counsel for the petitioner submitted that the crime vehicle is having a valid permit. A photocopy of the goods carriage permit is filed which shows that permit was given on 20.12.2013 and valid up to 19.12.2018 for crime vehicle bearing 5 No.AP 11 V 6264, which stands in the name of the petitioner/A2. Similarly, the petitioner has also filed photocopy of Form-23, which is registration certificate. There is no dispute that the vehicle is registered in the name of the petitioner. Unless the vehicle is having fitness certificate, the department will not give goods carriage permit. The petitioner has not placed anything before the Court that once the goods carriage permit is given it is deemed that the vehicle is in fitness condition. The transport authorities will give good carriage permit only in case if the vehicle is in fit condition and he has filed photocopy of the permit dated 20.12.2013 stating permit was given to the crime vehicle until 19.12.2008. It is also submitted that since the crime vehicle was in fit condition, the goods carriage permit was given to the vehicle.
11. It is the specific allegation of the prosecution that the fitness of the vehicle was expired and the vehicle has to be taken to the department and got the fitness certificate to have a road worthy and without fitness certificate the vehicle should not have been taken on the road.
12. It is to be noted that the goods carriage permit was given from 20.12.2013 to 19.12.2018. That means, the said permit was valid for a period of five years from the date of issuance of 6 the permit and the alleged accident has been taken place within the said period. However, as per Rule 62 of the Central Motor Vehicles Rules, 1989, the fitness certificate will be given only for a period of two years. That means, perhaps as on the date of issuance of goods carriage permit i.e., on 20.12.2013, the said vehicle must have fitness certificate and the said fitness certificate must have expired within two years from the date of issuance of such certificate. Assuming that the fitness certificate was issued to the crime vehicle on 21.12.2013 on the day when goods carriage permit was issued, the said fitness certificate must have been expired by 19.12.2015.
13. The petitioner, being the owner of the crime vehicle, has to take the fitness certificate after taking the vehicle to the concerned authorities and after verifying whether the vehicle was in fit condition etc. But, the petitioner has not filed any certificate to show that whether fitness certificate was there and if so until what date and when it was expired and she should have demonstrated more particularly that as on the date of accident, the vehicle was in fit condition. Therefore, considering the same, since no fitness certificate is filed by the petitioner, her contention that since there is goods carriage permit, the vehicle was in fit condition, cannot be accepted. 7
14. The investigating officer has arrayed the petitioner/A2 as one of the accused, as the crime vehicle was not in fit condition and if the petitioner has given the vehicle to A1, since A1 has committed the offence, whereby three persons were died, the contention of the petitioner that criminal liability cannot be fastened against her cannot be accepted.
Section 304 Part-II IPC runs as under:
"304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
In order to fasten the criminal liability under Section 304- II IPC, the prosecution is expected to make out a case that the death was caused by the act of the accused and that he knows that such act is likely to cause the death.
15. In the case on hand, there is no record to show that the vehicle is in fit condition. As no certificate of fitness is filed, the vehicle is not in fit condition and that the vehicle is not supposed to ply on the roads as it will risk the lives of the 8 citizen. Therefore, the petitioner being the owner of the vehicle should have restrained from giving the vehicle to A1 until the vehicle was tested by the department and gives a certificate that the vehicle was in fit condition.
16. The Apex Court in Alister Anthony Pareira v. State of Maharashtra1 had an occasion to deal with scope and ambit of Sections - 279, 299, 300, 304 and 304 Part-II and also considered the following questions:
"(i) Whether indictment on the two charges, namely, the offence punishable under Section 304 Part II IPC and the offence punishable under Section 338 IPC is mutually destructive and legally impermissible? In other words, whether it is permissible to try and convict a person for the offence punishable under Section 304 Part II IPC and the offence punishable under Section 338 IPC for a single act of the same transaction?
(ii) Whether by not charging the appellant of `drunken condition' and not putting to him the entire incriminating evidence let in by the prosecution, particularly the evidence relating to appellant's drunken condition, at the time of his examination under Section 313 of the Code, the trial and conviction of the appellant got affected?
(iii) Whether prosecution evidence establishes beyond reasonable doubt the commission of the offences by the appellant under Section 304 Part II, IPC, Section 338 IPC and Section 337 IPC?
(iv) Whether sentence awarded to the appellant by the High Court for the offence punishable under Section 304 Part II IPC requires any modification?"
1 (2012) 2 SCC 648 9
17. A perusal of the charge sheet and the statements of witnesses would go to show that A1 was rash and negligent on account of which the accident took place where three persons died. The Motor Vehicle Inspector, who has inspected the crime vehicle, has mentioned as under:
"Road test could not be conducted due to break failure i.e., lack of schedule maintenance."
That means, the accident took place on account of failure of break. If the vehicle was put to test in respect of its fitness or road worthiness, then perhaps the defect of the vehicle could has been noticed and it could have been rectified and only then fitness certificate could have been given. Mechanical vehicles require maintenance periodically. That is the reason why fitness certificate, as required under the Act, has to be taken from the department. In the case on hand, it is alleged by the prosecution that there is no fitness certificate, thereby the accident has taken place.
18. On the other hand, learned counsel for the petitioner submitted that the vehicle was in fit condition, however, no such certificate is required. Learned counsel also submitted that the criminal liability cannot be fastened on the petitioner being the owner of the crime vehicle and the remedy available for the de-facto complainant and other legal heirs of the 10 deceased persons is to file a petition under the Motor Vehicles Act for awarding compensation for causing death of the deceased persons. Therefore, when the civil remedy is available for the de-facto complainant, the de-facto complainant has converted a civil case into criminal case in order to harass the petitioner and a false case has been foisted. In support of his contention, he has relied on the judgment of the Apex Court in Alpic Finance Limited vs. P. Sadasivan and another2, wherein it is held at paragraphs 11 and 12 as under:
11. Moreover, the appellant has no case that the respondents obtained the article by any fraudulent inducement or by willful misrepresentation. We are told that respondents, though committed default in paying some installments, have paid substantial amount towards the consideration.
12. Having regard to the facts and circumstances, it is difficult to discern an element of deception in the whole transaction, whereas it is palpably evident that the appellant had an oblique motive of causing harassment to the respondents by seizing the entire articles through magisterial proceedings. We are of the view that the learned judge was perfectly justified in quashing the proceedings and we are disinclined to interfere in such matters."
In Vijay Kumar Ghai and others vs. State of West Bengal and others3, the Hon'ble Apex Court held at para 25 as under:
"25. This Court has time and again cautioned about converting purely civil disputes into criminal cases. This Court in Indian Oil Corporation vs. NEPC India Ltd., 2 (2001) 3 SCC 513 3 (2022) 7 SCC 124 11 ((2006) 6 SCC 736) noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court further observed that:
"13.... Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged."
In M/s. Neeharika Infrastructure Private Limited vs. State of Maharashtra4, a Three-judge Bench of the Apex Court laid certain conclusions for the purpose of exercising powers by High Court under Section - 482 Cr.P.C and also Article - 226 of the Constitution of India, which are as under:
"....
iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'.
(The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.
4 AIR 2021 SC 1918 12
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and
xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR." 13
19. Similarly, the vehicle was also not having insurance. However, not having insurance certificate will not in any way effect the case of the petitioner because though under the Motor Vehicles Act taking insurance to the vehicles is mandatory, still not renewing it does not and will not result into the unfortunate accident if at all insurance is not there. If insurance is there, if at all any compensation has to be paid, it will be paid by the insurance company. In case if insurance is not there it will have to be borne by the owner of the vehicle. Therefore, if at all there is no insurance, the petitioner can be fastened with criminal liability under Section 304-II IPC.
20. The allegation of the prosecution that the crime vehicle bearing No. A.P.11V 6264 was not in fit condition and fitness certificate, which was issued earlier, was expired, thereby the petitioner being the owner should not have given the vehicle to A1 and if the vehicle is not given, the accident should have been avoided. The petitioner did not mention anywhere in her grounds that the vehicle was in fit condition and the department has given fitness certificate. What all the petitioner has been alleging and asserting is that the transport department has given permit which is valid up to 19.12.2018, thereby the investigating officer should not have charged the petitioner. 14
21. This Court has closely perused the permit given in favour of the petitioner in respect of the crime vehicle and in the entire permit there is no mention that the vehicle was in fitness condition. Similarly, the petitioner has not placed any material that if at all a permit has been given, it does mean that the vehicle was in fit condition. Therefore, there is no connection between the fitness and the permit given by the department. Therefore, once there is no record that the vehicle was in fit condition, the petitioner being owner is also vicariously liable.
22. Considering the circumstances, there is a prima facie material against the petitioner/A2 also in respect of the offences alleged against her. Therefore, the case against the petitioner/A2 cannot be quashed.
23. In the result, the criminal petition is dismissed.
Miscellaneous applications, if any, shall stand closed.
_____________________ DR. D.NAGARJUN, J Date: 19.10.2022 ES