Prashant G. Karande vs State Of Maharashtra Through ...
2002 Latest Caselaw 762 Bom

JUDGMENT

J.G. Chitre, J.

1. Heard all the parties.

2. This petition arises out of a F.I.R. which has been written by Respondent No. 3 Kondaji Shivram Sabale, Head Constable, then attached to Sangameshwar Police Station, Taluka Sangameshwar, District Ratnagiri, in context with the incident which took place on 2.1.1997 at about 2.30 p.m. at the spot which was near "Dhamani" petrol pump on high way leading towards Mumbai from Ganpatipule side. The Petitioner Prashant Karande, advocate was travelling by his car of Fiat make bearing No. MH-01-P-6409 when he was returning from Ganpatipule and was going to Mumbai along with his wife, mother-in-law and sister-in-law. He was driving the said car as contended by him at the speed of 40-50 kms per hour. It is the averment of Shri Karande, the petitioner, that on account of some oil present on the road, the car skidded and collided a nilgiri tree resulting in an accident in which his mother-in law, sister-in-law, wife and he himself sustained injuries. As law abiding citizen he went to Sangameshwar Police Station and gave the information about the said accident when respondent No. 3 Kondaji Sabale, Head Constable, was police station officer of Sangameshwar Police Station. He recorded the information given by Shri Karande and thereafter wrote his own FIR in which he alleged that Shri Karande was driving the said car rashly and negligently and thereby he committed the offence punishable under Section 279, 337 and 427 of IPC, Shri Rane, Respondent No. 2, believing on the work done by Shri Kondiba Sabale, Head Constable Respondent No. 3, forwarded a charge sheet against Shri Prashant Karande, Advocate to the Court of JMFC, Deorukh. Shri Prashant Karande was required to attend the said court and was required to obtain the bail order from the said Court. Being aggrieved by that, he filed this criminal writ petition making a prayer for getting a writ of certiorari in his favour quashing the said FIR, the said criminal proceeding arising out of C.R. No. 4/97 C.C. No. 190 of 1997.

3. Shri Karande, the petitioner, submitted that the FIR which has been written by Shri Sabale does not show any where that Shri Karande was driving the said car rashly and negligently. Only there happens to be a sentence which has been interpolated in between two lines which does not have any context or connection whatsoever with those two lines in between which are in existence. He submitted that because of the said FIR and because of the said charge sheet a criminal case has been initiated against him and he has been unnecessarily, improperly and illegally arraigned as an accused before a criminal Court. He submitted that it has caused a mental shock to him and a dent to his reputation. He submitted that in the interest of justice the said FIR, the said charge sheet and the said criminal case need to be quashed.

4. Shri Saste, Counsel appearing for the Respondents, submitted that the said sentence seems to have been added on account of immaturity on the part of the Respondent No. 3 and his wrong belief that in every accident the person driving the vehicle needs to be made an accused for the offences punishable under Section 279 and 337 of IPC. He supported the plea raised by Respondent Nos. 2 and 3 pleading innocence by submitting that had Respondent No. 3 been cunning, shrewd and mischievous, he would have taken care right from the beginning to draft the FIR in a systematic way. He submitted that on account of the pressure of the work, Respondent No. 2 Rane might have committed a mistake of not scrutinizing very cautiously and carefully the said FIR and the investigation made by Shri Sabale before filing the charge sheet. Reiterating the contentions raised by Respondent Nos. 2 and 3 Shri Saste submitted that on account of the increasing population the pressure and load of the work has increased in every police station. Therefore a sympathetic view needs to be taken in respect of the said drafting of the FIR.

5. After carefully examining the said FIR and the said sentence, this court does not agree with Shri Prashant Karande so far as vexatiousness behind adding that sentence is concerned. That sentence seems to be added without any malice and the said statement creates malice towards none. It seems to be an act of an immature person, inexperienced person and a person who is harbouring wrong impression of legal concepts. In the interest of justice when this Court made the enquiry about the academic qualifications of Shri Sabale it was revealed that Shri Sabale has studied only upto 9th Standard. It was also revealed that it was one of the few investigations done by him. Sangameshwar Police station happens to be a small police station. The duty which Shri Sabale was doing in that police station was of insignificant importance. That may be on account of his inadequate qualification and inadequate experience. At present he has been shifted to do the duty of acting as guard to accused escorting party. That is self-eloquent. On account of his inexperience and unfortunateness in not getting the higher education, he must have been taken off from active duty and must have been put to an escort guard duty which is treated to be insignificant duty in police department.

6. This Court finds substance in the submission advanced by Shri Saste that had he been wicked, shrewd, mischievous and cunning, he would have right from the beginning drafted the FIR in a systematic way and would not have committed a mistake as it is apparently seen from the FIR. The said sentence must have been added account of sheer ignorance of law and on account of extra enthusiasm shown by Respondent No. 3. It does not mean anything more than that, definitely not a malicious act.

7. However, that has caused serious prejudice to the mental peace of Petitioner Karande and, therefore, this Court examined the material which has been placed before this Court very carefully for the purposes of finding out whether the prosecution is justified by the facts and circumstances of the said accident as revealed by the investigation done.

8. The investigation gone shows that the said road was sufficiently broad and there were spots showing greasy material on the road. The said accident had taken place near a petrol pump. That also adds t the contention of Shri Prashant Karande contending that the said car skidded and dashed against the said nilgiri tree. It is pertinent to note at this juncture that in the said car Karande's wife, his mother-in-law and sister-in-law were travelling. when such nearest kith and kin were travelling with him why Karande should afford himself to be reckless and negligent endangering the lives of all including his own? It is also to be noted that they were coming from Ganpatipule. That itself means that Karande must have taken his wife and his mother-in-law to a pious place like Ganpatipule for the purpose of taking darshana of Lord Ganesh and when for that purpose he had gone to Ganpatipule why he should be so reckless while driving the said car when he himself was driving it?

9. Rashness means that the person is aware that his act is likely to bring the calamity but hoping that calamity would not come continues in doing such an act. Here he has knowledge that his act is dangerous and he is exposing himself to such danger. A Singleton can afford to invite such calamity but normally as human experience tells, the person travelling with his family members, would not invite such calamity. On the contrary, would behave in all limits and would drive the car cautiously and carefully. Driving car in speed does not by itself mean that the person is driving the car negligently or rashly. A person may drive a car with high speed, with moderate speed, but even then he would not be negligent if he is in a position to control his car and drive it properly keeping his mental and physical faculties alert. Therefore, the speed will not be the sole criteria to come to the conclusion that by speed only the person was driving the vehicle rashly or negligently. Therefore, even if that statement is taken as it is, it does not make out a case of an offence punishable under Section 279 or 337 of IPC.

10. For the purpose of coming to a conclusion whether a person is driving a vehicle rashly or negligently, number of factors have to be considered. They can be enumerated, for example and the list cannot be taken to be exhaustive.

1) Speed.

2) Indifference towards speed and control of the vehicle.

3) Driving the vehicle in clumsy way,

4) Driving the vehicle by taking dangerous turns.

5) Without bothering about the fate of the persons using the road like him; including other vehicles drivers and pedestrians and the persons sitting by the side of the road, etc., etc.,

Therefore, if the present FIR is seen by applying these factors, there would be only one conclusion that is that no offence has been made out to indicate that the Petitioner Prashant Karande was driving the said vehicle rashly and negligently and thereby committed offences which were punishable under Section 279 or 337 of IPC and one punishable under Section 116 of the Motor Vehicle Act, 1988.

11. This leads to another aspect of the case and that is the offence which is punishable under Section 427 of the IPC. It is true that a person can commit an offence under Section 427 of the IPC even by causing damage to his own property. However, while scanning such situation a maxim "actus non facit reum, nisi mens sit rea" has to be taken into consideration. The intention behind committing the act has to be taken into consideration so also the auxiliary factors, the surrounding circumstances have also to be considered and it is to be seen whether the act was committed by that person with the intention of committing an offence or committing a mischief which is punishable in view of provisions of Section 427 of the IPC. If the FIR or the investigation done in the present case is seen by any angle, this offence is not spelt out at all.

12. Unfortunately, the police officers now-a-days like many other public servants are fully loaded with the pressure of work on account of the limitless growing population which is coming as a menace to everybody. In the haste and bustle of work, Respondent No. 2 PSI Rane might have also committed a mistake in forwarding that charge sheet to Court of JMFC Deorukh. That has resulted in agony and annoyance to petitioner Prashant Karande, Advocate. With all humbleness and generosity at his command, shri Prashant Karande himself stated that this Court be pleased to take a sympathetic view in respect of the cause causing him agony and annoyance. Keeping in view the fats and circumstance of this case, this Court finds that the acts committed by both Shri Rane Respondent No. 2 and Shri Sabale Respondent No. 3 are not so serious so as to take strict view against them. This Court hopes that they will be more particular in their duties henceforth for their own interest and in the interest of society at large because both of them are public servants.

13. What is incorrect is seldom proper. What is incorrect and improper is generally illegal. After scanning the material on record, this Court has come to a definite conclusion that the entire act of writing of the FIR, thereafter forwarding the charge sheet to the JMFC, Deorukh and the prosecution initiated on it, is incorrect, improper and illegal. What is incorrect, improper and illegal cannot be permitted to survive for a moment because it causes serious prejudice to a citizen who happens to be innocent. Keeping in view the principles of criminal jurisprudence followed in India, this Court comes to the conclusion that the said FIR, charge sheet and resultant prosecution has to be quashed. Therefore, this Court grants a writ of certiorari in favour of the Petitioner and quashes the said FIR, resultant charge sheet and ultimate prosecution which resulted in registering of Sum. Case No. 190/1997, (FIR 4/97) on the file of JMFC, Deorukh. Shri Prashant Karande is declared to have been exonerated from the said prosecution as that prosecution has been quashed. The bail bond furnished by him is treated as cancelled.

14. Parties to act on an ordinary copy of this order duly authenticated by the Private Secretary of this Court.