Delhi High Court
Shivam Chauhan & Anr. vs The State (Govt. Of Nct Of Delhi) & ... on 5 September, 2018
$~34
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 5th September 2018
+ CRL.M.C. 2759/2018 and Crl.M.A.9813-9814/2018
SHIVAM CHAUHAN & ANR. ..... Petitioners
Through: Mr. Rakesh Nautiyal, Advocate
versus
THE STATE (GOVT. OF NCT OF DELHI) & ORS.
..... Respondents
Through: Mr. Mukesh Kumar, APP for the
State with SI Narender Singh, PS
Vasant Kunj South
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. This petition has been presented invoking inherent
power of this Court under Section 482 of the Code of Criminal
Procedure, 1973 (Cr. PC) with the prayer that proceedings
arising out of first information report (FIR) no.629/16 of police
Station Vasant Kunj (South), involving offences punishable
under Sections 279, 337, and 304-A of the Indian Penal Code,
1860 (IPC) read with Sections 4/181 and 128/177 of the Motor
Vehicles Act, 1988 against the first petitioner and the
kalandara (complaint case) alleging offences punishable under
Sections 5/180 and 146/196 of the Motor Vehicles Act, 1988
against the second petitioner be quashed, on the basis of
settlement reached with the second and third respondents.
2. The petition has been resisted and strongly opposed by
the respondent / State placing reliance on the ruling of a bench
of three Hon‟ble Judges of the Supreme Court in Parbatbhai
Aahir alias Parbatbhai Bhimsinhbhai Karmur and Others v.
State of Gujarat and Another, (2017) 9 SCC 641, the thrust of
the arguments being that the gravity of the offences involved
and their impact on the society at large be not ignored.
3. The petitioners, on the other hand, place reliance on
decisions of learned single judges of this Court in Naveen
Kaushik vs. State and Ors., (2012) 9 AD (Delhi) 529; Mohit
Sareen vs. State, (2015) 1 JCC 358; Manjeet vs. The State
(NCT of Delhi) & Ors, (2016) 1 JCC 574; Ram Karan vs. State
and Ors., (2015) 3 JCC 1685; M.M. Shawl vs. State (Govt. of
NCT) Delhi and Ors., Crl. M.C. 3920/2015, decided on
27.11.2015; and Anil Kumar Nayak vs. State and Ors.,
WP(Crl.) No.2568/2016, decided on 22.01.2018, as also similar
rulings of learned single judges of Himachal Pradesh High
Court, High Court of Punjab and Haryana, High Court of
Madhya Pradesh and High Court of Karnataka respectively in
Sandeep Chodha Vs. State of H.P. (2014) Crl. LJ 4954; Anil
Kumar vs. State of Punjab and Anr., (2009) 3 RCR (Crl.) 258;
Sachin vs. State of Haryana, (2014) 1 Cri.CC 312; Raju @ Raj
Kumar vs. State of Madhya Pradesh, (2016) 1 MPWN 86; and
Srimurthy K.R. vs. The State of Karnataka, Crl. Petition
no.901/2013. Decided on 16.12.2014.
4. It may be mentioned here itself that the aforementioned
rulings of learned single judges of this court have generally
referred to the decisions of the Supreme Court reported as Gian
Singh vs. State of Punjab, (2012) 10 SCC 303 and Narinder
Singh and Ors. vs. State of Punjab and Anr., (2014) 6 SCC
466.
5. The petitioner places reliance on the following
observations in decision in Gian Singh (supra)
"61. In other words, the High Court must
consider whether it would be unfair or contrary to
the interest of justice to continue with the criminal
proceedings or continuation of criminal
proceedings would tantamount to abuse of process
of law despite settlement and compromise between
the victim and the wrongdoer and whether to
secure the ends of justice, it is appropriate that
criminal case is put to an end and if the answer to
the above question(s) is in the affirmative, the
High Court shall be well within its jurisdiction to
quash the criminal proceedings."
(emphasis supplied)
6. In Parbatbhai Aahir (supra), a bench of three Hon‟ble
Judges of the Supreme Court reiterated the law relating to the
exercise of inherent power of the High Court under Section 482
Cr. PC for putting an end to the criminal action, taking note,
inter alia, of rulings in Gian Singh (supra) and Narinder Singh
(supra), summarising it thus :
"16. The broad principles which emerge from the
precedents on the subject, may be summarised in the
following propositions :
16.1 Section 482 preserves the inherent
powers of the High Court to prevent an
abuse of the process of any court or to
secure the ends of justice. The provision
does not confer new powers. It only
recognises and preserves powers which
inhere in the High Court.
16.2 The invocation of the jurisdiction of the
High Court to quash a First Information
Report or a criminal proceeding on the
ground that a settlement has been arrived at
between the offender and the victim is not
the same as the invocation of jurisdiction
for the purpose of compounding an offence.
While compounding an offence, the power
of the court is governed by the provisions
of Section 320 of the Code of Criminal
Procedure, 1973. The power to quash
under Section 482 is attracted even if the
offence is non-compoundable.
16.3 In forming an opinion whether a
criminal proceeding or complaint should be
quashed in exercise of its jurisdiction
under Section 482, the High Court must
evaluate whether the ends of justice would
justify the exercise of the inherent power.
16.4 While the inherent power of the High
Court has a wide ambit and plenitude it has
to be exercised (i) to secure the ends of
justice, or (ii) to prevent an abuse of the
process of any court.
16.5 The decision as to whether a complaint
or First Information Report should be
quashed on the ground that the offender and
victim have settled the dispute, revolves
ultimately on the facts and circumstances of
each case and no exhaustive elaboration of
principles can be formulated.
16.6 In the exercise of the power
under Section 482 and while dealing with a
plea that the dispute has been settled, the
High Court must have due regard to the
nature and gravity of the offence. Heinous
and serious offences involving mental
depravity or offences such as murder, rape
and dacoity cannot appropriately be
quashed though the victim or the family of
the victim have settled the dispute. Such
offences are, truly speaking, not private in
nature but have a serious impact upon
society. The decision to continue with the
trial in such cases is founded on the
overriding element of public interest in
punishing persons for serious offences.
16.7 As distinguished from serious offences,
there may be criminal cases which have an
overwhelming or predominant element of a
civil dispute. They stand on a distinct
footing in so far as the exercise of the
inherent power to quash is concerned.
16.8 Criminal cases involving offences
which arise from commercial, financial,
mercantile, partnership or similar
transactions with an essentially civil flavour
may in appropriate situations fall for
quashing where parties have settled the
dispute.
16.9 In such a case, the High Court may
quash the criminal proceeding if in view of
the compromise between the disputants, the
possibility of a conviction is remote and the
continuation of a criminal proceeding
would cause oppression and prejudice; and
16.10 There is yet an exception to the
principle set out in propositions 16.8 and
16.9 above. Economic offences involving the
financial and economic well-being of the
state have implications which lie beyond the
domain of a mere dispute between private
disputants. The High Court would be
justified in declining to quash where the
offender is involved in an activity akin to a
financial or economic fraud or
misdemeanour. The consequences of the act
complained of upon the financial or
economic system will weigh in the balance".
(emphasis supplied)
7. It is essential that before the court proceeds to examine
the question as to whether the present is a fit case for the
criminal proceedings to be brought to an end on the basis of
settlement, the background facts and the offences which appear
to have been committed are taken note of.
8. The status report which has been filed by the respondent
/ State reveals that the investigation into the FIR has already
been concluded and a report under Section 173 Cr. PC has been
presented in the appropriate forum - Juvenile Justice Board in
the case of the first petitioner - seeking prosecution (inquiry)
for the offences under Sections 279, 337, 304-A IPC and for
offences under Section 4 read with Section 181 and Section
128 read with Section 177 of Motor Vehicles Act, 1988 against
him. Simultaneously, a kalandara was presented in the court
of the Metropolitan Magistrate against the second petitioner
seeking his prosecution for the offences punishable under
Sections 5 read with Section 180 and Section 146 read with
Section 196 of the Motor Vehicles Act, 1988.
9. The background facts, as may be culled out from the said
status report and copies of the FIR and kalandara which have
been submitted, would show that it is the case of the
prosecution that the second petitioner is the registered owner of
the motorcycle bearing registration no.DL-10S-4523, make
Yamaha ("the motorcycle", for short), the first petitioner, aged
about 13 years at the relevant point of time, being his son. No
insurance policy covering the third party risk is stated to have
been taken out by the second petitioner in respect of the motor
cycle for the relevant period. The first petitioner, being a
minor, was not entitled to and was not holding a valid driving
licence. It is the case of the prosecution that on 25.09.1996 at
about 5.15 a.m. the first petitioner had been permitted by his
father (second petitioner) to take the motorcycle out on a public
road. The motorcycle was allegedly driven by the first
petitioner in a rash or negligent manner, he having carried
along, on the pillion, two boys, they being 14 years old
Abhishek, son of the second respondent and 15 years old
Vishal (third respondent). There is evidence available,
including in the form of statement of Vishal that the
motorcycle was driven at high speed in a rash or negligent
manner over Mahipalpur Flyover. The motorcycle went out of
control of the first petitioner (rider) and slipped on the road
resulting in all the three persons travelling thereon falling
down, each suffering injuries. When they were taken to the
hospital, Abhishek, the 14 years old son of the second
respondent, was declared brought dead. The evidence gathered
is stated to also show that the motorcycle was taken out by the
first petitioner within the knowledge of his father (second
petitioner), he knowing full well that the first petitioner was
neither expected to drive such a vehicle nor had the authority in
law to do so in absence of the driving licence.
10. The accusations for offences punishable under Sections
279, 304-A, 337 IPC pertain to the acts of commission and
omission on the part of the first petitioner qua the motorcycle
and the manner of driving on the public road. The charge for
offences under Motor Vehicles Act as laid out against each of
the petitioners arise out of the absence of the driving licence in
the name of the first petitioner and also absence of a valid
insurance cover in gross breach of the law to that effect.
11. It does appear that the parents of deceased Abhishek
have entered into a compromise qua the death with the
petitioner, the terms of settlement indicating payment of money
in lieu of he agreeing to have the proceedings in the criminal
case quashed. It is stated that the mother of the third
respondent (injured boy) has also given her no objection by
submitting her affidavit. The affidavit which has been
submitted (as Annexure „D‟), however, is in the name of Smt.
Bala wife of Sh. Rajesh. Strangely, in the memo of parties, the
name of the mother is given as Asha wife of Rajesh.
12. It is clear from the above that the offences involved in
the case do not pertain to the category of offences which have
"civil flavour" as referred to in the decisions in Narinder Singh
(supra) and Parbatbhai Aahir (supra). It may be that these
offences do not involve the element of "mental depravity" for
which offences like rape were set out as illustration in the
above mentioned rulings of the Supreme Court. It is stated that
the father of the deceased child and mother of the injured boy
are ready to bury the hatchet. However, the crucial question
which falls for consideration is as to whether the offences
involved here are such as can be described as non-serious or
not grave having no impact on the society or in the nature of a
"mere dispute between private disputants". In the opinion of
this court, the answer to this question must be in the negative.
13. The prime offence leading to the serious consequences
for the two victims is constituted by the act on the part of the
first petitioner who took out the motorcycle on a public way,
without the authority of law - unfortunately with the tacit
consent of his complicit father, who is the registered owner of
the vehicle - and then using it for rash driving, the gravamen of
the accusations sought to be laid against him, by virtue of
Section 279 IPC, being that by such acts he had "endanger(ed)
human life". The offence under Section 304-A IPC is the
direct fall out of the first said offence that occurred on account
of the motorcycle skidding, it having gone out of control of the
first petitioner due to rash driving on a public way.
14. Expounding on the issue of culpable negligence and
rashness in the context of similarly placed case of motor
vehicular fatality, the Supreme Court in Rathnashalvan v. State
of Karnataka (2007) 3 SCC 474 observed thus :
7. Section 304-A 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 304-A. 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.
[
(emphasis supplied)
15. Not very long ago, in Dalbir Singh Vs. State of Haryana,
(2000) 5 SCC 82, dealing with the question of sentence, the
Supreme Court laid emphasis on "deterrence" in such offences
by observing :-
"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"
(emphasis supplied)
16. Laying down the policy of the court vis-à-vis cases of
death by rash or negligent act (of driving), the court in Dalbir
Singh (supra) ruled thus :-
"13... 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."
(emphasis supplied)
17. In Rathnashalvan (supra), the gravity of and alarming
rise in the malaise of fatal accidents in India as indeed the
devastating consequences flowing therefrom was brought out
as under :-
"12. The editorial under the heading "Road Traffic
Injuries & Fatalities in India -- A Modern Epidemic"
in Indian J. Med. Res. 123, January 2006 contains
some interesting observations. The relevant portions
read as follows:
"The United Nations General Assembly adopted a
resolution on road safety on 26-10-2005 which
invites Member States to implement the
recommendations of the World Report on Road
Traffic Injury Prevention; to participate in the First
United Nations Global Road Safety Week; and to
recognise the third Sunday in November of every
year as the World Day of Remembrance for Road
Traffic Victims. This resolution follows the
publication of The World Report on Road Traffic
Injury Prevention by the World Health
Organisation in 2004. This report highlights the
fact that all over the world working age people are
more likely to suffer hospitalisation, permanent
disability and death due to road traffic injuries than
most other diseases. The situation in India is not
very different.
About 82,000 persons were killed on Indian roads
in 2002. Official statistics regarding serious
injuries are not reliable as they underestimate the
actual number, but it is estimated that the number
of people hospitalised may be 15-20 times the
number killed. In a do-nothing scenario, it is
possible that India will have 1,20,000-1,30,000
road traffic fatalities in the year 2008 and possibly
1,50,000-1,75,000 in 2015. Our vision should aim
at reducing the fatalities to less than 1,00,000 in the
short term (2008) and less than 70,000 in the long
term (2015)."
(emphasis supplied)
18. The above grave scenario was highlighted again in State
of Karnataka v. Muralidhar (2009) 4 SCC 463. In Alister
Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648
taking note, inter alia, of the observations in Dalbir Singh
(supra), and other previous decisions, to highlight the gravity
of the offences involved here, the Supreme Court made out a
strong case for the offence (of death by negligence) under
Section 304-A IPC to be visited by a more stringent
punishment. The view in Alister Anthony Pareira (supra) was
reiterated in Ravi Kapoor Vs. State of Rajasthan, (2012) 9 SCC
284 and, yet again, in Guru Basavaraj alias Benne Settappa
Vs. State of Karnataka, (2012) 8 SCC 734. Infact, lenient view
in such matters was frowned upon in State of Punjab Vs.
Balwinder Singh and Ors., (2012) 2 SCC 182.
19. The offence of rash driving of a motor vehicle on a
public road is not directed against any specific individual. It
exposes other users of the road - citizens in general - to
wanton risk to their life, limb or property. The rising fatalities
on public roads bring havoc to the victims, or their kith or kin,
and create additional burden on the State and the society at
large. Untimely loss of a precious human life not only brings
immeasurable pain and suffering to the family that is left
behind but, at times, loss of the bread earner resultantly
throwing those dependent on him virtually on the road or at the
mercy of doles of the civil society or State. As observed by the
Supreme Court in State of Punjab vs. Saurabh Bakshi, (2015) 5
SCC 182, "(s)uch a crime blights not only the lives of the
victims but of many others around them". Recourse to the
remedy of accident claim under the law is no solace. After-all,
the legal process invariably takes time to deliver, such
litigation being long winding and, at times, uncertain,
particularly in cases where there is absence of valid insurance
cover against third party risk. If the victim somehow survives
with injuries, the trauma or aftermath of hurt is also not fully
compensatable in terms of money.
20. We are a society wedded to the ethos of "rule of law".
The Constitution of India guarantees to every person on this
soil the fundamental right to protection of life (Article 21).
When a person moves on the public road in exercise of his
fundamental freedom to move, he legitimately expects the
State to ensure that all others using the public space or way
respect his right to do so without he being put to harm. It is the
obligation of the State to ensure enforcement of strict discipline
of the law. If such rights are breached, there is corresponding
obligation on the court to ensure that consequences flowing
from law follow.
21. Unlike certain other jurisdictions, our jurisprudence does
not adopt the policy of Islamic law principle of "blood money"
(Diyat) as the answer to every wrongdoing. On the contrary,
the Supreme Court has ruled that in striking the balance to take
care of the "cry of the society" in grave crimes, "(m)oney
cannot be the oasis" [Sumer Singh vs. Surajbhan Singh (2014)
7 SCC 323]. Against the reality that number of such cases of
rash or negligent acts causing mayhem like death or grievous
hurt (or permanent disability) have only been escalating over
the years, allowing a lid to be put on the criminal prosecution
on account of "settlement" into which the victim is persuaded
to enter, in his or her anxiety, to receive some recompense,
would erode the policy of the court to maintain the "deterrent
element", such latitude being a result of "misplaced sympathy",
having the potency to convey the undesirable impression that
driving can be permitted to be a matter of frivolous "frolic".
22. A case of such nature cannot be treated as merely a
private dispute between two individuals - not the least for this
court to exercise its inherent power to inhibit further judicial
process. The jurisdiction under Section 482 Cr.PC, though
couched in terms of "power" is actually a responsibility which
has to be discharged carefully bearing in mind the guiding
principles and to "secure the ends of justice" in which exercise
societal interest must always be paramount. The liberal
attitude in quashing such cases as of death or serious hurt due
to rash or negligent acts would be, borrowing the expression
from Muralidhar (supra), "result wise counter productive in
the long run and against societal interest" and be in the teeth
of the guidelines declared in Parbatbhai Aahir (supra).
23. In above view, the approach in the earlier decisions of
this court, and some other High Courts, cited by the petitioners
does not commend itself to this court.
24. A case of fatal accident involving rash driving by a
minor, his parent being almost a willing abettor, is grossly
grave and serious in nature. The fact that the motorcycle was
not covered by an insurance policy against risk to the third
parties only adds to the gravity. The inquiry against the first
petitioner, and the prosecution of the second petitioner, in these
circumstances, cannot by any reasoning, be described, as abuse
of the law. It is clear upon bare perusal of the record that the
case is not likely to fail merely on account of possible non-
cooperation of the second or third respondents in as much as
the State relies upon evidence which is available dehors their
versions.
25. Following the above noted principles, this court is
persuaded not to exercise the inherent power under Section 482
Cr. P.C. so as to quash the criminal action against the second
and third respondents.
26. For the foregoing reasons, this court declines to grant the
relief prayed for. The petition and the applications filed
therewith are dismissed.
R.K.GAUBA, J.
SEPTEMBER 05, 2018
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