Karnataka High Court
Sri. Manav Kapasi vs Station House Officer on 4 September, 2024
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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CRL.P No. 3296 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRIMINAL PETITION NO. 3296 OF 2024
BETWEEN:
SRI MANAV KAPASI
S/O SRI PANKAJ H. KAPASI
AGED ABOUT 23 YEARS
R/AT NO. 59, SERPENTINE
ROAD, OPP HOPCOMS
KUMARA PARK WEST
NORTH SHESHADRIPURAM
BANGALORE - 560 020.
...PETITIONER
(BY SRI SANDESH J. CHOUTA, SR. COUNSEL FOR
SRI LAXMINARAYANA, ADV.)
AND:
STATION HOUSE OFFICER
CHICKPET TRAFFIC POLICE STATION
BANGALORE, REP BY SPP OFFICE
Digitally HIGH COURT BUILDING
signed by
NANDINI MS BANGALORE - 01.
Location: ...RESPONDENT
High Court of
Karnataka (BY SRI K. NAGESHWARAPPA, HCGP)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE
ENTIRE PROCEEDINGS INSTATED BY THE RESPONDENT CHIKKAPET
TRAFFIC POLICE IN C.C.NO.1314/2024 PENDING ON THE FILE OF
THE 2nD METROPOLITAN MAGISTRATE (TRAFFIC COURT)
BENGALURU CITY PRODUCED AT ANNEXURE E FOR OFFENCE P/US/
279 AND 304-A OF IPC BY THE RESPONDENT CHIKKAPET TRAFFIC
POLICE BENGLAURU CITY AGAINST THE PETITIONER.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER
WAS MADE THEREIN AS UNDER:
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CRL.P No. 3296 of 2024
CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
1. Accused in CC No.1314/2024 pending on the file of the
II Metropolitan Magistrate (Traffic Court), Bengaluru, arising
out of Crime No.233/2023 registered by Chickpet Traffic Police
Station, Bengaluru City, for the offences punishable under
Sections 279 and 304(A) of IPC, is before this Court under
Section 482 of Cr.P.C. with a prayer to quash the entire
proceedings in the said case.
2. Heard the learned counsel for the parties.
3. Learned Senior counsel for the petitioner submits that
even if the allegations found in the first information and the
charge sheet are prima facie presumed to be true, the alleged
offences cannot be invoked in the present case. He submits
that the deceased had accidentally rolled to the road and had
come under wheels of the vehicle, which was driven by the
petitioner. Petitioner was not driving the vehicle in a rash and
negligent manner. CW2, who is the sole eye witness in the
present case has clearly stated that the deceased, who was
sleeping on the footpath had rolled down to the road and had
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come under the wheels of petitioner's vehicle. Even in his
confession statement, petitioner has stated that he could not
see the deceased since he had rolled into the road from the
footpath and came under wheels. He submits that for the
purpose of constituting a criminal offence, the degree of
negligence is required to be very high and in the present case,
even if it is presumed that there was lack of care, petitioner
cannot be prosecuted for the alleged offences.
4. Per contra, learned HCGP has fairly submitted that except
the evidence of CW2, there is no other evidence to show that
the petitioner was driving his car in a rash and negligent
manner. He submits that CW2 has only stated that the
deceased, who was sleeping on the foot path had rolled into the
road and had come under wheels.
5. From a perusal of the first information as well as charge
sheet allegations, it is seen that on 11.11.2023 at about
01.45 p.m. the petitioner, who was driving his car bearing
registration No.KA02MK9306 in a rash and negligence manner
on Cottonpet main road, had dashed his car against unknown
person, who had sustained injuries in the said road traffic
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accident and was immediately shifted to Government Hospital.
The injured victim was declared brought dead in the Hospital. It
is in this background, FIR was registered against the petitioner.
CW2, is the sole eye witness to the accident in question. He has
clearly stated that the deceased, who was sleeping on the
footpath, had rolled into the road and had come under wheels
of petitioner's car and as a result, the accident in question had
taken place. Even the petitioner in his confession statement has
narrated the accident similarly. The identification of the
deceased has not been done till date. Learned HCGP submits
that nobody had claimed the dead body of the deceased and
the State itself had performed the last rites of the dead body.
6. The Hon'ble Supreme Court in the case of Jacob Mathew
vs. State of Punjab and Another - (2005) 6 SCC 1, in
paragraph Nos.10 to 12, has observed as follows:-
"Negligence as a tort
10. The jurisprudential concept of negligence defies
any precise definition. Eminent jurists and leading
judgments have assigned various meanings to
negligence. The concept as has been acceptable to
Indian jurisprudential thought is well stated in the
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Law of Torts, Ratanlal & Dhirajlal (24th Edn., 2002,
edited by Justice G.P. Singh). It is stated (at pp.
441-42):
"Negligence is the breach of a duty caused
by the omission to do something which a
reasonable man, guided by those considerations
which ordinarily regulate the conduct of human
affairs would do, or doing something which a
prudent and reasonable man would not do.
Actionable negligence consists in the neglect of
the use of ordinary care or skill towards a
person to whom the defendant owes the duty of
observing ordinary care and skill, by which
neglect the plaintiff has suffered injury to his
person or property. ... the definition involves
three constituents of negligence: (1) A legal
duty to exercise due care on the part of the
party complained of towards the party
complaining the former's conduct within the
scope of the duty; (2) breach of the said duty;
and (3) consequential damage. Cause of action
for negligence arises only when damage occurs;
for, damage is a necessary ingredient of this
tort."
11. According to Charlesworth & Percy on
Negligence (10th Edn., 2001), in current forensic
speech, negligence has three meanings. They are:
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(i) a state of mind, in which it is opposed to
intention; (ii) careless conduct; and (iii) the breach
of a duty to take care that is imposed by either
common or statute law. All three meanings are
applicable in different circumstances but any one of
them does not necessarily exclude the other
meanings. (para 1.01) The essential components of
negligence, as recognised, are three: "duty",
"breach" and "resulting damage", that is to say:
(1) the existence of a duty to take care,
which is owed by the defendant to the
complainant;
(2) the failure to attain that standard of
care, prescribed by the law, thereby
committing a breach of such duty; and
(3) damage, which is both causally
connected with such breach and recognised by
the law, has been suffered by the
complainant. (para 1.23)
If the claimant satisfies the court on the evidence
that these three ingredients are made out, the
defendant should be held liable in negligence. (para
1.24)
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Negligence -- as a tort and as a crime
12. The term "negligence" is used for the
purpose of fastening the defendant with liability
under the civil law and, at times, under the criminal
law. It is contended on behalf of the respondents
that in both the jurisdictions, negligence is
negligence, and jurisprudentially no distinction can
be drawn between negligence under civil law and
negligence under criminal law. The submission so
made cannot be countenanced inasmuch as it is
based upon a total departure from the established
terrain of thought running ever since the beginning
of the emergence of the concept of negligence up to
the modern times. Generally speaking, it is the
amount of damages incurred which is determinative
of the extent of liability in tort; but in criminal law it
is not the amount of damages but the amount and
degree of negligence that is determinative of
liability. To fasten liability in criminal law, the
degree of negligence has to be higher than that of
negligence enough to fasten liability for damages in
civil law. The essential ingredient of mens rea
cannot be excluded from consideration when the
charge in a criminal court consists of criminal
negligence. In R. v. Lawrence, Lord Diplock spoke in
a Bench of five and the other Law Lords agreed with
him. He reiterated his opinion in R. v. Caldwell and
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dealt with the concept of recklessness as
constituting mens rea in criminal law. His Lordship
warned against adopting the simplistic approach of
treating all problems of criminal liability as soluble
by classifying the test of liability as being
"subjective" or "objective", and said: (All ER p.
982e-f)
"Recklessness on the part of the doer of
an act does presuppose that there is
something in the circumstances that would
have drawn the attention of an ordinary
prudent individual to the possibility that his
act was capable of causing the kind of serious
harmful consequences that the section which
creates the offence was intended to prevent,
and that the risk of those harmful
consequences occurring was not so slight that
an ordinary prudent individual would feel
justified in treating them as negligible. It is
only when this is so that the doer of the act is
acting 'recklessly' if, before doing the act, he
either fails to give any thought to the
possibility of there being any such risk or,
having recognised that there was such risk, he
nevertheless goes on to do it.""
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7. In the case on hand, there is absolutely no material to
show that the petitioner was driving his car in a rash and
negligence manner. CW2, who is the sole eye witness to the
incident in question does not state that the petitioner was
driving his car in a rash and negligent manner at the time of
accident in question. According to CW2, the deceased, who was
sleeping on the footpath had rolled into the road and had come
under the wheels of the petitioner's car. In order to arrive at a
conclusion that there was existence of criminal rashness or
negligence, the material on record requires to prima facie show
that rashness was of such a degree which is likely to cause a
hazard and knowing that such a hazard was of such a decree
that injury was most likely eminent. Such material is absent in
the present case. Simple lack of care is not sufficient to saddle
criminal liability against a person with allegation of criminal
rashness and criminal negligence. In the case on hand,
necessary ingredients i.e., criminal rashness and criminal
negligence so as to invoke the alleged offences against the
petitioner is absent and therefore, petitioner cannot be
prosecuted for the said offences. In my opinion, continuation of
the impugned criminal proceedings against the petitioner for
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the alleged offences would therefore amount to abuse of
process of law and for the purpose of securing the ends of
justice, it is necessary to quash the same. Accordingly, the
following order:-
8. The Petition is allowed. The entire proceedings in
CC No.1314/2024 pending on the file of II Metropolitan
Magistrate (Traffic Court), Bengaluru, arising out of Crime
No.233/2023 registered by Chickpet Traffic Police Station,
Bengaluru City, for the offences punishable under Sections 279
and 304(A) of IPC, is hereby quashed.
Sd/-
(S VISHWAJITH SHETTY)
JUDGE
DN
