Karnataka High Court
Prathap Kumar G vs State Of Karnataka on 21 October, 2022
Bench: Suraj Govindaraj
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CRL.P No. 1133 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
®
CRIMINAL PETITION NO. 1133 OF 2019
BETWEEN:
PRATHAP KUMAR.G
S/O YELE GOVINDAPPA
AGED ABOUT 21 YEARS
# 83, 4TH CROSS, 2ND MAIN
KHBS LAYOUT, KURUBARAHALLI
BENGALURU - 560086
...PETITIONER
(BY SRI. M. SHASHIDHARA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY VIJAYANAGAR TRAFFIC P.S.
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU - 560001
2. DHIRAJ RAKHEJA
Digitally signed by S/O SUBHASH RAKHEJA
POORNIMA AGED ABOUT 40 YEARS
SHIVANNA R/AT NO 2, 3RD MAIN
Location: HIGH
COURT OF 1ST STAGE, K.H.B.S. LAYOUT
KARNATAKA NEAR PIPELINE ROAD
KURUBARAHALLI LAND MARK
RAJKUMAR STATUE
BENGALURU - 560086
... RESPONDENTS
(BY SRI. MAHESH SHETTY, HCGP FOR R1;
SMT. P. ANU CHENGAPPA, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C, PRAYING TO QUASH THE PROCEEDINGS IN CR.NO.21/2018
OF RESPONDENT VIJAYANAGAR POLICE REGISTERED ON THE BASIS
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OF OFFENCES PUNISHABLE UNDER SECTION 134(A & B) AND 187 OF
MOTOR VEHICLES ACT AND SECTION 279, 428 AND 429 OF IPC,
WHICH IS PENDING ON THE FILE OF HON'BLE METROPOLITAN
MAGISTRATE TRAFFIC COURT-II, AT BENGALURU IN
C.C.NO.5016/2018.
THIS CRIMINAL PETITION COMING ON FOR HEARING AND
HAVING BEEN RESERVED FOR ORDERS ON 22.08.2022, THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the
following reliefs:
"Wherefore, the above named petitioner most
respectfully prays this Hon'ble court be pleased to
quash the proceedings in Crime No.21/2018 of
respondent Vijayanagar Police registered on the basis
of offences punishable under section 134(A & B) and
187 of Motor Vehicles Act and Section 279, 428 and
429 of IPC, which is pending on the file of Hon'ble
Metropolitan Magistrate Traffic Court-II, at Bengaluru
in c.c.no.5016/2018, in the ends of justice".
2. On 24.02.2018, when the complainant's mother had
taken her pets for a walk as per her routine, a
Fortuner SUV vehicle hit one of the pet dogs. The
complainant's brother-in-law and sister took the pet
dog - Memphi to a Veterinary Clinic. But the pet dog
was declared dead. The incident having occurred
between 8.15 to 9.00 p.m. on 24th February 2018,
CRL.P No. 1133 of 2019
the complainant upon hearing the same from his
mother, had called the police helpline who sent two
policemen to the spot who verified what had
happened and thereafter the complainant registered
a complaint with the Vijayanagara Police Station in
Crime No.21/2018 against the driver of the Fortuner
car bearing Registration No.KA-02-MJ-5669 for
offences punishable under Section 134(A & B) and
187 of Motor Vehicles Act, 1988 (for short, M.V.Act)
and Sections 279, 428, 429 of IPC.
3. The investigating officer conducted the investigation
and filed a charge sheet against the petitioner for
offences under Section 134(A & B) and 187 of
M.V.Act, and Sections 279, 428, 429 of IPC. It is
aggrieved by the same that the petitioner is before
this Court seeking for the aforesaid reliefs.
4. The learned counsel for the petitioner would submit
that:
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4.1. The petitioner is innocent of any criminal
offence. There is no mens rea on part of the
petitioner to cause injury or harm to the pet
dog. The said dog being on the road while the
petitioner was driving has resulted in the
accident.
4.2. The offence under Section 429 of IPC could be
made out only in those cases where there is a
deliberate attempt by an accused committing
mischief which requires an animus to do
something. In the present case, the petitioner
having no intention or animus of either killing,
maiming or rendering useless the pet dog, no
offence under Section 429 of IPC can be said to
be made out.
4.3. the petitioner and owner of the pet are not
known to each other. The petitioner and the pet
dog were not known to each other. Therefore,
there was no enmity or any reason for the
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petitioner to have caused harm to the said pet
dog.
4.4. The accident has taken place in a public road.
The complainant has not averred or alleged any
particular grudge on part of the petitioner with
the owner of the dog. Hence, Section 428A of
IPC would also not be applicable.
4.5. As regards, the offence under Section 279 of
IPC, he submits that the same would apply only
in the case of an accident involving a human
being and does not apply to an accident
involving any animal, including a pet dog. As
such, no offence under Section 279 of IPC is
made out.
4.6. Similar is the submission in respect of the
offence under Section 134 of the Motor Vehicles
Act, which is not applicable to an animal. As
such, the charge sheet laid as regards the
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offences under the aforesaid provisions is
contrary to the applicable law.
4.7. In this regard, he relies upon the decision of
Allahabad High Court in the case of Pawan
Kumar Sharma vs. State of U.P1 more
particularly Para 11 which is reproduced
hereunder for easy reference:
11. On a reading of the impugned judgment and
the other documents on record it is apparent
that it was only accidental that the truck of the
applicant hit the bullock cart of the deceased as
a result of which the buffalo and the driver of the
bullock cart died. Another person, Pooran Singh,
who was sitting in the bullock cart also sustained
injuries. It was not the allegation in the first
information report that the accused had grudge
against him and that he intended to cause
wrongful loss or damage or likely to cause them
to the deceased or any person and there was no
such allegation either in the charge-sheet or was
this ingredient brought out in the statements of
the persons examined as eye-witnesses. The
conviction of the applicant for an offence under
Section 429 IPC cannot be sustained. The courts
below have committed manifest error of law in
convicting and sentencing the applicant under
Section 429 IPC for accident where the mens rea
of causing the loss is absent. Therefore, the
conviction of the applicant under Section 429 IPC
1996 Crl.L.J 369
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is not sustainable in the eye of law and is hereby
set aside.
4.8. Another decision of the Hon'ble Allahabad High
Court in the case of Majid Ali vs. State2 more
particularly Para 6, which is reproduced
hereunder for easy reference:
6. Section 429 will only apply in those cases
where there is a deliberate attempt on behalf of
the accused to commit a mischief. Commission
of a mischief involves an animus to do
something. Here the applicant had no intention
of either killing, poisoning, maiming or rendering
useless the mule. Therefore Sec. 429 either will
not apply.
4.9. The decision of Rajasthan High Court in the
case of State of Rajasthan vs. Nauratan
Mal3 More particularly Paras 13 and 14 thereof
which are reproduced hereunder for easy
reference:
13. So far as offence under Section 429, I.P.C. is
concerned, the intention is gist of the offence.
Section 429 will only apply in those cases where
there is deliberate attempt on behalf of the
accused to commit mischief. The commission of
Laws (All) 1956 1234
2002 Crl.L.J. 348
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mischief involves animus to do something.
Where the accused has no intention of either
killing or poisoning maiming or rendering useless
any of the animus mentioned in that section, this
section will not apply.
14. Since it is accident case and there is
nothing on record that the accused respondent
had any enmity with P.W. 1 Dagla Ram and if
the accident has taken place then it cannot be
said that any mischief was committed by the
accused respondent. It may further be stated
here that merely an accident has taken place on
public highway would not be sufficient to prove
the charge for offence under Section 429, I.P.C.
unless the evidence has been led that the
accused driving the vehicle had any grudge
against the complainant or had required
intention or knowledge in causing the accident.
Since it is a simple case of accident, therefore,
mens rea of causing the accident is absent and
in these circumstances, the findings of acquittal
for offence under Section 429, I.P.C. recorded by
the learned trial Magistrate are liable to be
confirmed one. For the reasons mentioned
above, the present State appeal is dismissed
after confirming the judgment and order dated
29-10-85 passed by the learned Civil Judge and
Addl. Chief Judicial Magistrate, Parbatsar in Cr.
Case No. 285/1985. Appeal dismissed.
4.10. The decision of Hon'ble Saurashtra High Court
in the case of Bhagwan Rana vs. State4 more
particularly Para 2, which is reproduced
hereunder for easy reference:
1953 Crl.L.J. 1350
CRL.P No. 1133 of 2019
2. The offence of mischief under Section 429 is
committed if the offender commits mischief by
killing, poisoning, maiming or rendering useless
any buffalo etc. Under Section 425, I.P.C. a
person is said to commit mischief with intent to
cause, or knowing that he is likely to cause,
wrongful loss to a person causes the destruction
of any A property. The existence of the requisite
intention or knowledge is therefore an essential
ingredient to the offence and the accused cannot
be convicted under Section 429, I.P.C. unless it
is shown that the act of killing etc., was with the
requisite intention or knowledge.
In this case, the buffalo was actually in the
applicant's field when he threw the stone at it. It
is true that his daughter was driving it away and
it would have been better if he had allowed her
to do so. But the applicant had a right to assist
his daughter and in throwing the stone at the
buffalo his intention was to protect hi3 property
from trespass rather than to cause any harm to
the animal. The stone which hit the buffalo has
not been produced and it is therefore impossible
to say that the applicant selected a particularly
heavy stone out of all proportion to the needs of
the occasion from which an inference of guilty
intent or knowledge can be made.
The learned Magistrate has quoted from the
decision in - Mahadeo v. Emperor AIR 1916 Nag
14 (A), in support of his order. The quotation
shows that the accused in that case had thrown
a stone at a cow maiming it 'after' he had driven
it out of his master's field. The learned Sessions
Judge has pointed out that in this case the
buffalo was actually in the field when the
applicant threw the stone and this fact
distinguishes it from the decision relied upon by
the learned Magistrate. We do not mean to say
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that a person can intentionally kill or maim an
animal trespassing upon his property. But he has
a right to use reasonable force to protect his
property against trespass so long as the trespass
continues, and it is not proved in this case that
the applicant used force in excess of the needs
of the occasion. We regret the unfortunate loss
of the buffalo but we agree with the learned
Sessions Judge's opinion that the offence under
Section 429 has not been established against the
applicant. The reference is therefore accepted
and the applicant's conviction is set aside. The
fine, if paid, is ordered to be refunded to the
applicant.
4.11. The decision of Rajastan High Court in the case
of Johri vs. State5 more particularly Paras 4
and 5, which are reproduced hereunder for
easy reference:
4. Section 429, I. P. C., necessitates three
things: (1) intention or knowledge of likelihood
to cause wrongful loss or damage to the public
or to any person, (2) causing the destruction of
some property or any change in it or in its
situation, and (3) such change must destroy or
diminish the property mentioned in the section
itself. In this case, evidence shows that the calf
died as a result of the stone falling upon it
accidentally. The question remains whether it
should be inferred from the circumstances of the
case that the accused had had the intention or
knowledge of likelihood of causing wrongful loss
AIR 1970 RAJ 203
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or damage to the public or to any person. There
is not an iota of evidence on the record from
which such an intention or knowledge can be
gathered. The only evidence is that the accused
wanted to throw stone towards Ratna and not
towards the calf with a view to cause wrongful
loss or damage to Ratna. Since the first and the
most important ingredient of the offence under
Section 429, I.P.C., is totally absent, the Court
below went wrong in holding that Section 429,
I.P.C., was applicable to this case.
5. In Arjun Singh v. The State. 1957 Raj LW
642 = (AIR 1958 Raj 347), it has been
observed by this Court:
"In order to prove an offence of mischief, it is
necessary for the prosecution to establish that
the accused had an intention or knowledge of
likelihood to cause wrongful loss or damage to
the public or to any person."
It has further been observed in this case that if
an animal is killed accidentally, whatever may be
the responsibility of the accused to compensate
its owner for the loss of property caused to him
in a Civil Court, it cannot be said with any
justification that he committed a criminal offence
under Section 429, I. P. C. A Division Bench of
the Saurashtra High Court consisting of Shah, C.
J. and Baxi, J., reported as Bhagwan v. State,
AIR 1953 Sau 158, has held that the offence of
mischief under Section 429, I. P. C., is
committed if the offender commits mischief by
killing, poisoning, maiming or rendering useless
any buffalo, etc. Under Section 425, I. P. C., a
person is said to commit mischief with intent to
cause or knowing that he is likely to cause
wrongful loss to a person causes the destruction
of any property. The existence of the requisite
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intention or knowledge is, therefore, an essential
-ingredient to the offence and the accused
cannot be convicted under Section 429, I.P.C.,
unless it is established that the act of killing,
etc., was with the requisite intention or
knowledge.
There is another relevant citation found in
Criminal Revision Case No. 434 of 1901 = 1 Weir
502, in the matter of Obammal, accused. In that
case the accused Obammal was convicted under
Section 429, I.P.C., and sentenced to pay a fine
of Rs. 20 or, in default, to undergo rigorous
imprisonment for 20 days. The mischief
consisted in throwing a stone at a young buffalo
and thereby causing its death. The stone was
thrown to drive the animal out of the backyard
and the animal after running some distance fell
down and died. The prosecution witnesses stated
that the accused threw a brick at the buffalo and
caused its death. There was, however, nothing
to show that the accused had in throwing the
stone, any intention to cause injury to the
animal or reasonable cause to suppose that loss
or damage was likely to be caused. The Madras
High Court held that in these circumstances the
conviction was wrong.
5. Per contra, Smt.Anu Chengappa, learned counsel for
the respondent would submit that:
5.1. The petitioner ought to know that the action
would have resulted in an accident which could
have grave consequence since the petitioner
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has driven the vehicle in a rash and negligent
manner.
5.2. The accident took place in a residential area
where it is a normal practice for people to go
for a walk along with their pets and if anyone
were driving a vehicle, they should be cautious
and careful and maintain a minimum speed so
as to be able to apply the brakes on the vehicle
if necessary. The petitioner ought to know that
in residential areas senior citizens would go for
a walk in the evening. They have slow reflexes,
no person should drive a vehicle at a fast
speed.
5.3. The mother of the complainant was aged 60
years at the time of the incident and was
walking with two dogs on the left side of the
road. The road being 30 feet wide, the
petitioner drove the vehicle at 60 kmph beyond
the stipulated speed limit, which resulted in the
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accident. If the petitioner was driving within the
speed limit and not over speeding, the accident
could have been avoided. The very fact that the
petitioner was driving beyond the permissible
speed limit would reflect the animus of the
petitioner to cause offence under Section 429 of
IPC.
5.4. The petitioner's mother narrowly escaped being
hit by the vehicle. The pet dog by name
Memphi was not just a pet dog but was a
member of the complainant's family and a
constant companion and gave a lot of solace to
the mother of the complainant. She being like a
parent to the pet, merely because the deceased
was a pet, the rule should not be different. If at
all, it was a human being who was hit by the
vehicle, which was over speeding, the Court
would take it differently.
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5.5. She submits that even animals have rights and
as such, the petitioner who has killed the pet
ought to be punished.
5.6. The investigation has taken into account the
statement of the witnesses and as such, the
same cannot be stated to be tainted. The
charge sheet having been laid, the petitioner is
required to stand trial. In this regard, she relies
upon the following decisions:
5.7. Animal Welfare Board of India v. A. Nagaraja6
more particularly Paras 55, 66, 68 and 72
which are reproduced hereunder for easy
reference:
55. As early as 1500-600 BC in Isha-Upanishads,
it is professed as follows:
"The universe along with its creatures belongs to
the land. No creature is superior to any other.
Human beings should not be above nature. Let no
one species encroach over the rights and
privileges of other species."
(2014) 7 SCC 547
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In our view, this is the culture and tradition of the
country, particularly the States of Tamil Nadu and
Maharashtra.
66. Rights guaranteed to the animals under
Sections 3, 11, etc. are only statutory rights. The
same have to be elevated to the status of
fundamental rights, as has been done by few
countries around the world, so as to secure their
honour and dignity. Rights and freedoms
guaranteed to the animals under Sections 3 and
11 have to be read along with Articles 51-A(g)
and (h) of the Constitution, which is the magna
carta of animal rights.
Humanism
68. Article 51-A(h) says that it shall be the duty
of every citizen to develop the scientific temper,
humanism and the spirit of inquiry and reform.
Particular emphasis has been made to the
expression "humanism" which has a number of
meanings, but increasingly designates as an
inclusive sensibility for our species. Humanism
also means, to understand benevolence,
compassion, mercy, etc. Citizens should,
therefore, develop a spirit of compassion and
humanism which is reflected in the Preamble of
the PCA Act as well as in Sections 3 and 11 of the
Act. To look after the welfare and well-being of
the animals and the duty to prevent the infliction
of pain or suffering on animals highlights the
principles of humanism in Article 51-A(h). Both
Articles 51-A(g) and (h) have to be read into the
PCA Act, especially into Section 3 and Section 11
of the PCA Act and be applied and enforced.
Right to life
72. Every species has a right to life and security,
subject to the law of the land, which includes
depriving its life, out of human necessity. Article
21 of the Constitution, while safeguarding the
rights of humans, protects life and the word "life"
has been given an expanded definition and any
disturbance from the basic environment which
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includes all forms of life, including animal life,
which are necessary for human life, fall within the
meaning of Article 21 of the Constitution. So far
as animals are concerned, in our view, "life"
means something more than mere survival or
existence or instrumental value for human
beings, but to lead a life with some intrinsic
worth, honour and dignity. Animals' well-being
and welfare have been statutorily recognised
under Sections 3 and 11 of the Act and the rights
framed under the Act. Right to live in a healthy
and clean atmosphere and right to get protection
from human beings against inflicting unnecessary
pain or suffering is a right guaranteed to the
animals under Sections 3 and 11 of the PCA Act
read with Article 51-A(g) of the Constitution.
Right to get food, shelter is also a guaranteed
right under Sections 3 and 11 of the PCA Act and
the Rules framed thereunder, especially when
they are domesticated. The right to dignity and
fair treatment is, therefore, not confined to
human beings alone, but to animals as well. The
right, not to be beaten, kicked, overridden,
overloaded is also a right recognised by Section
11 read with Section 3 of the PCA Act. Animals
also have a right against human beings not to be
tortured and against infliction of unnecessary pain
or suffering. Penalty for violation of those rights
are insignificant, since laws are made by humans.
Punishment prescribed in Section 11(1) is not
commensurate with the gravity of the offence,
hence being violated with impunity defeating the
very object and purpose of the Act, hence the
necessity of taking disciplinary action against
those officers who fail to discharge their duties to
safeguard the statutory rights of animals under
the PCA Act.
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5.8. State of Punjab v. Balwinder Singh7, more
particularly Paras 11, 12, 13 and 14 which are
reproduced hereunder for easy reference:
11. Even a decade ago, considering the galloping
trend in road accidents in India and its
devastating consequences, this Court in Dalbir
Singh v. State of Haryana [(2000) 5 SCC 82 :
2004 SCC (Cri) 1208] held that, while considering
the quantum of sentence to be imposed for the
offence of causing death by rash or negligent
driving of automobiles, one of the prime
considerations should be deterrence. A
professional driver should not take a chance
thinking that even if he is convicted, he would be
dealt with leniently by the court.
12. The following principles laid down in that
decision are very relevant: (Dalbir Singh case
[(2000) 5 SCC 82 : 2004 SCC (Cri) 1208] , SCC
pp. 84-85 & 87, paras 1 & 13)
"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.
***
(2012) 2 SCC 182
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13. Bearing in mind the galloping trend in road
accidents in India and the devastating
consequences visiting the victims and their
families, criminal courts cannot treat the nature
of the offence under Section 304-A IPC as
attracting the benevolent provisions of Section 4
of the Probation of Offenders Act. While
considering the quantum of sentence to be
imposed for the offence of causing death by rash
or negligent driving of automobiles, one of the
prime considerations should be deterrence. A
professional driver pedals the accelerator of the
automobile almost throughout his working hours.
He must constantly inform himself that he cannot
afford to have a single moment of laxity or
inattentiveness when his leg is on the pedal of a
vehicle in locomotion. 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."
The same principles have been reiterated in B.
Nagabhushanam v. State of Karnataka [(2008) 5
SCC 730 : (2008) 3 SCC (Cri) 61] .
13. It is settled law that sentencing must have a
policy of correction. If anyone has to become a
good driver, must have a better training in traffic
laws and moral responsibility with special
reference to the potential injury to human life and
limb. Considering the increased number of road
accidents, this Court, on several occasions, has
reminded the criminal courts dealing with the
offences relating to motor accidents that they
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cannot treat the nature of the offence under
Section 304-A IPC as attracting the benevolent
provisions of Section 4 of the Probation of
Offenders Act, 1958. We fully endorse the view
expressed by this Court in Dalbir Singh [(2000) 5
SCC 82 : 2004 SCC (Cri) 1208] .
14. While considering the quantum of sentence to
be imposed for the offence of causing death or
injury by rash and negligent driving of
automobiles, one of the prime considerations
should be deterrence. The persons driving motor
vehicles cannot and should not take a chance
thinking that even if he is convicted he would be
dealt with leniently by the court.
5.9. Ravi Kapur v. State of Rajasthan8, more
particularly Paras 12, 13, 14, 15, 20 and 21
which are reproduced hereunder for easy
reference:
(A) Rash and negligent driving
12. Rash and negligent driving has to be
examined in the light of the facts and
circumstances of a given case. It is a fact
incapable of being construed or seen in isolation.
It must be examined in light of the attendant
circumstances. A person who drives a vehicle on
the road is liable to be held responsible for the
act as well as for the result. It may not be always
possible to determine with reference to the speed
of a vehicle whether a person was driving rashly
and negligently. Both these acts presuppose an
abnormal conduct. Even when one is driving a
vehicle at a slow speed but recklessly and
negligently, it would amount to "rash and
negligent driving" within the meaning of the
language of Section 279 IPC. That is why the
(2012) 9 SCC 284
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legislature in its wisdom has used the words
"manner so rash or negligent as to endanger
human life". The preliminary conditions, thus, are
that (a) it is the manner in which the vehicle is
driven; (b) it be driven either rashly or
negligently; and (c) such rash or negligent driving
should be such as to endanger human life. Once
these ingredients are satisfied, the penalty
contemplated under Section 279 IPC is attracted.
13. "Negligence" means omission to do
something which a reasonable and prudent
person guided by the considerations which
ordinarily regulate human affairs would do or
doing something which a prudent and reasonable
person guided by similar considerations would not
do. Negligence is not an absolute term but is a
relative one; it is rather a comparative term. It is
difficult to state with precision any
mathematically exact formula by which
negligence or lack of it can be infallibly measured
in a given case. Whether there exists negligence
per se or the course of conduct amounts to
negligence will normally depend upon the
attending and surrounding facts and
circumstances which have to be taken into
consideration by the court. In a given case, even
not doing what one was ought to do can
constitute negligence.
14. The court has to adopt another parameter i.e.
"reasonable care" in determining the question of
negligence or contributory negligence. The
doctrine of reasonable care imposes an obligation
or a duty upon a person (for example a driver) to
care for the pedestrian on the road and this duty
attains a higher degree when the pedestrians
happen to be children of tender years. It is
axiomatic to say that while driving a vehicle on a
public way, there is an implicit duty cast on the
drivers to see that their driving does not
endanger the life of the right users of the road,
may be either vehicular users or pedestrians.
They are expected to take sufficient care to avoid
danger to others.
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15. The other principle that is pressed in aid by
the courts in such cases is the doctrine of res ipsa
loquitur. This doctrine serves two purposes -- one
that an accident may by its nature be more
consistent with its being caused by negligence for
which the opposite party is responsible than by
any other causes and that in such a case, the
mere fact of the accident is prima facie evidence
of such negligence. Secondly, it is to avoid
hardship in cases where the claimant is able to
prove the accident but cannot prove how the
accident occurred. The courts have also applied
the principle of res ipsa loquitur in cases where
no direct evidence was brought on record. The
Act itself contains a provision which concerns with
the consequences of driving dangerously alike the
provision in IPC that the vehicle is driven in a
manner dangerous to public life. Where a person
does such an offence he is punished as per the
provisions of Section 184 of the Act. The courts
have also taken the concept of "culpable
rashness" and "culpable negligence" into
consideration in cases of road accidents.
"Culpable rashness" is acting with the
consciousness that mischievous and illegal
consequences may follow but with the hope that
they will not and often with the belief that the
actor has taken sufficient precautions to prevent
their happening. The imputability arises from
acting despite consciousness (luxuria). "Culpable
negligence" is acting without the consciousness
that the illegal and mischievous effect will follow,
but in circumstances which show that the actor
has not exercised the caution incumbent upon
him and that if he had, he would have had the
consciousness. The imputability arises from the
neglect of civic duty of circumspection. In such a
case the mere fact of accident is prima facie
evidence of such negligence. This maxim
suggests that on the circumstances of a given
case the res speaks and is eloquent because the
facts stand unexplained, with the result that the
natural and reasonable inference from the facts,
not a conjectural inference, shows that the act is
attributable to some person's negligent conduct.
[Ref. Justice Rajesh Tandon's An Exhaustive
- 23 -
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Commentary on Motor Vehicles Act, 1988 (1st
Edn., 2010).]
(B) Attendant circumstances and inference
of rash and negligent driving
20 [Ed.: Para 20 corrected vide Official
Corrigendum No. F.3/Ed.B.J./53/2012 dated
5-9-2012.] . In light of the above, now we have
to examine if negligence in the case of an
accident can be gathered from the attendant
circumstances. We have already held that the
doctrine of res ipsa loquitur is equally applicable
to the cases of accident and not merely to the
civil jurisprudence. Thus, these principles can
equally be extended to criminal cases provided
the attendant circumstances and basic facts are
proved. It may also be noticed that either the
accident must be proved by proper and cogent
evidence or it should be an admitted fact before
this principle can be applied. This doctrine comes
to aid at a subsequent stage where it is not clear
as to how and due to whose negligence the
accident occurred. The factum of accident having
been established, the court with the aid of proper
evidence may take assistance of the attendant
circumstances and apply the doctrine of res ipsa
loquitur. The mere fact of occurrence of an
accident does not necessarily imply that it must
be owed to someone's negligence. In cases where
negligence is the primary cause, it may not
always be that direct evidence to prove it exists.
In such cases, the circumstantial evidence may
be adduced to prove negligence. Circumstantial
evidence consists of facts that necessarily point to
negligence as a logical conclusion rather than
providing an outright demonstration thereof.
Elements of this doctrine may be stated as:
• The event would not have occurred but for
someone's negligence.
• The evidence on record rules out the possibility
that actions of the victim or some third party
could be the reason behind the event.
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• The accused was negligent and owed a duty of
care towards the victim.
21. In Thakur Singh v. State of Punjab [(2003) 9
SCC 208 : 2004 SCC (Cri) 1183] the petitioner
drove a bus rashly and negligently with 41
passengers and while crossing a bridge, the bus
fell into the nearby canal resulting in death of all
the passengers. The Court applied the doctrine of
res ipsa loquitur since admittedly the petitioner
was driving the bus at the relevant time and it
was going over the bridge when it fell down. The
Court held as under: (SCC p. 209, para 4)
"4. It is admitted that the petitioner himself was
driving the vehicle at the relevant time. It is also
admitted that bus was driven over a bridge and
then it fell into canal. In such a situation the
doctrine of res ipsa loquitur comes into play and
the burden shifts on to the man who was in
control of the automobile to establish that the
accident did not happen on account of any
negligence on his part. He did not succeed in
showing that the accident happened due to
causes other than negligence on his part."
5.10. Prafulla Kumar Rout v. State of Orissa9,
more particularly Para 7, which is reproduced
hereunder for easy reference:
7. High speed is a relative term. A vehicle which
is driven in a congested road even at a speed of
30 k.ms., may constitute high speed, but driving
a vehicle at a speed higher than 30 k.ms. in on
open road may not be considered driving at high
speed. It would depend upon nature and situation
of road, concentration of pedestrians and
vehicular traffic on it and many such other
relevant factors. In the case at hand, vehicle
which was being driven on the National Highway,
1995 CRI. L.J. 1277
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caused accident in front of a school. It is
expected for a driver to be cautious and slow
down the vehicle, when nearing on educational
institution. Unshaken evidence of eye witnesses
shows that the vehicle was driven at a high speed
though no exact speed was indicated by them. A
responsible Revenue Officer (p.w. 13) is supposed
to know what is high speed compared to normal
speed. On consideration of evidence, courts below
have held that the vehicle was being driven at
very high speed. Added to the above, reappraisal
of evidence while exercising revisional power is
uncalled for, unless conclusions of the courts
below are perverse, unreasonable or of such
nature that no reasonable person can reach such
conclusion That does not appear to be the case
here. The courts below have rightly found the
accused guilty.
5.11. Shiv Dani Singh v. State of Bihar10, more
particularly Para 7, which is reproduced
hereunder for easy reference:
7. Apparently. PW-1, FW-2 and PW-6 are the
eye-witnesses and they are consistent in
deposing that the appellant assaulted Subodhan
Hembrom (de ceased) with lathi who was driving
the cart only because he could not stopped the
cart on the order of the appellant and then the
deceased fell down from the cart at that time.
Post mortem report clearly goes to indicate that
the deceased Subodhan Hembrom sustained
serious injuries on the right chest causing
fracture of 4th and 5th ribs with rupture on right
lung. Even if Subodhan Hembrom fell down and
came under the wheel of the said cart, which was
carrying rice, that was because of the assaulted
by the appellant.
2004 Cri LJ 338
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5.12. Mohd. Aynuddin alias Miyam vs. State of
A.P11., more particularly Paras 9 and 10, which
are reproduced hereunder for easy reference:
9. The principle of res ipsa loquitur is only a rule
of evidence to determine the onus of proof in
actions relating to negligence. The said principle
has application only when the nature of the
accident and the attending circumstances would
reasonably lead to the belief that in the absence
of negligence the accident would not have
occurred and that the thing which caused injury is
shown to have been under the management and
control of the alleged wrongdoer.
10. A rash act is primarily an overhasty act. It is
opposed to a deliberate act. Still a rash act can
be a deliberate act in the sense that it was done
without due care and caution. Culpable rashness
lies in running the risk of doing an act with
recklessness and with indifference as to the
consequences. Criminal negligence is the failure
to exercise duty with reasonable and proper care
and precaution guarding against injury to the
public generally or to any individual in particular.
It is the imperative duty of the driver of a vehicle
to adopt such reasonable and proper care and
precaution.
5.13. State of Karnataka v. M. Devendrappa12,
more particularly Paras 6, 8 and 9 which are
reproduced hereunder for easy reference:
6. Exercise of power under Section 482 of the
Code in a case of this nature is the exception and
2000 CRI.L.J 3508
(2002) 3 SCC 89
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not the rule. The section does not confer any new
powers on the High Court. It only saves the
inherent power which the Court possessed before
the enactment of the Code. It envisages three
circumstances under which the inherent
jurisdiction may be exercised, namely, (i) to give
effect to an order under the Code, (ii) to prevent
abuse of the process of court, and (iii) to
otherwise secure the ends of justice. It is neither
possible nor desirable to lay down any inflexible
rule which would govern the exercise of inherent
jurisdiction. No legislative enactment dealing with
procedure can provide for all cases that may
possibly arise. Courts, therefore, have inherent
powers apart from express provisions of law
which are necessary for proper discharge of
functions and duties imposed upon them by law.
That is the doctrine which finds expression in the
section which merely recognizes and preserves
inherent powers of the High Courts. All courts,
whether civil or criminal possess, in the absence
of any express provision, as inherent in their
constitution, all such powers as are necessary to
do the right and to undo a wrong in course of
administration of justice on the principle quando
lex aliquid alicui concedit, concedere videtur et id
sine quo res ipsae esse non potest (when the law
gives a person anything it gives him that without
which it cannot exist). While exercising powers
under the section, the court does not function as
a court of appeal or revision. Inherent jurisdiction
under the section though wide has to be
exercised sparingly, carefully and with caution
and only when such exercise is justified by the
tests specifically laid down in the section itself. It
is to be exercised ex debito justitiae to do real
and substantial justice for the administration of
which alone courts exist. Authority of the court
exists for advancement of justice and if any
attempt is made to abuse that authority so as to
produce injustice, the court has power to prevent
abuse. It would be an abuse of process of the
court to allow any action which would result in
injustice and prevent promotion of justice. In
exercise of the powers court would be justified to
quash any proceeding if it finds that
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initiation/continuance of it amounts to abuse of
the process of court or quashing of these
proceedings would otherwise serve the ends of
justice. When no offence is disclosed by the
complaint, the court may examine the question of
fact. When a complaint is sought to be quashed,
it is permissible to look into the materials to
assess what the complainant has alleged and
whether any offence is made out even if the
allegations are accepted in toto.
8. In dealing with the last case, it is important to
bear in mind the distinction between a case
where there is no legal evidence or where there is
evidence which is clearly inconsistent with the
accusations made, and a case where there is
legal evidence which, on appreciation, may or
may not support the accusations. When
exercising jurisdiction under Section 482 of the
Code, the High Court would not ordinarily embark
upon an enquiry whether the evidence in question
is reliable or not or whether on a reasonable
appreciation of it accusation would not be
sustained. That is the function of the trial Judge.
Judicial process should not be an instrument of
oppression, or, needless harassment. Court
should be circumspect and judicious in exercising
discretion and should take all relevant facts and
circumstances into consideration before issuing
process, lest it would be an instrument in the
hands of a private complainant to unleash
vendetta to harass any person needlessly. At the
same time the section is not an instrument
handed over to an accused to short-circuit a
prosecution and bring about its sudden death.
The scope of exercise of power under Section 482
of the Code and the categories of cases where the
High Court may exercise its power under it
relating to cognizable offences to prevent abuse
of process of any court or otherwise to secure the
ends of justice were set out in some detail by this
Court in State of Haryana v. Bhajan Lal [1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426 : AIR
1992 SC 604] . A note of caution was, however,
added that the power should be exercised
sparingly and that too in rarest of rare cases. The
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illustrative categories indicated by this Court are
as follows : (SCC pp. 378-79, para 102)
"(1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in their
entirety do not prima facie constitute any offence
or make out a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying
the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under
Section 156(1) of the Code except under an order
of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected in
support of the same do not disclose the
commission of any offence and make out a case
against the accused.
(4) Where the allegations in the FIR do not
constitute a cognizable offence but constitute only
a non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2)
of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that there
is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted
in any of the provisions of the Code or the Act
concerned (under which a criminal proceeding is
instituted) to the institution and continuance of
the proceedings and/or where there is a specific
provision in the Code or the Act concerned,
providing efficacious redress for the grievance of
the aggrieved party.
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(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge."
9. As noted above, the powers possessed by the
High Court under Section 482 of the Code are
very wide and the very plenitude of the power
requires great caution in its exercise. Court must
be careful to see that its decision in exercise of
this power is based on sound principles. The
inherent power should not be exercised to stifle a
legitimate prosecution. The High Court being the
highest court of a State should normally refrain
from giving a prima facie decision in a case where
the entire facts are incomplete and hazy, more so
when the evidence has not been collected and
produced before the Court and the issues
involved, whether factual or legal, are of
magnitude and cannot be seen in their true
perspective without sufficient material. Of course,
no hard-and-fast rule can be laid down in regard
to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the
proceeding at any stage. (See : Janata Dal v.
H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC
(Cri) 36 : AIR 1993 SC 892] , and Raghubir Saran
(Dr) v. State of Bihar [AIR 1964 SC 1 : (1964) 1
Cri LJ 1] .) It would not be proper for the High
Court to analyse the case of the complainant in
the light of all probabilities in order to determine
whether a conviction would be sustainable and on
such premises arrive at a conclusion that the
proceedings are to be quashed. It would be
erroneous to assess the material before it and
conclude that the complaint cannot be proceeded
with. In a proceeding instituted on complaint,
exercise of the inherent powers to quash the
proceedings is called for only in a case where the
complaint does not disclose any offence or is
frivolous, vexatious or oppressive. If the
allegations set out in the complaint do not
constitute the offence of which cognizance has
been taken by the Magistrate, it is open to the
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High Court to quash the same in exercise of the
inherent powers under Section 482 of the Code.
It is not, however, necessary that there should be
meticulous analysis of the case before the trial to
find out whether the case would end in conviction
or acquittal. The complaint has to be read as a
whole. If it appears that on consideration of the
allegations in the light of the statement made on
oath of the complainant that the ingredients of
the offence or offences are disclosed and there is
no material to show that the complaint is mala
fide, frivolous or vexatious, in that event there
would be no justification for interference by the
High Court. When an information is lodged at the
police station and an offence is registered, then
the mala fides of the informant would be of
secondary importance. It is the material collected
during the investigation and evidence led in court
which decides the fate of the accused person. The
allegations of mala fides against the informant
are of no consequence and cannot by themselves
be the basis for quashing the proceedings. (See :
Dhanalakshmi v. R. Prasanna Kumar [1990 Supp
SCC 686 : 1991 SCC (Cri) 142 : AIR 1990 SC
494] , State of Bihar v. P.P. Sharma [1992 Supp
(1) SCC 222 : 1992 SCC (Cri) 192] , Rupan Deol
Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194
: 1995 SCC (Cri) 1059] , State of Kerala v. O.C.
Kuttan [(1999) 2 SCC 651 : 1999 SCC (Cri) 304]
, State of U.P. v. O.P. Sharma [(1996) 7 SCC 705
: 1996 SCC (Cri) 497] , Rashmi Kumar v. Mahesh
Kumar Bhada [(1997) 2 SCC 397 : 1997 SCC
(Cri) 415] , Satvinder Kaur v. State (Govt. of NCT
of Delhi) [(1999) 8 SCC 728 : 1999 SCC (Cri)
1503] and Rajesh Bajaj v. State NCT
5.14. Minu Kumari v. State of Bihar13 more
particularly Paras 19 and 20 which are
reproduced hereunder for easy reference:
(2006) 4 SCC 359
- 32 -
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19. The section does not confer any new power
on the High Court. It only saves the inherent
power which the Court possessed before the
enactment of the Code. It envisages three
circumstances under which the inherent
jurisdiction may be exercised, namely, (i) to give
effect to an order under the Code, (ii) to prevent
abuse of the process of court, and (iii) to
otherwise secure the ends of justice. It is neither
possible nor desirable to lay down any inflexible
rule which would govern the exercise of inherent
jurisdiction. No legislative enactment dealing with
procedure can provide for all cases that may
possibly arise. Courts, therefore, have inherent
powers apart from express provisions of law
which are necessary for proper discharge of
functions and duties imposed upon them by law.
That is the doctrine which finds expression in the
section which merely recognises and preserves
inherent powers of the High Courts. All courts,
whether civil or criminal, possess, in the absence
of any express provision, as inherent in their
constitution, all such powers as are necessary to
do the right and to undo a wrong in course of
administration of justice on the principle quando
lex aliquid alicui concedit, concedere videtur id
sine quo res ipsa esse non potest (when the law
gives a person anything it gives him that without
which it cannot exist). While exercising powers
under the section, the Court does not function as
a court of appeal or revision. Inherent jurisdiction
under the section though wide has to be
exercised sparingly, carefully and with caution
and only when such exercise is justified by the
tests specifically laid down in the section itself. It
is to be exercised ex debito justitiae to do real
and substantial justice for the administration of
which alone courts exist. Authority of the court
exists for advancement of justice and if any
attempt is made to abuse that authority so as to
produce injustice, the court has power to prevent
abuse. It would be an abuse of process of the
court to allow any action which would result in
injustice and prevent promotion of justice. In
exercise of the powers court would be justified to
quash any proceeding if it finds that
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initiation/continuance of it amounts to abuse of
the process of court or quashing of these
proceedings would otherwise serve the ends of
justice.
20. As noted above, the powers possessed by the
High Court under Section 482 of the Code are
very wide and the very plenitude of the power
requires great caution in its exercise. Court must
be careful to see that its decision in exercise of
this power is based on sound principles. The
inherent power should not be exercised to stifle a
legitimate prosecution. The High Court being the
highest court of a State should normally refrain
from giving a prima facie decision in a case where
the entire facts are incomplete and hazy, more so
when the evidence has not been collected and
produced before the Court and the issues
involved, whether factual or legal, are of
magnitude and cannot be seen in their true
perspective without sufficient material. Of course,
no hard-and-fast rule can be laid down in regard
to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the
proceeding at any stage. [See Janata Dal v. H.S.
Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri)
36] and Raghubir Saran (Dr.) v. State of Bihar
[(1964) 2 SCR 336 : AIR 1964 SC 1 : (1964) 1
Cri LJ 1] .]
5.15. State of A.P. v. Golconda Linga Swamy14,
more particularly Paras 5, 8 and 10 which are
reproduced hereunder for easy reference:
5. Exercise of power under Section 482 of the
Code in a case of this nature is the exception and
not the rule. The section does not confer any new
powers on the High Court. It only saves the
inherent power which the Court possessed before
the enactment of the Code. It envisages three
(2004) 6 SCC 522
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circumstances under which the inherent
jurisdiction may be exercised, namely : (i) to give
effect to an order under the Code, (ii) to prevent
abuse of the process of court, and (iii) to
otherwise secure the ends of justice. It is neither
possible nor desirable to lay down any inflexible
rule which would govern the exercise of inherent
jurisdiction. No legislative enactment dealing with
procedure can provide for all cases that may
possibly arise. Courts, therefore, have inherent
powers apart from express provisions of law
which are necessary for proper discharge of
functions and duties imposed upon them by law.
That is the doctrine which finds expression in the
section which merely recognises and preserves
inherent powers of the High Courts. All courts,
whether civil or criminal, possess in the absence
of any express provision, as inherent in their
constitution, all such powers as are necessary to
do the right and to undo a wrong in course of
administration of justice on the principle quando
lex aliquid alique concedit, conceditur et id sine
quo res ipsa esse non potest (when the law gives
a person anything, it gives him that without
which it cannot exist). While exercising powers
under the section, the Court does not function as
a court of appeal or revision. Inherent jurisdiction
under the section though wide has to be
exercised sparingly, carefully and with caution
and only when such exercise is justified by the
tests specifically laid down in the section itself. It
is to be exercised ex debito justitiae to do real
and substantial justice for the administration of
which alone courts exist. Authority of the court
exists for advancement of justice and if any
attempt is made to abuse that authority so as to
produce injustice, the court has power to prevent
such abuse. It would be an abuse of the process
of the court to allow any action which would
result in injustice and prevent promotion of
justice. In exercise of the powers court would be
justified to quash any proceeding if it finds that
initiation or continuance of it amounts to abuse of
the process of court or quashing of these
proceedings would otherwise serve the ends of
justice. When no offence is disclosed by the
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complaint, the court may examine the question of
fact. When a complaint is sought to be quashed,
it is permissible to look into the materials to
assess what the complainant has alleged and
whether any offence is made out even if the
allegations are accepted in toto.
8. As noted above, the powers possessed by the
High Court under Section 482 of the Code are
very wide and the very plenitude of the power
requires great caution in its exercise. Court must
be careful to see that its decision in exercise of
this power is based on sound principles. The
inherent power should not be exercised to stifle a
legitimate prosecution. High Court being the
highest court of a State should normally refrain
from giving a prima facie decision in a case where
the entire facts are incomplete and hazy, more so
when the evidence has not been collected and
produced before the Court and the issues
involved, whether factual or legal, are of
magnitude and cannot be seen in their true
perspective without sufficient material. Of course,
no hard-and-fast rule can be laid down in regard
to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the
proceeding at any stage. [See Janata Dal v. H.S.
Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri)
36 : AIR 1993 SC 892] and Raghubir Saran (Dr.)
v. State of Bihar [AIR 1964 SC 1 : (1964) 1 Cri LJ
1] .] It would not be proper for the High Court to
analyse the case of the complainant in the light of
all probabilities in order to determine whether a
conviction would be sustainable and on such
premises, arrive at a conclusion that the
proceedings are to be quashed. It would be
erroneous to assess the material before it and
conclude that the complaint cannot be proceeded
with. In a proceeding instituted on complaint,
exercise of the inherent powers to quash the
proceedings is called for only in a case where the
complaint does not disclose any offence or is
frivolous, vexatious or oppressive. If the
allegations set out in the complaint do not
constitute the offence of which cognisance has
been taken by the Magistrate, it is open to the
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High Court to quash the same in exercise of the
inherent powers under Section 482 of the Code.
It is not, however, necessary that there should be
meticulous analysis of the case before the trial to
find out whether the case would end in conviction
or acquittal. The complaint/FIR has to be read as
a whole. If it appears that on consideration of the
allegations in the light of the statement made on
oath of the complainant or disclosed in the FIR
that the ingredients of the offence or offences are
disclosed and there is no material to show that
the complaint/FIR is mala fide, frivolous or
vexatious, in that event there would be no
justification for interference by the High Court.
When an information is lodged at the police
station and an offence is registered, then the
mala fides of the informant would be of
secondary importance. It is the material collected
during the investigation and evidence led in court
which decides the fate of the accused person. The
allegations of mala fides against the informant
are of no consequence and cannot by themselves
be the basis for quashing the proceeding. [See
Dhanalakshmi v. R. Prasanna Kumar [1990 Supp
SCC 686 : 1991 SCC (Cri) 142 : AIR 1990 SC
494] , State of Bihar v. P.P. Sharma [1992 Supp
(1) SCC 222 : 1992 SCC (Cri) 192] , Rupan Deol
Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194
: 1995 SCC (Cri) 1059] , State of Kerala v. O.C.
Kuttan [(1999) 2 SCC 651 : 1999 SCC (Cri) 304]
, State of U.P. v. O.P. Sharma [(1996) 7 SCC 705
: 1996 SCC (Cri) 497] , Rashmi Kumar v. Mahesh
Kumar Bhada [(1997) 2 SCC 397 : 1997 SCC
(Cri) 415] , Satvinder Kaur v. State (Govt. of NCT
of Delhi) [(1999) 8 SCC 728 : 1999 SCC (Cri)
1503] , Rajesh Bajaj v. State NCT of Delhi
[(1999) 3 SCC 259 : 1999 SCC (Cri) 401 : AIR
1999 SC 1216] and State of Karnataka v. M.
Devendrappa [(2002) 3 SCC 89 : 2002 SCC (Cri)
539] .]
10. In all these cases there were either
statements of witnesses or seizure of illicit
distilled liquor which factors cannot be said to be
without relevance. Whether the material already
in existence or to be collected during
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investigation would be sufficient for holding the
accused persons concerned guilty has to be
considered at the time of trial. At the time of
framing the charge it can be decided whether
prima facie case has been made out showing
commission of an offence and involvement of the
charged persons. At that stage also evidence
cannot be gone into meticulously. It is immaterial
whether the case is based on direct or
circumstantial evidence. Charge can be framed, if
there are materials showing possibility about the
commission of the crime as against certainty.
That being so, the interference at the threshold
with the FIR is to be in very exceptional
circumstances as held in R.P. Kapur [AIR 1960 SC
866 : 1960 Cri LJ 1239] and Bhajan Lal [1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426] cases.
5.16. Mary Angel v. State of T.N15 more
particularly Paras 11 and 12 which are
reproduced hereunder for easy reference:
11. Next, we would refer to the decision in
Raghubir Saran (Dr) v. State of Bihar [AIR 1964
SC 1 : (1964) 2 SCR 336] wherein this Court
considered the power of the High Court to
expunge remarks made against a medical
practitioner who submitted his opinion on the
health of the accused pending the proceedings
before the Magistrate. While considering the
scope of inherent powers under Section 561-A of
the Code, the Court succinctly analysed the
jurisdiction which could be exercised by the High
Court in the following words:
"When we speak of the inherent powers of the
High Court of a State we mean the powers which
must, by reason of its being the highest court in
the State having general jurisdiction over civil
and criminal courts in the States, inhere in that
AIR 1999 SCC 2245
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court. The powers in a sense are an inalienable
attribute of the position it holds with respect to
the courts subordinate to it. These powers are
partly administrative and partly judicial. They are
necessarily judicial when they are exercisable
with respect to a judicial order and for securing
the ends of justice. When we speak of ends of
justice we do not use the expression to comprise
within it any vague or nebulous concept of
justice, nor even justice in the philosophical sense
but justice according to law, the statute law and
the common law. Again, this power is not
exercisable every time the High Court finds that
there has been a miscarriage of justice. For, the
procedural laws of the State provide for
correction of most of the errors of subordinate
courts which may have resulted in miscarriage of
justice. These errors can be corrected only by
resorting to the procedure prescribed by law and
not otherwise. Inherent powers are in the nature
of extraordinary powers available only where no
express power is available to the High Court to do
a particular thing and where its express powers
do not negative the existence of such inherent
power. The further condition for its exercise,
insofar as cases arising out of the exercise by the
subordinate courts of their criminal jurisdiction
are concerned, is that it must be necessary to
resort to it for giving effect to an order under the
Code of Criminal Procedure or for preventing an
abuse of the process of the court or for otherwise
securing the ends of justice.
The power to expunge remarks is no doubt an
extraordinary power but nevertheless it does
exist for redressing a kind of grievance for which
the statute provides no remedy in express terms.
The fact that the statute recognizes that the High
Courts are not confined to the exercise of powers
expressly conferred by it and may continue to
exercise their inherent powers makes three things
clear. One, that extraordinary situations may call
for the exercise of extraordinary powers. Second,
that the High Courts have inherent power to
secure the ends of justice. Third, that the express
provisions of the Code do not affect that power.
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The precise powers which inhere in the High
Court are deliberately not defined by Section 561-
A for good reason. It is obviously not possible to
attempt to define the variety of circumstances
which will call for their exercise. No doubt, this
section confers no new power but it does
recognize the general power to do that which is
necessary 'to give effect to any order under this
Code, or to prevent abuse of the process of any
court or otherwise to secure the ends of justice'.
But then, the statute does not say that the
inherent power recognized is only such as has
been exercised in the past either. What it says is
that the High Courts always had such inherent
power and that this power has not been taken
away. Whenever in a criminal matter a question
arises for consideration whether in particular
circumstances the High Court has power to make
a particular kind of order in the absence of
express provision in the Code or other statute the
test to be applied would be whether it is
necessary to do so to give effect to an order
under the Code or to prevent the abuse of the
process of the court or otherwise to secure the
ends of justice."
(emphasis added)
12. From the aforesaid decisions, it is apparent
that if there is an express provision governing the
particular subject-matter then there is no scope
for invoking or exercising the inherent powers of
the Court because the Court is required to apply,
in the manner and mode prescribed, the
provisions of the statute which are made to
govern the particular subject-matter. But the
highest court in the State could exercise inherent
powers for doing justice according to law where
no express power is available to do a particular
thing and express powers do not negative the
existence of such power. It is true that under the
Criminal Procedure Code, specific provisions for
awarding costs are only those as stated above. At
the same time, there is no specific bar that in no
other case, costs could be awarded. Further, in
non-cognizable cases, Section 359 empowers the
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courts including the appellate court or the High
Court or the Court of Session while exercising its
powers of revision to order the convicted accused
to pay to the complainant, in whole or in part, the
cost incurred by him in the prosecution including
the expenses incurred in respect of process fees,
witnesses and pleaders' fees which the Court may
consider reasonable. Hence, it may be inferred
that in a cognizable case and in an appeal or
revision arising therefrom, the High Court cannot
exercise its inherent power for awarding costs
dehors the said provisions. But such an inference
is not possible in cases where the Court is
exercising powers under Section 482. It is to be
stated that in cognizable cases also under Section
357 while awarding compensation out of the fine
imposed on the accused, inter alia, the Court is
required to take into consideration expenses
properly incurred in the prosecution. Hence,
exercise of such power would, on the contrary, be
in conformity and not in conflict with the powers
conferred under Sections 148(3), 342 and 357 or
359 of the CrPC. In appropriate cases, where it is
necessary to pass such an order, the Court may
award costs for the purposes, namely, (i) to give
effect to any order passed under the Court, (ii) to
prevent abuse of the process of any court, and
(iii) to secure the ends of justice as there is no
(a) negative provision for exercise of "such
power", and (b) inconsistency with the other
provisions.
Further, awarding of costs, as stated above, can
be for two purposes, one for meeting the
litigation expenses and, secondly, for preventing
the abuse of the process of court or to do justice
in a matter and in such circumstances, costs can
be exemplary. It is true that this jurisdiction is to
be exercised sparingly for the aforesaid purposes
in most appropriate cases and is not limitless but
is to be exercised judiciously.
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5.17. Zandu Pharmaceutical Works Ltd. v. Mohd.
Sharaful Haque16, more particularly Paras 8,
10 and 11 which are reproduced hereunder for
easy reference:
8. Exercise of power under Section 482 of the
Code in a case of this nature is the exception and
not the rule. The section does not confer any new
powers on the High Court. It only saves the
inherent power which the Court possessed before
the enactment of the Code. It envisages three
circumstances under which the inherent
jurisdiction may be exercised, namely, (i) to give
effect to an order under the Code, (ii) to prevent
abuse of the process of court, and (iii) to
otherwise secure the ends of justice. It is neither
possible nor desirable to lay down any inflexible
rule which would govern the exercise of inherent
jurisdiction. No legislative enactment dealing with
procedure can provide for all cases that may
possibly arise. Courts, therefore, have inherent
powers apart from express provisions of law
which are necessary for proper discharge of
functions and duties imposed upon them by law.
That is the doctrine which finds expression in the
section which merely recognises and preserves
inherent powers of the High Courts. All courts,
whether civil or criminal, possess, in the absence
of any express provision, as inherent in their
constitution, all such powers as are necessary to
do the right and to undo a wrong in course of
administration of justice on the principle "quando
lex aliquid alicui concedit, concedere videtur et id
sine quo res ipsae esse non potest" (when the
law gives a person anything, it gives him that
without which it cannot exist). While exercising
powers under the section, the court does not
function as a court of appeal or revision. Inherent
jurisdiction under the section though wide has to
(2005) 1 SCC 122
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be exercised sparingly, carefully and with caution
and only when such exercise is justified by the
tests specifically laid down in the section itself. It
is to be exercised ex debito justitiae to do real
and substantial justice for the administration of
which alone courts exist. Authority of the court
exists for advancement of justice and if any
attempt is made to abuse that authority so as to
produce injustice, the court has power to prevent
abuse. It would be an abuse of process of the
court to allow any action which would result in
injustice and prevent promotion of justice. In
exercise of the powers, court would be justified to
quash any proceeding if it finds that
initiation/continuance of it amounts to abuse of
the process of court or quashing of these
proceedings would otherwise serve the ends of
justice. When no offence is disclosed by the
complaint, the court may examine the question of
fact. When a complaint is sought to be quashed,
it is permissible to look into the materials to
assess what the complainant has alleged and
whether any offence is made out even if the
allegations are accepted in toto.
10. In dealing with the last case, it is important
to bear in mind the distinction between a case
where there is no legal evidence or where there is
evidence which is clearly inconsistent with the
accusations made, and a case where there is
legal evidence which, on appreciation, may or
may not support the accusations. When
exercising jurisdiction under Section 482 of the
Code, the High Court would not ordinarily embark
upon an enquiry whether the evidence in question
is reliable or not or whether on a reasonable
appreciation of it accusation would not be
sustained. That is the function of the trial Judge.
Judicial process should not be an instrument of
oppression, or, needless harassment. Court
should be circumspect and judicious in exercising
discretion and should take all relevant facts and
circumstances into consideration before issuing
process, lest it would be an instrument in the
hands of a private complainant to unleash
vendetta to harass any person needlessly. At the
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same time the section is not an instrument
handed over to an accused to short-circuit a
prosecution and bring about its sudden death.
11. The scope of exercise of power under Section
482 of the Code and the categories of cases
where the High Court may exercise its power
under it relating to cognizable offences to prevent
abuse of process of any court or otherwise to
secure the ends of justice were set out in some
detail by this Court in State of Haryana v. Bhajan
Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri)
426] . A note of caution was, however, added
that the power should be exercised sparingly and
that too in rarest of rare cases. The illustrative
categories indicated by this Court are as follows :
(SCC pp. 378-79, para 102)
"102. (1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in their
entirety do not prima facie constitute any offence
or make out a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying
the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under
Section 156(1) of the Code except under an order
of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected in
support of the same do not disclose the
commission of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only
a non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2)
of the Code.
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(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that there
is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted
in any of the provisions of the Code or the Act
concerned (under which a criminal proceeding is
instituted) to the institution and continuance of
the proceedings and/or where there is a specific
provision in the Code or the Act concerned,
providing efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fides and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge."
As noted above, the powers possessed by the
High Court under Section 482 of the Code are
very wide and the very plenitude of the power
requires great caution in its exercise. Court must
be careful to see that its decision in exercise of
this power is based on sound principles. The
inherent power should not be exercised to stifle a
legitimate prosecution. The High Court being the
highest court of a State should normally refrain
from giving a prima facie decision in a case where
the entire facts are incomplete and hazy, more so
when the evidence has not been collected and
produced before the court and the issues
involved, whether factual or legal, are of
magnitude and cannot be seen in their true
perspective without sufficient material. Of course,
no hard-and-fast rule can be laid down in regard
to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the
proceeding at any stage. [See Janata Dal v. H.S.
Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri)
36] and Raghubir Saran (Dr.) v. State of Bihar
[AIR 1964 SC 1 : (1964) 2 SCR 336 : (1964) 1
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Cri LJ 1] .] It would not be proper for the High
Court to analyse the case of the complainant in
the light of all probabilities in order to determine
whether a conviction would be sustainable and on
such premises arrive at a conclusion that the
proceedings are to be quashed. It would be
erroneous to assess the material before it and
conclude that the complaint cannot be proceeded
with. In a proceeding instituted on complaint,
exercise of the inherent powers to quash the
proceedings is called for only in a case where the
complaint does not disclose any offence or is
frivolous, vexatious or oppressive. If the
allegations set out in the complaint do not
constitute the offence of which cognizance has
been taken by the Magistrate, it is open to the
High Court to quash the same in exercise of the
inherent powers under Section 482 of the Code.
It is not, however, necessary that there should be
meticulous analysis of the case before the trial to
find out whether the case would end in conviction
or acquittal. The complaint has to be read as a
whole. If it appears that on consideration of the
allegations in the light of the statement made on
oath of the complainant that the ingredients of
the offence or offences are disclosed and there is
no material to show that the complaint is mala
fide, frivolous or vexatious, in that event there
would be no justification for interference by the
High Court. When an information is lodged at the
police station and an offence is registered, then
the mala fides of the informant would be of
secondary importance. It is the material collected
during the investigation and evidence led in court
which decides the fate of the accused person. The
allegations of mala fides against the informant
are of no consequence and cannot by themselves
be the basis for quashing the proceedings. [See
Dhanalakshmi v. R. Prasanna Kumar [1990 Supp
SCC 686 : 1991 SCC (Cri) 142] , State of Bihar v.
P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC
(Cri) 192 : AIR 1991 SC 1260] , Rupan Deol Bajaj
v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 :
1995 SCC (Cri) 1059] , State of Kerala v. O.C.
Kuttan [(1999) 2 SCC 651 : 1999 SCC (Cri) 304 :
AIR 1999 SC 1044] , State of U.P. v. O.P. Sharma
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[(1996) 7 SCC 705 : 1996 SCC (Cri) 497] ,
Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2
SCC 397 : 1997 SCC (Cri) 415] , Satvinder Kaur
v. State (Govt. of NCT of Delhi) [(1999) 8 SCC
728 : 1999 SCC (Cri) 1503 : AIR 1999 SC 3596]
and Rajesh Bajaj v. State NCT of Delhi [(1999) 3
SCC 259 : 1999 SCC (Cri) 401] .]
6. Sri.Mahesh Shetty, learned HCGP would submit that
the charge sheet having been laid and the petitioner
being implicated in the matter, the petitioner would
have to stand trial and it should be left to the trial
Court to decide whether the petitioner is guilty of the
offences or not.
7. Heard Sri.M.Shashidhara, learned counsel for the
petitioner, Sri.Mahesh Shetty, learned HCGP for
respondent No.1 and Ms.Anu Chengappa, learned
counsel for respondent No.2 and perused papers.
8. The points that would arise for determination are as
under:-
1) Whether an offence under Section 134 (A
& B) of the Motor Vehicles Act, 1988 would
get attracted in the event of an accident
involving a pet animal?
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2) Whether an offence under Section 187 of
the Motor Vehicles Act, 1988 would get
attracted in the event of an accident
involving a pet animal?
3) Whether an offence under Section 279 of
Indian Penal Code, 1860 can be alleged if
an injury is caused to an animal while
driving the vehicle?
4) For an offence to be alleged under
Sections 428 and 429 of Indian Penal
Code, 1860, there is an animus and/or
intention which is required to be
established?
5) Whether there is a requirement of this
Court to exercise its powers under Section
482 of Code of Criminal Procedure to
quash the proceedings?
6) What order?
9. I answer the above points as under:-
10. Answer to Point No.1: Whether an offence
under Section 134 (A & B) of the Motor Vehicles
Act, 1988 would get attracted in the event of an
accident involving a pet animal?
10.1. Section 134 (a) and (b) of Motor Vehicles
Act, 1988 is reproduced hereunder for easy
reference:
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134. Duty of driver in case of accident
and injury to a person.--When any person
is injured or any property of a third party is
damaged, as a result of an accident in which a
motor vehicle is involved, the driver of the
vehicle or other person in charge of the
vehicle shall--
(a) unless it is not practicable to do so on
account of mob fury or any other reason
beyond his control, take all reasonable steps
to secure medical attention for the injured
person, 3[by conveying him to the nearest
medical practitioner or hospital, and it shall be
the duty of every registered medical
practitioner or the doctor on the duty in the
hospital immediately to attend to the injured
person and render medical aid or treatment
without waiting for any procedural
formalities], unless the injured person or his
guardian, in case he is a minor, desires
otherwise;
(b) give on demand by a police officer any
information required by him, or, if no police
officer is present, report the circumstances of
the occurrence, including the circumstances, if
any, for not taking reasonable steps to secure
medical attention as required under clause
(a), at the nearest police station as soon as
possible, and in any case within twenty-four
hours of the occurrence;
[(c) give the following information in writing
to the insurer, who has issued the certificates
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of insurance, about the occurrence of the
accident, namely:--
(i) insurance policy number and period of its
validity;
(ii) date, time and place of accident;
(iii) particulars of the persons injured or killed
in the accident;
(iv) name of the driver and the particulars of
his driving licence.
Explanation.--For the purposes of this section
the expression "driver" includes the owner of
the vehicle.]
10.2. The heading indicates that the 'duty of a
driver in case of an accident and injury to a
person' and the Section deals with when any
person is injured or driver of the vehicle
causing the accident or any person incharge
of the vehicle is required to secure the
medical attention to the injured person as
also to give on demand by a police officer
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any information required including the
circumstances if any for not taking any
reasonable steps for medical assistance.
10.3. Section 134 of M.V.Act deals with a situation
when any person is injured or any property
of a third party is damaged. But Section 134
(a) and (b) of M.V.Act do not make any
provision for a property being damaged.
Section 134 (a) and (b) of M.V.Act only
speak of securing medical attention for the
injured person. In the present case, if the
pet/animal is regarded to be a property of a
third party, there is no offence as such made
out in terms of Section 134 (a) or (b) of
M.V.Act as regards the damage to such
property of a third party. In view of the
above, I am of the considered opinion that
the said provision relates only to injury to a
person, a dog/animal not being a person
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would not come within the ambit of Section
134 (a) and (b) of M.V.Act.
10.4. Hence, I answer point No.1 by holding that
the provision of Section 134 (a) or (b) of
M.V.Act would not get attracted in the event
of an accident involving a pet/animal.
11. Answer to Point No.2: Whether an offence
under Section 187 of the Motor Vehicles Act,
1988 would get attracted in the event of an
accident involving a pet animal?
11.1. Section 187 of the Motor Vehicles Act, 1988
reads as under:-
187. Punishment for offences relating to
accident.--Whoever fails to comply with the
provisions of clause (c) of sub-section (1) of
section 132 or of section 133 or section 134 shall
be punishable with imprisonment for a term
which may extend to 1[six months], or with fine
[of five thousand rupees], or with both or, if
having been previously convicted of an offence
under this section, he is again convicted of an
offence under this section, with imprisonment for
a term which may extend to 3[one year], or with
fine 4[of ten thousand rupees], or with both.
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11.2. As could be seen Section 187 of M.V.Act
refers to non-compliance with provisions of
Clause (a) of sub-section (1) of Section 132
or of Section 133 or Section 134.
11.3. Clause (a) of sub-section (1) of Section 132
of Motor Vehicles Act, 1988 is reproduced
hereunder for easy reference:-
[(a) when required to do so by any police officer
not below the rank of a Sub-Inspector in
uniform, in the event of the vehicle being
involved in the occurrence of an accident to a
person, animal or vehicle or of damage to
property, or]
11.4. In terms of Clause (a) of sub-section (1) of
Section 132, when a vehicle is involved in
the occurrence of the accident, the driver of
the motor vehicle would require to keep the
said vehicle stationary, if required to be so
done by any police officer not below the rank
of Sub-Inspector in uniform. In the present
case, there is no allegation as regards any
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such request made by a police officer not
below the rank of Sub-Inspector in uniform
or any violation thereof. Hence, Clause (a)
of sub-section (1) of Section 132 of M.V.Act
is not attracted.
11.5. Section 133 of Motor Vehicles Act, 1988
reads as under:-
133. Duty of owner of motor vehicle to give
information.--The owner of a motor vehicle, the
driver or conductor of which is accused of any
offence under this Act shall, on the demand of
any police officer authorised in this behalf by the
State Government, give all information regarding
the name and address of, and the licence held
by, the driver or conductor which is in his
possession or could by reasonable diligence be
ascertained by him.
11.6. An offence under Section 133 of M.V.Act is
made out if a driver does not provide
information on demand by any police officer
authorized in this behalf by the State
Government.
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11.7. A perusal of the complaint does not indicate
any demand made by any police officer
and/or refusal by the petitioner to give such
information. Thus, I am of the considered
opinion that the provision of Section 133 of
M.V.Act is also not attracted to the given
facts situation.
11.8. Section 134 of Motor Vehicles Act, 1988
reads as under:-
134. Duty of driver in case of accident and
injury to a person.--When any person is
injured or any property of a third party is
damaged, as a result of an accident in which a
motor vehicle is involved, the driver of the
vehicle or other person in charge of the vehicle
shall--
(a) unless it is not practicable to do so on
account of mob fury or any other reason beyond
his control, take all reasonable steps to secure
medical attention for the injured person, 3[by
conveying him to the nearest medical
practitioner or hospital, and it shall be the duty
of every registered medical practitioner or the
doctor on the duty in the hospital immediately to
attend to the injured person and render medical
aid or treatment without waiting for any
procedural formalities], unless the injured person
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or his guardian, in case he is a minor, desires
otherwise;
(b) give on demand by a police officer any
information required by him, or, if no police
officer is present, report the circumstances of the
occurrence, including the circumstances, if any,
for not taking reasonable steps to secure medical
attention as required under clause (a), at the
nearest police station as soon as possible, and in
any case within twenty-four hours of the
occurrence;
[(c) give the following information in writing to
the insurer, who has issued the certificates of
insurance, about the occurrence of the accident,
namely:--
(i) insurance policy number and period of its
validity;
(ii) date, time and place of accident;
(iii) particulars of the persons injured or killed in
the accident;
(iv) name of the driver and the particulars of his
driving licence.
Explanation.--For the purposes of this section the
expression "driver" includes the owner of the
vehicle.]
11.9. The aspect of Section 134 (a) and (b) of
M.V.Act has been dealt with in answer to
point No.1 above.
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11.10. In view of the above discussion and analysis,
I am of the considered opinion that it cannot
be said that there is any non-compliance
with the provision of Clause (a) of Sub-
Section (1) of Section 132 or Section 133 or
Section 134 requiring the applicability of
Section 187 of the M.V.Act.
11.11. Hence, I answer Point No.2 by holding that
in the event of an accident involving a
pet/animal, Section 187 of M.V.Act would not
get attracted.
12. Answer to Point No.3: Whether an offence
under Section 279 of Indian Penal Code, 1860
could be said to have occurred if the accident
involved a pet dog and not a human being?
12.1. Section 279 of Indian Penal Code, 1860
reads as under:-
279. Rash driving or riding on a public
way.--Whoever drives any vehicle, or rides, on
any public way in a manner so rash or negligent
as to endanger human life, or to be likely to
cause hurt or injury to any other person, shall be
punished with imprisonment of either description
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for a term which may extend to six months, or
with fine which may extend to one thousand
rupees, or with both.
12.2. A perusal of the above provision would
indicate that the driver of the vehicle is to
endanger human life or likely to cause hurt
or injury to any other person. Though the
heading of the Section is rash driving or
riding on a public way, the same is only a
heading. What is required to be seen is the
contents of the provision. The above
provision does not recognize and/or make an
offence any injury caused otherwise than to
human being. Thus, insofar as the injury or
death caused to the pet or animal is
concerned, the same would not amount to
an offence in terms of Section 279 of IPC.
12.3. Ms.Anu Chengappa, learned counsel for
respondent No.2 has contended by relying
upon the decision in A.Nagaraja's6 case
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that no creature is superior to any human
beings and animals are to be treated equally
and that even the animals have a right to
life. The observation of the Hon'ble Apex
Court in the said case was with reference to
Sections 3 and 11 of the Prevention of
Cruelty to Animals Act. The said
observation, in my considered opinion,
cannot be made applicable to Section 279 of
IPC since an offence being penal in nature
involving punishment unless the provision
makes a particular act an offence, an
interpretation cannot be rendered so as to
make an act which is not an offence to be an
offence under the said provision. So long as
Section 279 of IPC stands as it is, the same
cannot be extended to any injury or death
caused to an animal. If the submission of
Ms.Anu Chengappa is accepted and the word
person is interpreted to include an animal,
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then in the event of a death of a pet or
animal, the offence under Section 302 of IPC
would also be attracted which would not be
the purport and intent of the IPC.
12.4. In the present circumstances, the penal
provision of Section 279 of IPC if read and
understood in its literal sense which is the
interpretation required to be given to all
penal provisions, endangering a pet or
causing hurt or injury to a pet/animal would
not be one, which is punishable under
Section 279 of IPC.
12.5. Hence, I answer Point No.3 by holding that
an accident involving a pet dog would not
attract an offence under Section 279 of IPC.
13. Answer to Point No.4: For an offence to be
alleged under Section 428 and 429 of Indian
Penal Code, 1860, there is an animus and/or
intention which is required to be established?
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13.1. The provision of Section 428 and 429 of IPC
are found mentioned under Chapter XVII
relating to "Offences against the property"
and come under sub-heading relating to
"mischief".
13.2. Section 425 of IPC defines mischief and
reads as under:-
425. Mischief.--Whoever with intent to cause,
or knowing that he is likely to cause, wrongful
loss or damage to the public or to any person,
causes the destruction of any property, or any
such change in any property or in the situation
thereof as destroys or diminishes its value or
utility, or affects it injuriously, commits
"mischief".
Explanation 1.--It is not essential to the offence
of mischief that the offender should intend to
cause loss or damage to the owner of the
property injured or destroyed. It is sufficient if
he intends to cause, or knows that he is likely to
cause, wrongful loss or damage to any person by
injuring any property, whether it belongs to that
person or not.
Explanation 2.--Mischief may be committed by
an act affecting property belonging to the person
who commits the act, or to that person and
others jointly.
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13.3. For Section 425 of IPC to be applicable,
there has to be an intent to cause or
knowledge that it is likely to cause wrongful
loss or damage to public or to any person
due to destruction of any property, change in
any property, which results in destruction
and diminution of the value or utility.
13.4. Section 428 of IPC reads as under:-
428. Mischief by killing or maiming animal
of the value of ten rupees.--Whoever commits
mischief by killing, poisoning, maiming or
rendering useless any animal or animals of the
value of ten rupees or upwards, shall be
punished with imprisonment of either description
for a term which may extend to two years, or
with fine, or with both.
13.5. For an offence under Section 428 of IPC, a
person is to commit mischief by killing,
poisoning, maiming or rendering useless any
animal or animals of the value of ten rupees
or upwards. Thus, destruction or diminution
in value or utility is to be caused by killing,
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poisoning, maiming or rendering useless any
animal.
13.6. Section 429 of IPC reads as under:-
429. Mischief by killing or maiming cattle,
etc., of any value or any animal of the value
of fifty rupees.--Whoever commits mischief by
killing, poisoning, maiming or rendering useless,
any elephant, camel, horse, mule, buffalo, bull,
cow or ox, whatever may be the value thereof,
or any other animal of the value of fifty rupees
or upwards, shall be punished with imprisonment
of either description for a term which may
extend to five years, or with fine, or with both.
13.7. An offence under Section 429 of IPC results
when a person commits mischief by killing,
poisoning, maiming or rendering useless any
elephant, camel, horse, mule, buffalo, bull,
cow or ox whatever may be the value
thereof or any other animal of the value of
fifty rupees or upwards.
13.8. Thus, depending on the value of the animal
killed, two separate offences are made out.
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Under Section 428 of IPC, the value to be
Rs.10 or upwards and under Section 429 of
IPC, the value to be Rs.50 or upwards or be
any of the specified animals viz., elephant,
camel, horse, mule, buffalo, bull, cow or ox.
Thus, apart from the said animals, if any
other animal has a value of more than Rs.50,
then it is Section 429 of IPC, which would be
applicable and not Section 428 of IPC.
13.9. The contention of Sri.M.Shashidhara, learned
counsel for the petitioner is that for an
offence under Section 428 or 429 of IPC said
to be caused, there has to be a deliberate
attempt by an accused of committing the act
dealt with Section 428 or 429 of IPC
requiring an animus on part of the offender.
In this regard, he relied upon the decisions
referred to above in support of his
contentions.
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13.10. Per contra Ms.Anu Chengappa, learned
counsel for respondent No.2 relying upon the
decisions referred to above submitted that
there are growing number of accidents
across the country. Whenever such an
accident occurs, an offence is committed
either by injury or killing any person
including an animal, strict action is required
to be taken and the offender should be
punished. The punishment should act as a
deterrent from anyone else committing such
an offence. There being negligent driving,
the same has to be strictly dealt with.
13.11. A perusal of the decisions relied upon by
Ms.Anu Chengappa, learned counsel for
respondent No.2 would indicate that all those
matters are those which are related to
human beings. None of those citations dealt
with any injury or death caused to a
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pet/animal nor do they deal with Section 428
or Section 429 of IPC. Hence, I am of the
considered opinion that those decisions
would not be applicable to the present case
and be applicable only when an injury or
death of a human being/person occurs.
13.12. By relying on A. Nagaraja's case6, Ms.Anu
Chengappa contended that both human
beings and animals are required to be
equally protected and equally considered and
as such, the offences under the Indian Penal
Code and Motor Vehicles Act would be
equally applicable if an injury or death of an
animal is caused.
13.13. There can be no two opinions as regards the
decision of the Hon'ble Apex Court in
A.Nagaraja's case6. However, that was a
decision rendered relating to Section 3 and
Section 11 of the Prevention of Cruelty to
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Animals act, 1960. Even if the said decisions
were to be applied to an offence under
Section 428 or Section 429 of IPC, which
deals with mischief to property more so
animals, there is no provision similar to
Section 304A of IPC available under Chapter
XVII more so under the sub-chapter Mischief
relating to causing death of an animal by
negligence. In the absence of such a
classification and/or such an offence being
categorized, I am of the considered opinion
that it is the general principles of criminal
law which would be applicable for any
offence under IPC and for an offence under
Section 428 or Section 429 of IPC to be
committed there must be a mens rea which
is required to be established. Without such
means rea or when animus to commit an
offence is absent, it cannot be said that an
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offence under Section 428 or Section 429 of
IPC has occurred.
13.14. Though Ms.Anu Chengappa, learned counsel
for respondent No.2 has contended that the
mother of the complainant could also have
been injured, the fact remains that the FIR is
not registered for any offence of injury to the
mother of the complainant and as such, the
provision relating thereto would not get
attracted. An offender can be punished for
an offence which he commits and not for an
offence which could possibly have been
committed.
13.15. In the present case, the only offence if at all
is attributed is likely under Section 428 or
Section 429 of IPC. It is required that there
must be mens rea or animus for the accused
to have committed such an offence.
Admittedly, the petitioner is not known to
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the complainant and/or his family members
nor that the petitioner has any enmity with
the deceased pet dog Memphi. Hence, there
cannot be any animus said to be existence in
the petitioner to cause the death of the said
pet Memphi.
13.16. I am of the considered opinion that mere
knowing that there is likely to cause an
accident is not sufficient. There has to be an
intent to cause wrongful loss or damage.
The same not having been established
exfacie, I am of the considered opinion that
no offence under Section 428 and Section
429 of IPC can be said to be made out.
13.17. The interpretation to the said provisions is
required to be given as it exists and not on
the basis of the submission made by Ms.Anu
Chengappa that even as regards animus, the
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test of likely to cause wrongful loss or
damage cannot be applied.
13.18. Hence, I answer Point No.4 by holding that
for an offence under Section 428 or Section
429 of IPC, it is required that a mens rea,
animus or intention is required to be
established.
14. Answer to Point No.5: Whether there is a
requirement of this Court to exercise its powers
under Section 482 of Code of Criminal
Procedure to quash the proceedings?
14.1. Section 482 of Code of Criminal Procedure
reads as under:-
482. Saving of inherent powers of High Court.
Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to
make such orders as may be necessary to give
effect to any order under this Code, or to
prevent abuse of the process of any Court or
otherwise to secure the ends of justice.
14.2. The contention of Ms.Anu Chengappa by
relying upon the decision in
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Devendrappa's12 case, Minu Kumari's13
case, Golconda Linga Swamy's14 case,
Mary Angel's15 case and Zandu
Pharmaceutical Works Ltd.16 case is that
this Court ought not to quash the
proceedings. This Court ought to permit the
trial to go on for the ascertainment of the
truth, this Court can not appreciate the
evidence on record and as such, she submits
that the powers under Section 482 of Cr.P.C.
ought not to be exercised by this Court in
the present circumstances.
14.3. The inherent powers under Section 482 of
Cr.P.C. are required to be exercised by this
Court in circumstances which require such
power to be exercised and not in all cases.
Once such circumstances exists, that is if no
offence is made out, the criminal
proceedings would have to be quashed, since
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the continuation of criminal prosecution
would amount to travesty of justice.
14.4. Having come to a conclusion that there is no
offence made out under Section 134 (a) and
(b) of M.V.Act, Section 187 of M.V.Act,
Section 279 of IPC as also under Section 428
and 429 of IPC, I am of the considered
opinion that the continuation of the criminal
proceedings would only be an abuse of
process of Court and would cause injustice to
the petitioner to suffer the ignominy of a
criminal trial. Hence, I am of the considered
opinion that this is a fit and proper case for
exercise of powers under Section 482 of
Cr.P.C.
15. Answer to Point No.6: What order?
15.1. In view of the findings to the above
questions, I pass the following:
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ORDER
i. The Criminal Petition is allowed.
ii. The proceedings in Crime No.21/2018
registered by Vijayanagar Police Station, for
the offences punishable under Sections 134(a)
and (b) and 187 of Motor Vehicles Act, 1988
and Sections 279, 428, 429 of Indian Penal
Code pending on the file of Metropolitan
Magistrate Traffic Court-II, Bengaluru in
C.C.No.5016/2018 and all orders passed
therein are hereby quashed.
Sd/-
JUDGE
Prs*
