Kerala High Court

Antriksh Dagar vs State Of Kerala on 17 February, 2025

Author: V.G.Arun

Bench: V.G.Arun

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

               THE HONOURABLE MR.JUSTICE V.G.ARUN

  MONDAY, THE 17TH DAY OF FEBRUARY 2025 / 28TH MAGHA, 1946

                    CRL.MC NO. 9609 OF 2024

  CRIME NO.2076/2023 OF Harbour Police Station, Ernakulam

     AGAINST THE ORDER/JUDGMENT DATED IN SC NO.949 OF 2024

OF VI ADDITIONAL DISTRICT COURT, ERNAKULAM

PETITIONER:

         ANTRIKSH DAGAR
         AGED 23 YEARS
         S/O. DEEPAK DAGAR, H. NO. 702, GROUND FLOOR,
         SHATIKHAND-4, INDIRAPURAM, GHAZIABAD, UTTAR
         PRADESH - 201014 PRESENTLY RESIDING AT QUARTER NO.
         138, CUSTOMS QUARTERS, WELLINGTON ISLAND,
         THOPPUMPADY VILLAGE, COCHIN, PIN - 682003


         BY ADVS.
         K.RAJEEV
         V.VISAL AJAYAN
         NIVEDITHA R. MENON




RESPONDENTS:

         STATE OF KERALA
         REPRESENTED BY PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, PIN - 682031


         BY ADVS.
         ADVOCATE GENERAL OFFICE KERALA
         DIRECTOR GENERAL OF PROSECUTION(AG-10)
 Crl>MC.No.9609/2024
                               2




                                               2025:KER:18243

            P.NARAYANAN, SENIOR G.P. AND ADDL.PUBLIC
            PROSECUTOR()
            SHRI.SAJJU.S., SENIOR G.P.()



OTHER PRESENT:

            SRI. G. SUDHEER, PP.


      THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
10.02.2025, THE COURT ON 17.02.2025 PASSED THE FOLLOWING:
 Crl>MC.No.9609/2024
                                      3




                                                            2025:KER:18243

                               V.G.ARUN, J
                  = = = = = = = = = = = = = = = = =
                       Crl.M.C.No.9609 of 2024
                 = = = = = = = = = = = = = = = = = =
               Dated this the 17th day of February, 2025

                               ORDER

Petitioner is the 2nd accused in Crime No.2076 of 2023

registered at the Harbour Police Station, Ernakulam for

offences punishable under Sections 107 and 34 of IPC and

Section 188 of the Motor Vehicles Act. The case of the

prosecution is that the Harbour Police had registered Crime

No.2076/2023 on 25.10.2023 at 3.19 am on the basis of the

intimation received from the Casualty Medical Officer of the

General Hospital, Ernakulam that one Vinay Mathew, who met

with an accident on 25.10.2023 at 2.10 am on the Indira Gandhi

Road, Cochin was brought dead to the hospital. After

completing investigation, final report was filed alleging that the

1st accused, who was in a drunken state, drove the car bearing

No.UP 78 HE 9180 in a rash and negligent manner and hit

against the motor cycle ridden by Vinay Mathew, resulting in

2025:KER:18243

his death. The petitioner is arrayed as the 2 nd accused on the

allegation that by travelling in the car driven by the 1 st accused,

after consuming liquor, he had abetted the 1 st accused to

commit the offence. The petitioner is seeking to get the

criminal proceedings against him quashed on the ground that,

even if the prosecution allegations are accepted in their

entirety, the offence of abetment is not made out.

2. Learned counsel for the petitioner put forth the

following contentions in support of the prayer for quashing the

proceedings;

Abetment under Section 107 IPC involves the mental

process of instigating a person or intentionally aiding a person

in doing a thing. Merely for reason of having travelled in the

car driven by a person who had consumed liquor, the passenger

cannot be held guilty of abetting the driver to commit the

offence. In support of the contention, reliance is placed on the

decision in Kanchan Sharma v. State of Uttar Pradesh and

Another [(2021) 13 SCC 806]. It is further contended that, for

2025:KER:18243

attracting Section 188 of the Motor Vehicles Act also, abetment

is the primary ingredient.

3. Learned Public Prosecutor contended that, by his act of

travelling in the car driven by the 1 st accused after consuming

alcohol, petitioner had encouraged him to drive the vehicle,

which ultimately resulted in an innocent person losing his life.

4. To understand as to what would amount to abetment

under Section 107 of IPC, the provision, extracted below for

easy reference, has to be analysed carefully;

"107. Abetment of a thing- A person abets the doing of a thing, who- First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

xxx xxx xxx xx

2025:KER:18243

Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."

On analysis, it becomes apparent that for an act to be

termed abetment, the accused person must have either

instigated or engaged in a conspiracy with others, or should

have intentionally aided the doing of a thing by his act or illegal

omission. The following succinct discussion in Goura Venkata

Reddy v. State of A.P. [(2003) 12 SCC 469], gives a clearer

picture of the term 'abetment';

"8. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person abets the doing of a thing when ( 1) he instigates any person to do that thing; or ( 2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is

2025:KER:18243

no provision for the punishment of such abetment then the offender is to be punished with the punishment provided for the original offence. "Act abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence. In the instant case, the abetted persons have been convicted for commission of offence punishable under Section 304. So in the case of A-1 it is Section 304 read with Section 109 IPC, that is attracted."

5.Culpable homicide not amounting to murder is the

offence which the petitioner is alleged to have abetted. In

Alister Anthony Pareira v. State of Maharashtra [(2012) 2

SCC 648], the Supreme Court has observed that a person

responsible for a reckless or rash or negligent act that causes

death could be attributed with the knowledge of the

consequence and may be fastened with culpable homicide not

amounting to murder, punishable under Section 304 Part II IPC,

if he had knowledge that his act was dangerous enough to lead

to some untoward incident that can lead to death. The question

here is whether the passenger in the vehicle can be held guilty

of abetment for the reckless act of the driver in causing an

2025:KER:18243

accident by driving the vehicle after consuming liquor. The

answer can only be in the negative since, by his mere presence

inside the vehicle, the passenger does not instigate the driver

in any manner. This precise question was considered by this

Court in State of Kerala v. Sreeram Venkittaraman [2023

(3) KHC 221], the relevant portion of which is extracted below;

"26. S.107 IPC deals with the offence of abetment. It requires instigation or engaging in a conspiracy for doing an illegal act or intentionally aids the doing of an act or illegally omits to do an act to enable the commission of an offence. The decision in Kashibai and Others v. The State of Karnataka, (2023 KHC 6194:2023 LiveLaw (SC) 149 : 2023 (1) KLD 409 : 2023 KHC OnLine 6194) is apposite in this context. There is not an iota of material to indicate that the second accused had intentionally aided, instigated or conspired with the first accused to commit the offence. Providing the facility for driving a vehicle without anything more cannot amount to abetment. It is not enough that an act on the part of the alleged abettor happens to facilitate the commission of the crime. Intentional aiding, and therefore active complicity is the

2025:KER:18243

gist of the offence of abetment under the third paragraph of S.107, as observed by the Supreme Court in Shri Ram v. State of U.P., 1975 (3) SCC 495. Viewed in the above perspective, this Court is of the opinion that the offence of S.188 of the MV Act cannot be charged against the second accused in the nature of the materials collected by the investigation. Therefore she is entitled to be discharged for the said offence. The order of the learned Sessions Judge refusing to discharge the second accused is liable to be set aside. "

The above discussion leads to the only possible conclusion

that the petitioner cannot be prosecuted for the offence of

having abetted the 1st accused to drive the vehicle in an

inebriated condition and cause the accident.

For the aforementioned reasons, the Crl.M.C is allowed.

Annexure II final report and all further proceedings against the

petitioner in S.C.No.949 of 2024 on the files of the Additional

Sessions Court-VI, Ernakulam is quashed.

sd/-

V.G.ARUN, JUDGE sj

2025:KER:18243

PETITIONER ANNEXURES