K Rajapandian vs State Of Nct Of Delhi
2022 Latest Caselaw 1352 Del

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                      IN THE HIGH            COURT OF DELHI AT NEW DELHI

                                                            Order reserved on:        29.04.2022
                                                            Order delivered on:       06.05.2022
                      +      BAIL APPLN. 812/2022

                             K RAJAPANDIAN                                           ..... Petitioner
                                                Through:    Mr.Siddharth Luthra, Sr. Advocate
                                                            with Mr.Rahul Gupta, Mr.Shekhar
                                                            Gupta, Mr.Arav Kapoor, Mr.J.P.
                                                            Aggarwal,     Mr.Nitin      Saluja,
                                                            Ms.Ayushi    Nagar,    Ms.Priyanka
                                                            Prasanth, Ms.Sheezan Hashmi and
                                                            Mr.Akshat Kumar, Advocates.
                                                versus
                             STATE OF NCT OF DELHI                                 ..... Respondent
                                                Through:    Ms.Meenakshi Chauhan, APP for
                                                            State.
                                                            Mr.Tanvir Ahmed Mir, Mr.Randeep
                                                            Sachdeva,    Mr.Shivaang   Gupta,
                                                            Mr.Fahad Khan, Mr.Dhruv Pande and
                                                            Mr.Naman Aggarwal, Advocates for
                                                            complainant.

                      CORAM:
                      HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA
                                                         ORDER

ANOOP KUMAR MENDIRATTA, J.

1. Petitioner seeks bail under Section 439 read with Section 482 of Cr.PC

in FIR No. 67/2022 dated 09.02.2022 registered at Police Station Greater

Signature Not Verified Digitally Signed

By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42 Kailash. Initially, the FIR was registered under Sections 279/338 IPC and

subsequently Sections 307/308 IPC have also been invoked.

2. In brief, the FIR was registered on 09.02.2022 at 0045 hours with

reference to the alleged incident which occurred on 08.02.2022 about 17:15

hours, on the statement of one Rampal Negi. He alleged that he had been

working as a driver in B-92, Greater Kailash-I with one Bal Gopal Mandelia.

On 08.02.2020 about 05:15 PM while he was standing on the main road

along with other drivers namely Laxman and Jaswant, injured Anant Vijay

Mandelia came from his house and started walking on the main road. In the

meanwhile, he saw a yellow car coming from the direction of Ikhaya Hotel,

Greater Kailash-I, B Block at a very high speed and driven in zigzag manner

which hit Anant Vijay Mandelia who fell on the bonnet of the car. However,

the car did not stop and after travelling 100 meters, sudden brakes were

applied on which Anant Vijay Mandelia fell on the road from the bonnet and

the driver fled away. The registration number of the offending car was

further stated to be DL12-CU 6969. FIR was accordingly registered under

Sections 279/338 IPC.

3. Learned APP for the State contends that during the course of

investigation, CCTV cameras installed near the place of incident were

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42 examined and it was seen that the injured had signaled the offending vehicle

to stop but the driver/accused hit the injured. Due to impact of over speeding

car, the injured fell on the bonnet but the accused failed to stop and carried

the injured up to 100-150 meters. The father of the petitioner is also alleged

to be seen sitting on the front passenger seat along with the petitioner when

the car was later on parked. The disclosure statement of the petitioner, who is

student aged 19 years is also stated to have been recorded wherein he

disclosed his passion to drive fast. It is also stated that the accused used to

make videos of speedometer and placed on WhatsApp status. The

application has been vehemently opposed on the ground that the injured was

hit deliberately with an intention to kill and was dragged up to 100-150

meters causing grievous injuries.

4. The bail application is also vehemently opposed by the learned

counsel for the complainant and reliance is placed upon Paras Arora vs.

State of UT, 2021 SCC Online P & H 1629, Rohit Sharma vs. State of NCT

of Delhi, 2021 SCC Online Delhi 4490, Naginbhai Chandubhai Solanki vs.

State of Gujarat, R/CR.MA/6079/2018, Sukhvinder Singh vs. State of

Haryana, 2005 SCC Online P & H 953, Sanjay Chandra vs. CBI, (2012) 1

SCC 40 and Suleman Rehiman Mulani and Another vs. State, AIR 1968

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42 SC 829, in support of the contentions.

5. On the other hand, Shri Siddharth Luthra, learned Senior Advocate for

the petitioner submits that as seen in the CCTV footage, a person is seen to

be standing firmly in the middle of the road for stopping the car and the

driver of the car swerved to his right as an auto rickshaw passed ahead from

the left side of the vehicle. It is further submitted that only offence under

Sections 279/338 IPC is prima facie disclosed and Sections 307/308 IPC

have been wrongly invoked. It is urged that intention to kill could not be

deciphered merely because the injured was dragged for about 100 meters on

the bonnet of the car. It is also contended that the petitioner has clean past

antecedents and is a second year law student pursuing BBA LLB from IILM

university. The petitioner is further stated to be not required for the purpose

of investigation. The offences under Sections 279/338 are stated to be

bailable. Reliance is further placed upon : Paras Arora vs. State of UT

2021 SCC Online P & H 1629; Rohit Sharma vs. State of NCT of Delhi

2021 SCCC Online Delhi 4490; Naginbhai Chandubhai Solanki vs. State

of Gujart R/CR.MA/6079/2018; Sukhvinder Singh vs. State of Haryana

2005 SCC Online P & H 953; Sanjay Chandra vs. CBI (2012) 1 SCC 40;

Suleman Rehiman Mulani and Another vs. State AIR 1968 SC 829.

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42

6. I have given considered thought to the contentions raised. The factual

and legal position with reference to the judgments relied by the complainant,

may next be noticed.

(i) In Atul Bhiduri Vs. State, NCT of Delhi (2021) SCC Online Del

3130, while the petitioner was escaping from the spot along with co-accused

Kuldeep Vidhuri in his BMW car, Ct. Jitender tried to stop him, but the

petitioner ran over Ct. Jitender and crushed his both legs as he was not able

to save himself from the charging car. The BMW car was seized after it had

rammed a juice corner, namkeen and beer bottles were found lying in the car.

FIR was registered under Section 279/186/352/352/307/427/34 of IPC.

Considering the aforesaid circumstances, wherein the law enforcing agencies

were at the receiving end, the application for anticipatory bail was dismissed.

The orders passed by the High Court were not interfered in Special Leave to

Appeal (Crl.) No. 2626/2021 and the petitioner was directed to surrender

before the concerned Court and apply for regular bail. It may be noticed that

the case was for anticipatory bail.

(ii) In Sabeer Ahmad Bage Vs. State of Punjab in CRM-M-20223 (O &

M) decided on 25.07.2011, complainant reported the theft of his car parked

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42 outside the gate of his house. The petitioner therein was found to be rashly

driving the aforesaid car and when the police patrolling party signaled him to

slow down his car, he rashly drove the car and tried to run over the police

party with intention to kill them. The car was subsequently found abandoned

and the petitioner was identified on the basis of documents recovered from

the car.

The pre-arrest bail was declined since the petitioner had been

absconding since long and the proceedings for declaring him Proclaimed

Offender had been initiated.

(iii) In Atiq Ahmad Vs. State of UP in bail application No. 141/2018

decided by Sessions Judge, Gautam Budh Nagar, accused allegedly hit the

deceased who was going on his motorcycle and the deceased was trapped

under the vehicle. However, the accused did not stop his vehicle and dragged

the victim for 16 kilometers and after stopping for a while, the accused fled.

The dead body was found in the CCTV footage of toll plaza.

Under the aforesaid circumstances, the bail application was dismissed.

(iv) In State V. Sanjeev Nanda, (2012) 8 SCC 450, Six persons died and

one suffered injuries as a result of high speed driving by respondent under

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42 the influence of liquor in wee hours. The driver fled from the spot without

caring for the victims. The ld. Trial Court convicted the respondent driver

under Section 304-II IPC for the death caused in the motor vehicle accident

by accused, in a state of drunkenness. However, the High Court altered the

conviction to under Section 304-A IPC. The Supreme Court granted Special

Leave to Appeal on a limited issue namely on the applicability of Section

304 II or Section 304-A IPC. The appeal was accepted holding that the

respondent driver was having requisite knowledge of the consequences of

the act under Section 304 II of IPC as distinguished from rash and negligent

act under Section 304-A IPC . However, the jail sentence already served was

not enhanced. Further directions were made for depositing Rs.50 lacs with

Central Government for providing compensation to victims in motor

accident cases where drivers/owners of vehicles are not traceable and to

render community service for two years.

(v) In Vismay Amitbhai Shah Vs. State of Gujarat, AIR 2005 SC 359, it

was alleged that applicant drove his car at high speed in the city area and hit

initially one Accent car and then motorcycle of victims and thereafter dashed

his car with road side tree. While driving the vehicle, the applicant caused

death of two persons who were riding on motorcycle and after committing

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42 such accident ran away from the place.

In the facts and circumstances, it was held that evidence on record

categorically proved the involvement of the accused in commission of crime

and as such there is prima facie evidence against him for framing the charges

as levied in the charge-sheet.

(vi) In Jagjeet Singh & Ors. Vs. Ashish Mishra @ Monu & Anr. Criminal

Appeal No.632/2022, when the farmers were returning to their homes after

their protest was over, the respondent accused along with his associates who

were in the aforesaid three vehicles, allegedly drove into the crowd of

returning farmers and hit them with an intention to kill. Resultantly, many

farmers and other persons were crushed by the vehicles. Farmers therein

suffered injuries in the accident.

In the facts and circumstances, it was observed that victims had been denied

fair and effective hearing at the time of granting bail. The observations in

Kanwar Singh Meena v. State of Rajasthan, (2012) 12 SCC 180 were

reiterated that at the stage of granting of bail an elaborate examination of

evidence and detailed reasons touching the merits of case which may

prejudice either of the parties should be avoided and the court has to only

observe as to whether there is prima facie case against the accused. Also the

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42 principles to be kept in consideration while deciding application of bail as

observed in Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 1

SCC 496 and affirmed & restated in Neeru Yadav v. State of U.P & Anr,

(2014) 16 SCC 508, Anil Kumar Yadav v. State(NCT of Delhi) & Anr.,

(2018) 12 SCC 129 and Mahipal v. Rajesh Kumar & Anr. , (2020) 2 SCC

118 were reiterated.

Further, considering the cumulative facts and circumstances in the

case, the order on bail passed by the learned High Court was set aside and

bail bonds of respondent were cancelled as observed in Para 41 of the

judgment.

"41. We are, thus, of the view that this Court on account of the

factors like (i) irrelevant considerations having impacted the

impugned order granting bail; (ii) the High Court exceeding its

jurisdiction by touching upon the merits of the case; (iii) denial of

victims' right to participate in the proceedings; and (iv) the tearing

hurry shown by the High Court in entertaining or granting bail to

the respondent/accused; can rightfully cancel the bail, without

depriving the Respondent Accused of his legitimate right to seek

enlargement on bail on relevant considerations."

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42

7. It may now be appropriate at this stage to refer to the judgments cited

and relied on behalf of the petitioner.

(i) In Paras Arora v. State of U.T. Chandigarh (supra), it was alleged

that on 10.04.2021 while Constable Parvesh along with other police officials

was deployed at Naka (barricade) in Sector-20, Chandigarh, one car bearing

registration No. CG-01-BX-7865 came at high spped. When ASI Ramesh

Chander signaled to stop the car, its driver instead drove it towards him. ASI

Ramesh Chander stepped backward and yet the driver bumped the car into

him with an intention to kill. Due to the incident, ASI Ramesh Chander was

tossed 3-4 feet in the air, fell down and received multiple injuries. The driver

of the car then escaped from the place of occurrence and was later on,

arrested.

Having considered the rival contentions, the Court held as under:-

"10. After hearing rival contentions as noted aforesaid, I am of the view that given the antecedents of the petitioner having no crime history who is of young age of 20 years, being on cross roads of his career and having already undergone incarceration for 4 months, no useful purpose will be served by keeping the petitioner in further preventive custody.

11. Since the investigation is over and no further custodial interrogation of the petitioner is required. Challan has already been

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42 presented and the case is now fixed for prosecution evidence. Prosecution witnesses are all officials and there is no likelihood of them being influenced, in case the petitioner is granted concession of bail. Given the family background of the petitioner, since both his parents have been/are in government service there is no apprehension of absconding of the petitioner, if released on bail."

(ii) In Rohit Sharma v. State NCT of Delhi (supra), it was alleged

that on 22.06.2021, Head Constable Vinod along with ASI Vishram Singh

and Constable Anup were present on routine checking at RGC-10 traffic

circle, Harinagar Ghanta Ghar. ASI Vishram Singh and Constable Anup

were stopping the vehicles and the complainant was given signal to stop the

vehicle. At the aforesaid time, one white coloured car, having tinted glasses,

driven by the petitioner came towards them from red light of Junk Market. It

is alleged that driver initially slowed down the car but suddenly sped away,

as a result of which, the car hit ASI Vishram Singh and he fell on the side of

the road. Constable Anup somehow saved himself by moving on to the side.

Further the complainant tried to stop the car from front and jumped on the

bonnet but the petitioner did not stop the car. The complainant got hold of

the wipers of the car and finally at Jail road, the petitioner applied brakes as

another car was coming from the opposite side and the complainant fell

down from the car. Having noticed the principles for grant of bail including

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42 observations in Gurcharan Singh Vs. State (Delhi Administration) (1978) 1

SCC 118, the petitioner was admitted to bail.

(iii) In Naginbhai Chandubhai Solanki v. State of Gujarat (supra), the

case of the Prosecution was that police had an information that the applicants

were to pass through a particular route in a Brezza Car carrying foreign

liquor. The police on spotting the car overtook it and called out the driver of

the car. However, the driver of the car dashed his car against the car of the

complainant and thereafter fled since the car got struck. In the process the

police officer after getting down got injured. Section 307 IPC was

accordingly invoked in the aforesaid case. The question for consideration

before the Hon'ble Court was whether investigating agency could have filed

the charge-sheet for offence punishable under Section 307 IPC. Considering

the facts and circumstances, it was held that none of the ingredients to

constitute an offence under Section 307 IPC are spelt out. It was further

observed in para 19 as follows:

"In the present case, the police officer concerned sustained multiple injuries on the left hand and on the base of the nose. These injuries were suffered by the witnesses concerned on account of the attempt on his part to prevent the applicants to run away by accelerating their car. The attempt on the part of the applicants was to see that they are not arrested. By any

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42 stretch of imagination, it cannot be said that the act of the applicants was done with an intention or knowledge and under such circumstances, if they, by their act, caused death, they would be guilty of murder."

Accordingly, it was held that Section 307 IPC could not have been

invoked and was ordered to be deleted from the chargesheet.

(iv) In Sukhvinder Singh v. State of Haryana (supra), it was held that the

act of accelerating the speed of the truck in an effort to escape at night time

when the front lights of vehicle were on and the statement of police

witnesses that in this way an attempt was made to run over them will not

possibly bring that act to be with such intention or knowledge and under

such circumstances, that if by that act death is caused, then offender will be

guilty of murder, since the act is to scare the police party so that they give

way to the truck to make its escape. Under these circumstances, it was held

that this was not a case for the offence under Section 307 IPC.

(v) In Sanjay Chandra v. Central Bureau of Investigation (supra),

relevant considerations for grant of bail were noticed. It was observed in

Para 40 as under:

"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

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42 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

purposes of bail in a criminal case are 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 thereon whenever his presence is

required."

(vi) In Suleman Rehiman Mulani & Another (supra), it was alleged that

jeep was driven by appellant No. 1 and on the way the jeep struck one Bapu

Babaji Bhiwarkar, as a result of which he sustained injuries. The appellants

put the injured in the jeep and brought back the jeep to Phaltan where they

approached a doctor for medical aid. However, the doctor refused to treat

the injured as it was a medico-legal case and asked them to take the injured

to a Government dispensary. The appellants instead of going to the

Government dispensary, drove to Malshiras. On the way, the injured died

and the appellants cremated his dead body. At the time of the incident,

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42 appellant No. 1 had only a learner's license and no person having a valid

license for driving was by his side. The principal question for consideration

before the Hon'ble Supreme Court was whether appellant No. 1 was rightly

convicted under Section 304-A IPC. It was further under consideration

whether driving a jeep on public road by a person, who does not know

driving and is consequently unable to control the vehicle, is a rash and

negligent act as contemplated under Section 304-A IPC. It was held by the

Supreme Court in para 12 that there is no presumption in law that a person

who possesses only a learner's license or possesses no license at all does not

know driving. For various reasons, not excluding sheer indifference, he

might not have taken a regular license. The prosecution evidence that

appellant No. 1 had driven the jeep to various places on the day previous to

the occurrence is a proof of the fact that he knew driving. There was no basis

for conclusion that it was a sheer stroke of good fortune that he did not meet

any accident on that day.

The Supreme Court for the reasons mentioned in the said case did not

agree with the Courts below that on the basis of facts, the first appellant

could have been held guilty under Sections 304-A IPC. Accordingly the

appeal was partly allowed. However, conviction under Section 3 read with

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42 Section 112 and Section 89 of the Motor Vehicles Act were upheld.

8. In the light of the judgments referred by both the counsel for the

complainant as well as the counsel for the petitioner, it may be observed that

intention or knowledge is a man's state of mind and are matters of inference

from the circumstances of the case. Each case has to be decided on its own

facts and intention may be gathered from the nature and consequences of the

act and attendant circumstances. In a case where negligence or rashness to

cause death or injury is apparent and nothing more, Sections 337/338 IPC or

Section 304-A IPC may be accordingly attracted. However, where rash and

negligent act is preceded with knowledge that such act is likely to cause

death or injury, Section 304-II or Sections 307/308 IPC may be attracted.

Further if such rash and negligent act is preceded with real intention on the

part of wrong doer to cause death, offence may be punishable under Section

302 IPC. As such, the presumption of intention is not a proposition of law

but it needs to be ascertained whether the mind is usually able to foresee

what are the natural consequences of his act.

9. Coming down to the facts of the present case, it may be noticed that

the petitioner at the time of unfortunate accident is stated to have been duly

accompanied by his father though the petitioner himself was not in

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42 possession of a driving license. The fact that accused had been earlier driving

the car though at high speeds, does indicate that he was well accustomed to

drive, though not in accordance with law since the license was never

obtained. The fact that the petitioner failed to stop the car on indication from

a distance of 14-15 yards and further drove for about 100 meters with injured

clung to the bonnet does not lead to a conclusive inference that injured was

hit with an intention to kill. At this stage, the matter only needs to be prima

facie seen for granting or declining of bail and whether an offence under

Sections 307/308 IPC is made out is best to be left to be decided by the ld.

Trial Court at the appropriate stage of consideration of framing of charge.

10. Among other circumstances, now, the factors to be borne in mind

while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the

accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

The object of bail is to secure the attendance of the accused at the trial and is

not to be withheld as a punishment. The possibility of evidence being

tempered or the witnesses being influenced has also to be kept in

perspective. One single circumstance, cannot be treated as a universal

validity or necessarily justifying the grant of refusal of bail which is largely

influenced with the nature/seriousness of offence.

11. The petitioner in this case has been languishing in jail for a period of

about two months. The investigation is over, custodial interrogation of the

petitioner is not required and the chargesheet has already been filed. No

purpose may be served by keeping the petitioner behind the bars who

happens to be a second year student of law aged about 19 years and has clean

past antecedents. The apprehension expressed that the witnesses may be

influenced can be duly looked into by imposing adequate conditions.

12. However, at this stage, it may be appropriate to notice that since the

petitioner was not in possession of a driving license, the injured may be

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42 faced with a long drawn litigation for compensation, as the liability may

ultimately fall on the driver/owner of the vehicle. The rights of the victim in

such circumstances need to be kept in perspective, as and when any orders

are passed on bail and adequate conditions can be imposed to provide some

relief to the victims and secure their interest at the stage of bail itself. The

right of a victim does not just merely extend to file an appeal or participate in

such proceedings but much more is required to be done in such cases of

accident in order to safeguard the rights of compensation of the victim, who

at times is left at mercy of God, even to manage the medical expenses, at his

or her end. The High Court or Sessions Courts at the stage of bail, in such

cases, u/s 439 of the Code of Criminal Procedure may impose appropriate

conditions as may be necessary in the facts and circumstances of the case.

13. Considering the facts and circumstances, the petitioner is admitted to bail

subject to furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty

Thousand) with one surety in the like amount to the satisfaction of the

learned Trial Court and subject to the following conditions:-

(i) The petitioner shall deposit a sum of Rs.10 lacs with the

Ld. Trial Court in an interest bearing fixed deposit in a

nationalized bank, which may be appropriately adjusted and

Signature Not Verified Digitally Signed

By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42 disbursed in the proceedings for compensation by Motor

Accident Claim Tribunal or in the present FIR, on conclusion of

trial, as offered by Ld. Counsel for petitioner.

(ii)The petitioner shall not leave India without the prior

permission of the concerned trial court;

(iii) The petitioner shall not indulge in any criminal activity or

any illegal activities during the bail period;

(iv) The petitioner shall not communicate with, or come into

contact with the prosecution witnesses, or any member of the

victim's family, or tamper with the evidence of the case.

Nothing stated herein shall tantamount to opinion on merits the case.

The application is accordingly disposed of.

(ANOOP KUMAR MENDIRATTA) JUDGE May 06, 2022/A

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By:DINESH CHANDRA Signing Date:06.05.2022 16:28:42