Kilaru Ramakrishna And Another vs State Of Telangana And Another
2022 Latest Caselaw 3917 Tel

            HON'BLE SRI JUSTICE K. LAKSHMAN

             CRIMINAL PETITION No.9384 OF 2021
ORDER:

The present Criminal Petition is filed under Section - 482 of the

Code of Criminal Procedure, 1973, to quash the proceedings against

the petitioners in P.R.C. No.7 of 2021 pending on the file of III

Additional Judicial Magistrate of First Class, Kothagudem.

2. Petitioners herein are arraigned as accused Nos.2 and 3

respectively in the aforesaid P.R.C. The offence alleged against them

is under Section - 304-II read with 34 of IPC.

3. Heard Mr. C. Raghu, learned Senior Counsel appearing on

behalf of the petitioners and the learned Public Prosecutor appearing

on behalf of respondent No.1 - State. Despite service of notice, none

appears on behalf of respondent No.2 - de facto complainant.

4. As per charge sheet, accused No.1 is the driver of Lorry

bearing registration No.TS 04UA 5658, while the deceased - Mr.

Bhureddy Madhusudhan Reddy was the cleaner. Whereas petitioner

No.1 herein - accused No.2 is the owner of the said lorry and

petitioner No.2 herein - accused No.3 is the supervisor at the work

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place, where accused No.1 while moving the subject lorry in reversal

direction, its back part dashed the deceased, due to which, he died.

5. On 22.06.2020 in the morning hours, the deceased attended

the duty on the aforesaid subject lorry at KRK Crushing Mill as a

cleaner. The deceased and accused No.1 started transportation of

concrete in the said vehicle. On the said date at about 20:30 hours,

while accused No.1 was taking the vehicle in reverse turn, the

deceased stood at the backside of the vehicle dashed the deceased

forcefully with the vehicle in a rash and negligent manner. Due to the

same, the deceased fell on the concrete by receiving severe injuries on

his head and thigh. Immediately he was shifted to Government

Hospital, Paloncha in an Auto-rickshaw. On observing the deceased,

the doctors declared him as brought dead. The petitioners herein even

did not provide the lighting which is also one of the reasons for

causing the death of the deceased.

i) On the complaint lodged by the wife of the deceased, the

police, Paloncha Rural has registered a case in Crime No.112 of 2020

for the aforesaid offence and took up for investigation. During the

course of investigation, the Investigating Officer has recorded the

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statements of relevant witnesses and laid the charge sheet against the

petitioners herein and accused No.1 stating that they have committed

the aforesaid offence.

6. Mr. C. Raghu, learned Senior Counsel appearing for the

petitioners, would submit that the allegations made in the charge sheet

are against accused No.1 and that no offence is made out against the

petitioners herein. He would further submit that accused No.1 was in

intoxicated condition at the time of incident, but the same was not

mentioned in the charge sheet.

i) Learned senior counsel would further submit that the only

allegation levelled against the petitioners herein is that they did not

take precautions at the work place and that there was no sufficient

lighting. Except the said allegation, there is no other allegation

against the petitioners herein. Further, there is no nexus between the

alleged incident and commission of offence by the petitioners.

Petitioner No.1 herein happens to be the Director of the Company

which owns the subject vehicle, while petitioner No.2 herein is their

employee. Thus, the ingredients of the aforesaid offence do not attract

against petitioner No.1 herein.

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ii) Learned senior counsel would also submit that petitioner

No.2 herein did not present at the site when the incident had occurred

and the complaint does not disclose about his involvement also.

iii) Learned senior counsel would also submit that there are no

specific overt-acts attributed against the petitioners. There was no

abetment on the part of petitioners as alleged by the police. The

ingredients of Section - 304 (Part-II) of IPC do not attract against the

petitioners as alleged by the police. Thus, continuation of proceedings

in the aforesaid PRC against the petitioners is nothing but abuse of

process of Court and cause irreparable loss to them.

iv) In support of his contentions, learned senior counsel has

relied upon the decisions in State through PS Lodhi Colony, New

Delhi v. Sanjeev Nanda1 and Mahadev Prasad Kaushik v. State of

Uttar Pradesh2.

v) With the aforesaid submissions, the learned senior counsel

sought to quash the proceedings against the petitioners in the aforesaid

PRC.

. (2012) 8 SCC 450

. (2008) 14 SCC 479

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7. Learned Public Prosecutor would submit that there are

specific allegations against each of the accused including the

petitioners herein and the same are serious in nature. Any act or

omission done on behalf of the company, petitioner No.1 is

responsible for such acts as owner of the site. Petitioner No.2 herein

being the Supervisor of petitioner No.1 looking after the construction

activities is also solely held responsible for any act done on behalf of

petitioner No.1. There was sheer negligence on the part of the

petitioners herein in allowing accused No.1 to drive the subject

vehicle negligently without taking any precautions.

i) Learned Public Prosecutor further submits that Investigating

Officer has conducted investigation properly and on coming to a

conclusion that there was negligence on the part of petitioners, the

police made them as accused apart from the driver of crime vehicle.

ii) He would further submit that the Investigating Officer

having considered the statements of the witnesses recorded under

Section - 161 of the Cr.P.C. laid the charge sheet against the

petitioners herein. The material collected by the Investigating Officer

would attract the aforesaid offence against the petitioners herein. The

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contention of the petitioners herein that they had no intention in

causing the death of the deceased etc., are all triable issues and the

same have to be decided by the trial Court after full-fledged trial, but

not in a petition filed under Section - 482 of the Cr.P.C. The

petitioners can produce the evidence to that effect before the trial

Court. The acts of petitioners in allowing the driver to drive a vehicle

in rash and negligent manner and without any precautions will have an

impact on the society and, therefore, the proceedings cannot be

quashed at this stage.

iii) With the aforesaid submissions, the learned Public

Prosecutor sought to dismiss the present petition.

8. Perusal of the charge sheet would reveal that accused No.1

drove the crime vehicle in rash and negligent manner. Even the

petitioners herein also allowed accused No.1 to drive the crime

vehicle without taking pre-cautions as the said crime vehicle did not

have proper lighting which is also one of the reasons for causing the

death of the deceased.

i) As stated above, prima facie, there are specific allegations

against each of the accused in the charge sheet. Petitioner No.1 herein

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- accused No.2 is the Director of the Company which owns the crime

vehicle, while petitioner No.2 herein - accused No.3 is their employee.

ii) The Apex Court in Alister Anthony Pareira v.State of

Maharashtra3 had an occasion to deal with scope and ambit of

Sections - 279, 299, 300, 304 and 304 Part-II and also considered the

following questions:

"(i) Whether indictment on the two charges, namely, the offence punishable under Section 304 Part II IPC and the offence punishable under Section 338 IPC is mutually destructive and legally impermissible? In other words, whether it is permissible to try and convict a person for the offence punishable under Section 304 Part II IPC and the offence punishable under Section 338 IPC for a single act of the same transaction?

(ii) Whether by not charging the appellant of `drunken condition' and not putting to him the entire incriminating evidence let in by the prosecution, particularly the evidence relating to appellant's drunken condition, at the time of his examination under Section 313 of the Code, the trial and conviction of the appellant got affected?

(iii) Whether prosecution evidence establishes beyond reasonable doubt the commission of the

. (2012) 2 SCC 648

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offences by the appellant under Section 304 Part II, IPC, Section 338 IPC and Section 337 IPC?

(iv) Whether sentence awarded to the appellant by the High Court for the offence punishable under Section 304 Part II IPC requires any modification?"

iii) The Apex Court while discussing the constituent elements

of Part I and Part II of Section - 304 IPC, held as under:

"26. The above Section is in two parts. Although Section does not specify Part I and Part II but for the sake of convenience, the investigators, the prosecutors, the lawyers, the judges and the authors refer to the first paragraph of the Section as Part I while the second paragraph is referred to as Part II. The constituent elements of Part I and Part II are different and, consequently, the difference in punishment. For punishment under Section 304 Part I, the prosecution must prove: the death of the person in question; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such

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act of his was likely to cause death. In order to find out that an offence is `culpable homicide not amounting to murder' - since Section 304 does not define this expression - Sections 299 and 300 IPC have to be seen. Section 299 IPC reads as under:

"S.-299. - Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

27. To constitute the offence of culpable homicide as defined in Section 299 the death must be caused by doing an act:

(a) with the intention of causing death, or

(b) with the intention of causing such bodily injury as is likely to cause death, or

(c) with the knowledge that the doer is likely by such act to cause death.

28. Section 300 deals with murder and also provides for exceptions. The culpable homicide is murder if the act by which the death is caused is done: (1) with the intention of causing death, (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or (3) with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to

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cause death, or (4) with the knowledge that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. The exceptions provide that the culpable homicide will not be murder if that act is done with the intention or knowledge in the circumstances and subject to the conditions specified therein. In other words, the culpable homicide is not murder if the act by which death is caused is done in extenuating circumstances and such act is covered by one of the five exceptions set out in the later part of Section 300."

iv) Thus, to establish the offence under Section - 304 Part-II of

IPC, the prosecution has to prove the death of the person in question;

that such death was caused by the act of the accused and that he knew

that such act of his was likely to cause death.

v) The Apex Court has also referred to the principle laid down

in Empress of India v. Idu Beg [1881 (3) ALL 776], in which

meaning of criminal rashness and criminal negligence was explained.

Criminal rashness is hazarding a dangerous or wanton act with the

knowledge that it is so, and that it may cause injury but without

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intention to cause injury, or knowledge that it will probably be caused.

The criminality lies in running the risk of doing such an act with

recklessness or indifference as to the consequences. Criminal

negligence is the gross and culpable neglect or failure to exercise that

reasonable and proper care and precaution to guard against injury

either to the public generally or to an individual in particular, which,

having regard to all the circumstances out of which the charge has

arisen, it was the imperative duty of the accused person to have

adopted. After an elaborate discussion and on consideration of

various principle laid down by it in various other judgments, the Apex

Court held that indictment of an accused under Section - 304 Part II

and Section - 338 of IPC can co-exist in a case of single rash or

negligent act. There is no impediment in law for an offender being

charged for the offence under Section - 304 Part II of IPC and also

under Sections - 337 and 338 of IPC. The two charges under Section -

304 Part II of IPC and Section - 338 of IPC can legally co-exist in a

case of single rash or negligent act where a rash or negligent act is

done with the knowledge of likelihood of its dangerous consequences.

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vi) In State of Arunachal Pradesh v. Ramchandra Rabidas

@ Ratan Rabidas4, the Apex Court had an occasion to deal with

scope and ambit of provisions of M.V. Act and IPC, and also the

aspect that road traffic offences shall be dealt with only under the

provisions of the M.V. Act, and held that in cases of road traffic or

motor vehicle offences, prosecution under the provisions of IPC is

without sanction of law, and recourse to the provisions of the IPC

would be unsustainable in law. The Apex Court referring to various

provisions of IPC and also M.V. Act, held that M.V. Act is a

beneficial legislation, the primary objective being to provide a

statutory scheme for compensation of victims of motor vehicle

accidents; or, their family members who are rendered helpless and

disadvantaged by the untimely death or injuries caused to a member of

the family, if the claim is found to be genuine. The Act provides a

summary procedure for claiming compensation for the loss sustained

in an accident, which is otherwise applicable to suits and other

proceedings while prosecuting a claim before a civil Court. The IPC

is punitive and deterrent in nature. The principal aim and object is to

punish offenders for offences committed under the IPC. It further

. (2019) 10 SCC 75

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held that Sections - 304 Part II, 304A, 337 and 338 of IPC fall under

Chapter XVI - "Offences Affecting the Human Body", which makes

provision for offences relating to culpable homicide not amounting to

murder, causing death by negligence by doing any rash or negligent

act, and causing hurt or grievous hurt, by endangering the life or

personal safety of others. Where the rash or negligent driving results

in hurt or grievous hurt being caused to any person, an offence under

Sections - 337 or 338 of IPC is committed. Where the rash or

negligent driving, results in the death of a person, without the

knowledge that the said act will cause death, Section - 304A of IPC

would be applicable. When a person drives a vehicle so recklessly,

rashly or negligently that it causes the death of a person, and of which

he had knowledge as a reasonable man, that such act was dangerous

enough to cause death, he may be attributed with the knowledge of the

consequence, and may held liable for culpable homicide not

amounting to murder, which is punishable under Section - 304 Part II

of IPC.

a) The Apex Court further held with respect to Section - 304

Part II of IPC that, the prosecution has to prove that the death of the

person was caused by the act of the accused, and that he had

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knowledge that such act was likely to cause death. To constitute an

offence under this Section, the knowledge of the offender as required

under Section - 300 of IPC is to be proved and established. Therefore,

with the said findings, the Apex Court held that there is no conflict

between the provisions of the IPC and the M.V. Act. Both the

Statutes operate in entirely different spheres. The offences provided

under both the Statutes are separate and distinct from each other. The

penal consequences provided under both the statutes are also

independent and distinct from each other. The ingredients of offences

under the both statutes, as discussed earlier, are different, and an

offender can be tried and punished independently under both statutes.

The principle that the special law should prevail over the general law,

has no application in cases of prosecution of offenders in road

accidents under the IPC and M.V. Act.

b) It further held that there is no provision under the M.V. Act

which separately deals with offences causing death, or grievous hurt,

or hurt by a motor vehicle in cases of motor vehicle accidents.

Chapter - XIII of the M.V. Act is silent about the act of rash and

negligent driving resulting in death, or hurt, or grievous hurt, to

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persons nor does it prescribe any separate punishment for the same;

whereas Sections - 279, 304 Part II, 304A, 337 and 338 of IPC have

been specifically framed to deal with such offences. Section 26 of the

General Clauses Act, 1897 provides, "Where an act or omission

constitutes an offence under two or more enactments, then the

offender shall be liable to be prosecuted and punished under either or

any of those enactments, but shall not be liable to be punished twice

for the same offence." It is well settled that an act or an omission can

constitute an offence under the IPC and at the same time, be an

offence under any other law. With the said findings, the Apex Court

held that there is no bar under the M.V. Act or otherwise, to try and

prosecute offences under the IPC for an offence relating to motor

vehicle accidents.

vii) In view of the above said law laid down by the Apex

Court, to constitute an offence under Section - 304 Part-II of IPC, the

requirements are that such death was caused by the act of the accused

and that he knew that such act of his was likely to cause death.

9. In Sanjeev Nanda1 and Mahadev Prasad Kaushik2 relied

upon by the learned counsel for the petitioner pertain to after trial,

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whereas in the case on hand, trial yet to be commenced. Therefore,

the said decisions are in applicable to the facts of the case on hand.

10. The Apex Court in Kamal Shivaji Pokarnekar v. The

State of Maharashtra5 has categorically held that quashing criminal

proceedings was called for only in a case where complaint did not

disclose any offence, or was frivolous, vexatious, or oppressive. If

allegations set out in complaint did not constitute offence of which

cognizance had been taken by Magistrate, it was open to High Court

to quash same. It was not necessary that, a meticulous analysis of case

should be done before trial to find out whether case would end in

conviction or acquittal. If it appeared on a reading of complaint and

consideration of allegations therein, in light of the statement made on

oath that the ingredients of the offence are disclosed, there would be

no justification for High Court to interfere. The defences that might be

available, or facts/aspects which when established during trial, might

lead to acquittal, were not grounds for quashing complaint at

threshold. At that stage, only question relevant was whether

averments in complaint spell out ingredients of a criminal offence or

. AIR 2019 SC 847

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not. The Court has to consider whether complaint discloses that prima

facie, offences that were alleged against Respondents. Correctness or

otherwise of said allegations had to be decided only in trial. At initial

stage of issuance of process, it was not open to Courts to stifle

proceedings by entering into merits of the contentions made on behalf

of Accused. Criminal complaints could not be quashed only on

ground that, allegations made therein appear to be of a civil nature. If

ingredients of offence alleged against Accused were prima facie made

out in complaint, criminal proceeding shall not be interdicted.

11. In Skoda Auto Volkswagen India Private Limited v. The

State of Uttar Pradesh6, the Apex Court referring to the earlier

judgments rendered by it has categorically held that the High Courts

in exercise of its inherent powers under Section - 482 of Cr.P.C has to

quash the proceedings in criminal cases in rarest of rare cases with

extreme caution.

12. In view of the above, prima facie, there are specific

allegations against the petitioners herein. The matter is at trial stage.

All the aforesaid contentions are triable issues and the same are to be

considered by the trial Court during trial and are to be decided only

. AIR 2021 SC 931

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after full-fledged trial, but not in a petition filed under Section - 482 of

the Cr.P.C.

13. In view of the above authoritative pronouncement of law,

according to this Court, the petitioners failed to make out any ground

to quash the proceedings in P.R.C. No.7 of 2021 and, therefore, the

petition is liable to be dismissed.

14. The present Criminal Petition is, accordingly, dismissed.

As a sequel, miscellaneous petitions, if any, pending in the

Criminal Petition shall stand closed.

_________________ K. LAKSHMAN, J 28th July, 2022 Mgr