Rihan Rashid Kalathil vs State Of Maharashtra
2022 Latest Caselaw 9743 Bom

                                                                BA-2185-2022.doc


 Rajshree


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CRIMINAL APPELLATE JURISDICTION
                       BAIL APPLICATION NO.2185 OF 2022
                                  ALONGWITH
                    INTERIM APPLICATION NO.2716 OF 2022
                                      IN
                       BAIL APPLICATION NO.2185 OF 2022
 Rihan Rashid Kalathil                     ]   ..      Applicant
         vs.
 State of Maharashtra                      ]   ..      Respondent

Senior Advocate Mr.Aabad Ponda a/w Mr.Waqar Pathan for the Applicant.

Mr.Rizwan Merchant i/b Ms.Vinita Dandekar, for the Intervener. Ms.P.N. Dabholkar, APP for the State.

                           CORAM         :     BHARATI DANGRE, J
                           RESERVED ON   :     24th AUGUST, 2022
                           PRONOUNCED ON :     26th SEPTEMBER, 2022.

 P.C.

 1]      The Applicant came to be arrested on 30.03.2022 in connection

with CR No.85/2022 registered with Gamdevi Police Station which

initially accused him of committing offence punishable under Section

279 and 338 of the Indian Penal Code and subsequently, offence under

Section 304-A, 304(ii) of the Indian Penal Code, alongwith 184, 185,

15(2)(9) and 177 of the Motor Vehicles Act came to be inserted.

2] Heard senior counsel Mr.Aabad Ponda for the Applicant, learned

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counsel Mr.Rizwan Merchant for the Intervener - the mother of the

deceased Aditya Desai,who succumbed to the injuries sustained to him

in the accident and the learned APP Ms.P.N. Dabholkar for the State.

3] The learned senior counsel representing the Applicant would

submit that the Applicant is a doctor by profession and when the

alleged incident took place he was working as senior resident doctor in

Sir J.J. Group of Hospital and while arguing for the Applicant, he would

submit that the investigation being complete, in a case where it is not

conclusively established by the prosecution whether the case would fall

within the purview of Section 304A or 304(ii) of the Indian Penal Code,

subject to any conditions that may be imposed upon the Applicant, he

may be released on bail. He would submit that "rashness" consist of

hazarding someone's life or committing the hazardous act with

"knowledge" of it being so, and that such an act may cause an injury.

The submission is, criminality lies in the recklessness or activities

which lead to the culpability and he would submit that absence of

rashness in the act of the Applicant do not warrant his implication under

Section 304(ii) of the Indian Penal Code and at the most it would

attract Section 304A of the Indian Penal Code.

4] Dealing with the accusation that the Applicant was under the

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influence of liquor, the learned senior counsel would place reliance

upon the FSL report, which has disclosed presence of 12 mg. of Ethyl

alcohol, which is much less than permissible limit and by relying upon

this report, it is submitted that the Applicant was not in such inebriated

state, that he could not control his vehicle and this act by itself was

responsible for the accident. By inviting my attention to the site/spot

where the incident took place, by bringing on record several

photographs, it is suggested that there is no divider/diversion on the

road and there is a sharp turn towards right, which led to the untoward

incident, which can be described as unfortunate event, for which

attempt is made to fasten the criminality disproportionately.

5] Referring to the order of the Sessions Court, rejecting the bail,

as sought for, the learned counsel would submit that the only

apprehension that there is possibility of tampering would not justify his

further detention, when the investigation is complete. Submitting that

the Applicant is a doctor by profession and a meritorious student and

his further studies are adversely affected, as he need to submit his

thesis, but in absence of which he was not allowed to appear in his

examination for Masters in Surgery (MS), would cast him with a liability

of Rs.50 Lakhs, to be paid as penalty and would also affect his future

prospects, is the submission. The argument is, that the Applicant may

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be tried for the offence with which he is charged and may even take

the consequences depending upon the outcome of the trial, but his

present detention pending his trial can be avoided.

6] Per contra, Mr. Rizwan Merchant, the learned counsel for the

intervenor, would lay emphasis on the unfortunate incident and the

manner in which it took place, which had resulted into death of a young

boy who happen to be the sole surviving member in the family.

He placed reliance upon the decision in the case of State of

Maharashtra vs. Alister Anthony Pareira and he would also strenuously

refer to the decision of this Court in case of Mr.Nikhil Wagle and

others vs. State of Maharashtra & Ors. (PIL No.77/2022), wherein

taking cognizance of the drunken driving, several directions were

issued to the State and Central Government, as it was noticed that

drunken driving has become a menace to the society, which result in

frequent accidents and several human lives are lost and no one in the

city feel safe and at times has to suffer irreparable loss, as a person

driving in a drunken state is unable to co-ordinate his reflexes and

poor judgment and slowing down of reflexes, at times result in serious

accidents.

By placing reliance upon the material compiled in the charge-

sheet, Mr. Merchant would vehemently submit that the present case

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clearly reveal that the Applicant had consumed liquor and it had

adversely affected his capacity to exercise control over the vehicle and

in the drunken state he was not capable of understanding the

consequences of his acts, which was result of slowing down of his

reflexes and distortion of vision, it had become impossible for him to

judge accurately, his position as well as the position of the motorcycle

which the deceased was driving. The submission is the alcohol

consumption had impaired his consciousness and made him drive

recklessly, right in the middle of the road, unmindful that he would dash

on a vehicle coming from opposite direction. Apart from this, it is

submitted that the Applicant himself is a Doctor and expected to be a

responsible citizen, who should value life.

7] The learned APP join Mr.Merchant in his submission and by

referring to the statements of witnesses viz Dr.Ramsha Shabbir Ahmad

Ansari, Dr.Mimoni Rakesh Kumbhare and Dr.Juveria Ansari who were

present in the car, when the accident took place, she would submit that

the Applicant lost control over the vehicle and he was driving on the

wrong side, when the deceased riding his motorcycle was not noticed

by him and having consumed alcohol his reflexes were impaired. She

would rely upon an important circumstance, that the Applicant

alongwith his friends had consumed liquor in a restaurant at Kala

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Ghoda, Fort and the bill of the said restaurant is placed on record to

show huge quantity of alcohol being consumed. Ms.Dabholkar would

submit that alcohol examination test report reveal presence of 12 mg.

of ethyl alcohol in his blood. Relying upon the mechanical inspection

report of the vehicle, which the Applicant was driving and by relying

upon the photographs of the HeroHonda motorcycle which the

deceased was driving, she had made a sincere attempt to bring on

record the impact of the collision, which resulted in the deceased

deceased being thrown from the flyover and his resultant death by

Polytrauma.

The learned APP would assertively submit that the case of the

Applicant would squarely fall within Part II of Section 304 of the IPC,

which prescribe punishment for culpable homicide not amounting to

murder. She would place reliance upon the decision of the Apex Court

in the case of State vs. Sanjiv Nanda (2012)8 SCC 450 and also upon

the decision of the Apex Court in the case of Alister Anthony Pareira

vs. State of Maharashtra 2012 (2) SCC 648.

Considering the seriousness of the offence and penalty which is

likely to be imposed upon the Applicant after trying him, the learned

APP would submit that it is not a fit case where the Applicant deserve

his release on bail.

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8] The moot question that arises and warrant consideration by me,

is whether the prosecution is justified in bringing the case within Part II

of Section 304 of the Indian Penal Code or whether the circumstances

narrated would lead to an offence punishable under Section 304A of the

Indian Penal Code.

Section 304A of the Indian Penal Code, carves out a specific

offence where death is caused by a rash or negligent act and that

does not amount to culpable homicide under Section 299 or murder

under Section 300 of the Indian Penal Code. If a person willfully drives

a motor vehicle into the midst of a crowd and thereby causes death of

some persons, it will not be a case of mere rash and negligent driving

and the act will amount to culpable homicide.

Section 304 of the Indian Penal Code by its own definition totally

excludes the ingredients of Section 299 or 300 of the IPC. Doing an

act with an intention to kill a person or knowledge that doing of an act

was likely to cause a person's death, are essential ingredients of

offence of culpable homicide. When intent or knowledge as described

above is the direct motivating force of the act complained of, Section

304A has to make room for the graver and more serious charge of

culpable homicide.

9] The case of the prosecution, as compiled in the charge-sheet

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could be discerned from the statements of several witnesses, some of

whom are the eye witnesses. Police personnel, Mr.Sachin Ugale

lodged a report on 28.03.2022, reporting about the injuries sustained by

the victim Aditya Desai, who was riding on his motorcycle from Kemps

corner bridge towards Babulnath temple and the Applicant was driving

the car and coming from the opposite direction. The prosecution

allege that the Applicant was driving his vehicle, after consuming liquor

and since he was not into his senses, he was driving it in the other

lane, and had knowledge that such a negligent act would cause

destruction of life and he is accused of negligent and rash driving and

responsible for causing serious injuries to the person riding on the

motorcycle. The prosecution allege that this rash and negligent driving

of the Applicant resulted in collision and the injured fell down off the

bridge and sustained severe injuries. He was admitted to J.J. Hospital

by the Applicant and his friends, however, he succumbed to the injuries.

The incident is alleged to have taken place at 1.55 a.m. on

28.03.2022. The prosecution has included the spot panchanama in

the charge-sheet, to describe the location, where the accident

occurred. The spot panchanama record the actual location as well as

the condition of the silver colour Maruti Suzuki vehicle which was driven

by the Applicant and also the status of the HeroHonda motorcycle

driven by the deceased. In order to demonstrate the impact of rash

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driving of the motorcar, there is also mention of signs of tyre brake on

the spot, three meter in length. The CCTV Footage has also been

collated and compiled in the charge-sheet, which record a footage of

one person falling off the bridge at 01.42.07 and he being carried from

the spot in a white Maruti car between 1.50.00 to 1.52.40. Prior to this,

the footage also record one white colour silver car proceeding towards

Kemps Corner at 1.41.37.

The statement of one Premshankar Tiwari, security guard

attached to a building at Kemps Corner is also recorded, who has

specifically stated that he could hear a big bang sound at 1.45 a.m.,

while he was on duty and he noticed one person falling from the bridge

in front of Shobha Asher Showroom and the person was wearing a

helmet, which he was unable to remove.

10] The charge-sheet has included statements of four doctors who

were accompanying the Applicant in the car, which is responsible for

causing the accident.

The statements of doctors compiled in the charge-sheet

unequivocally narrate the incident dated 27.03.2022, wherein it is

stated that five of the doctors decided to have dinner together and the

Applicant alongwith Dr.Yogesh Chavan reached the Caffe at 10.15

p.m. Three other Doctors were waiting there for them and they all

entertained themselves for 2-3 hours. After dinner, they decided to

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have a joy ride/drive at Marine Drive chowpaty and further decided to

proceed towards Bandra Sea Link.

The version of the witnesses is, at about 1.40-45, the car driven

by the Applicant arrived at Kemps Corner via Babulnath Temple and

since there no divider, the Applicant was driving his car in the middle of

the road, as the road was free with no vehicles being plied. At that very

moment one motorcycle was seen coming from the opposite direction

and in order to save the driver of the motorcycle, the Applicant drove

his car towards his right side and applied brake, but at that very same

time, the driver of the motorcycle also took his bike towards left side,

which resulted in immediate collision. As soon as the motorcycle was

hit by the car, its driver dashed on the right side of the car and fell down

from the bridge.

Dr.Yogesh one of the witness immediately got down from the

bridge, followed by his other friends and reached the place where the

injured was lying. They removed his helmet and since they were

doctors, examined him. He was found to be conscious, but was unable

to speak. The Applicant himself was present there and he reached the

bridge for getting the vehicle to carry the injured to the hospital. No

taxi stopped and thereafter, one motorcar arrived and the injured was

taken to JJ Hospital. The version of all the witnesses corroborate each

other.

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11] The condition of the two vehicles can also be ascertained from

the mechanical inspection report and it has been assessed as under :

Mechanical Inspection Report (Car) 1] Windshield glass cracked at right side. 2] Bonnet sheet metal crushed inside due to impact. 3] Front bumper broken apart.

4] Front-most side cross-member of frame bent inside due to impact.

5] Radiator and front show damaged.

Mechanical Inspection report (HeroHonda) 1] Front wheel rim bent and spokes crushed. 2] Front side telescopic shockabsorber bent backward due to impact, 3] Steering handle bent, front brake lever bent. 4] Front both side indicators,head light assembly, dome totally damaged.

5] Electrical wiring distroyed.

6] Front Madguard bent backward.

7] Fuel tank damaged.

12] The Applicant was arrested and his blood sample was forwarded

for analysis, which analysed that his blood contained 0.012 % w/v of

ethyl alcohol (twelve miligram). The report is also compiled in the

charge-sheet.

The postmortem report in Column No.17 refer to several injuries

in the form of abrasion, contusion and puncture wounds. The cause of

death has been ascertained as Polytrauma.

13] "The issue of bail is one of liberty, justice, public safety and

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burden on the public treasury, all of which insist that a developed

jurisprudence of bail is integral to a socially sensitised judicial process."

The above words of Justice Krishna Iyer in Gudikanti

Narasimhulu and Ors. vs. Public Prosecutor, High Court of Andhra

Pradesh, AIR 1978 SC 429 continue to guide the Courts dealing with

bail applications till date.

14] The above said judicial approach was carried further in the case

of Sanjay Chandra and other vs. C.B.I., 2012(1) SCC 40, where the

following observations were made by the highest Court of this Country.

"The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purpose of bail in a criminal case is to relieve the accused of imprisonment, to relieve the state of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance whenever his presence is required."

Liberty is to be secured through the process of law, while

keeping in mind the interest of the accused, the victim, who has lost his

life and his near and dear ones, who feel helpless and believe that

there is no justice to them and collective interest of the community,

which eventually is not compelled to indulge in private retribution.

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15] The law in regard to grant or refusal of bail by this time is well

settled. The Court granting bail should exercise its discretion in a

judicious manner and not as a matter of course. Though at the stage of

granting bail, detail examination of evidence, elaborate documentation

of merits of the case need not be undertaken, there is a need to

indicate the reasons for prima-facie concluding why the bail is being

granted, particularly when accused is charged of having commited

serious offence.

These facts and circumstances of each case will govern the

exercise of judicial discretion in granting bail. The overriding

considerations in granting bail are nature and gravity of the

circumstances in which the offence is committed; the position and

status of the accused with reference to the victim and the witnesses;

likelihood of the accused fleeing from justice; of repeating offence; of

jeopardizing his own life being faced with a grim prospect of possible

conviction in the case; of tampering with witnesses; the history of the

case as well as its investigation and other relevant grounds and

circumstances; reasonable possibility of securing presence of the

accused at the trial and the interest of the public, which are some of the

relevant grounds which deserve focus, while the application is being

considered.

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16] On perusal of the charge-sheet, the prosecution has charged the

Applicant for the offences under Section 304A as well as 304(ii) of the

IPC alongwith other connected sections. It will be ultimately for the

Court to frame the charge in alternative or charge him for either of the

offences.

The prosecution alleges that the Applicant was driving his car

under the influence of liquor and therefore he lost control over the

vehicle, which was the prime cause for the accident. The case of the

prosecution which surfaces through the statements of witnesses, is

that the Applicant suddenly took a turn to his left and the prosecution

allege that this act, is clearly reflective of his impaired reflexes. By

relying upon the statements of the co-passengers in the car, it is sought

to be concluded that the Applicant moved his car to the right side and

even the driver of the motorcycle also turned to his left, which resulted

in crash.

17] On reading the statements of witnesses, prima-facie it cannot be

inferred that this act of the Applicant was result of his impaired reflexes.

None of the witness has stated that the Applicant was driving in rash

manner or he was over speeding. The witnesses in sync with one

another categorically state that it was at around 1.40-45 when there

was not much traffic on the road and there was no divider on the bridge

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and, therefore, the Applicant was driving his car right in the middle of

the road. They have also stated that he kept his car in the middle and

was taken by surprise when he noticed a motorcycle approaching

towards him and in order to avoid a crash, he applied brakes and took

his car on the right side but to his misfortune, at that very moment, the

driver of the motorcycle also took turn to his left and this resulted in

collision of the two vehicles.

The above narration of the witnesses prima-facie reflect the

conscious sense of the Applicant, who made an attempt to avoid the

head on collision, instead of establishing the prosecution case that the

alcohol had disturbed his metabolism.

Whether alcohol contained in the blood of the Applicant is the

cause of this swift action, is a matter of evidence. No doubt when a

person consumes alcohol it may have the effect on his reflexes, but

full effects of liquor would depend upon the amount consumed, the rate

of consumption, gender, body weight and whether drink has been

consumed on empty stomach or full stomach and dependent upon this,

the after effect of intoxication will have to be judged. Same quantity of

drinks may not necessarily produce similar effect in each individual and

it may vary and depend upon the person's size, metabolism, ethnicity

and other factors. Study on this subject reveal that the time from

consumption of drink would result into status of intoxication and it is

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also possible for a habitual drunkard to develop tolerance and he may

not reveal symptoms arising out of intoxication as against those who

do not drink often. True it is that heavy alcohol consumption comes

with huge range of risk and that is why while making drunken driving as

offence under the Motor Vehicle Act, Section 185 of the Act has

described the acceptable level of alcohol in the blood detected in test

by breath analyser and driving by drunken person under the influence

of drugs/liquor is made punishable, if the alcohol level in blood

exceeds 30 mg/per 100 ml.

In the present case, report of analysis clearly reveal that level of

alcohol in the blood of the Applicant is below the said limit. The burden

would again lie on the prosecution to demonstrate, why the particular

level was noticed, on account of time lapse when the samples were

derived.

18] The prosecution has attributed knowledge to the Applicant, in a

case where he is charged of rash and negligent driving. It is to be

borne in mind that there may be several circumstances of culpability

coupled with attending circumstances indicating additional conduct, act,

omission or commission on part of the offender pre and post accident.

19] While dealing with the scope and meaning of the word

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'knowledge' appearing in Section 304(II) of IPC as well as the

attributability of knowledge to the accused, the Bombay High Court in

the State of Maharashtra vs. Alister Anthony Pareira, has recorded

that by getting drunk and under the influence of liquor, using a big

stone or other weapon for giving blow on the head of person resulting

in death would amount to an act done with knowledge that act is likely

to cause death. Merely because an automatic car or scooter is

involved, would not by itself take the offence outside the scope of

Section 304(II) of the IPC and the Court ultimately has to examine each

facet in the light of the evidence led by the prosecution and the links, if

any, provided by the accused himself in his statement under Section

313 of the Cr.P.C.

The intention and knowledge are two factors which have to be

gathered from the facts and circumstances of each case. The question

is not whether the accused intended to cause serious injury or trouble,

but whether he intended to inflict injury that is found to be present.

"Knowledge" as contrasted with "Intention" signify a state of

mental realisation with the bare state of conscious awareness of

certain facts in which human mind remains supine or inactive.

"Intention" is a conscious state, in which mental faculties are aroused

into activity and summoned into action for the purpose of achieving a

conceived end. Section 304(II) of the IPC require that if an act is done

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with knowledge that it is likely to cause death, it is punishable under

that provision. Culpable homicide not amounting to murder is the

essential ingredient of a charge under Section 304 Part (II). Under

Section 299, culpable homicide is causing death by doing an 'act', with

an intention of causing death as well as knowledge that it is likely to

cause death. The entire emphasis is on the expression 'act' and

'knowledge'. If the offender has knowledge that his acts in normal

course are likely to culminate in commission of an act which is

prohibited in law, the knowledge would be attributable to him, provided

there is direct and/or circumstantial evidence in that regard.

Comprehension of a reasonable person with ordinary prudence who

could speculate the result of his acts or omission, is a relevant

consideration for the Court to arrive at a conclusion when he is tried for

having possessed the knowledge of such events or extent thereof.

The presence of knowledge will ultimately surface during the course of

trial.

Knowledge cannot be construed in abstract and would have to be

determined by applying a norm of normal behaviour and whether the

person can perceive by his senses, the consequences of his acts,

omissions or an overtact.

20] In the wake of above, though the learned counsel Mr. Merchant

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has focused on the gravity of the accusations, in my considered

opinion, the knowledge attributed by the prosecution that the act of the

Applicant would result in death of the deceased , will be determined at

the time of trial. .

In the wake of material compiled in the charge-sheet, and since I

have perused the charge sheet which has included the entire material

collected against the present Applicant and the prosecution is ready to

charge him for the offence under Section 304(II) of the Indian Penal

Code, the question arises, as to whether his further incarceration is

necessary. The maximum punishment which the Applicant would face

on being convicted under Section 304 Part II of the IPC is,

imprisonment of either description for a term which may extend to ten

years, or with fine, or with both.

However, on the investigation being completed, in my considered

opinion, further incarceration is unnecessary. Deprivation of his liberty

cannot be considered as punishment, unless the prosecution

successfully establish his guilt. His incarceration may be justified to

ensure that he shall not avoid the trial, when called upon. Personal

liberty is precious to an individual and it should be curtailed only when it

become imperative, depending upon the facts of the case. A balance is

required to be maintained between the personal liberty of an accused

and the right of police to investigate. It has to dovetail two conflicting

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demands; on one hand the requirement of society for being shielded

from the hazardous of being exposed to the misadventure of a person

alleged to have committed a crime and on the other, the basic canon of

criminal jurisprudence, the presumption of innocence of the accused till

he is found guilty. Basic rule of criminal system being bail is the rule

and jail is an exception. Punishment begins after conviction and every

man is deemed to be innocent until duly tried and pronounced guilty.

21] Considering the fact that the Applicant is a Doctor by profession

and has roots in the society, in any case, he is not required to be

further incarcerated, since it is not the case of the prosecution that he is

at flight risk or he is likely to tamper with the case of the prosecution, I

am inclined to restore his liberty to him, till he faces the trial for the

charges levelled against him.

It is also sought to be canvassed, that the Applicant has to

appear for examination and keeping him incarcerated will serve no

purpose. The prosecution has not expressed any apprehension that he

will be a danger to the society or hamper the interest of the victim and

his family.

The observations made above are prima facie in nature and

limited for the purpose of determination of the present Application and

the learned Judge trying the Applicant for the offences, with which he is

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charged, shall not in any manner be influenced by the above order.

Hence, the following order :

ORDER

(a) Application is allowed.

(b) Applicant - Rihan Rashid Kalathil shall be enlarged on bail in connection with C.R.No.85 of 2022 registered at Gamdevi Police Station on furnishing P.R. bond to the extent of Rs.50,000/- with one or two sureties of the like amount, out of which one surety shall be from the State of Maharashtra.

(c) The Applicant shall be released on cash bail of Rs.50,000/- for a period of four weeks in lieu of sureties. During the said period the applicant shall arrange for the sureties.

(d) The Applicant shall continue to reside in the State of Maharashtra and shall not leave the State without prior permission of the court.

(e) If the Applicant possess the Passport, he shall surrender the same before the Investigating Officer within a period of one week of his release.

(f) The applicant shall mark his attendance to the concerned Police Station on first day of every month between 4.00 p.m. to 6.00 p.m. , till framing of charge.

(g) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of case so as to dissuade him from disclosing the facts to Court or any Police Officer and should not tamper with evidence.

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(h) The Applicant shall regularly attend trial, on every date, unless exempted.

(i) The Applicant shall furnish his residential address and contact number to the Investigating Officer and shall keep him updated of any change.

        (j)       I/A is also disposed off.
                                              [BHARATI DANGRE, J]