Tripura High Court
Sri Atin Saha vs The State Of Tripura Represented ... on 11 August, 2021
1
HIGH COURT OF TRIPURA
AGARTALA
AB 57 of 2021
Sri Atin Saha, resident of Shibnagar, Agartala, ----------Applicant(s)
West Tripura
onbehalf of KoushikMukherjee, son of Sri Himadri Mukherjee, of
Ramthakur Ashram road, P.S- East Agartala, Dist- West Tripura
----------Accused(s)
Versus
The State of Tripura represented by the Public Prosecutor,
Government of Tripura
---------Respondent(s)
BEFORE
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
For Applicant (s) : Mr. B.Deb, Adv.
For Respondent(s) : Mr. Ratan Datta, PP.
ORDER
11.08.2021
[1] One Atin Saha of Shibnagar, Agartala has filed this
application under Section 438 Cr.P.C. on behalf of accused Koushik
Mukherjee for granting pre-arrest bail to the accused in East Agartala
P.S. Case No.2021 EAG 071 which has been registered against the said
accused for having committed offence punishable under Sections 279
and 304 Part-II IPC and Section 184 and 187 of the Motor Vehicles
Act.
[2] Heard Mr. B.Deb, learned counsel appearing for the
petitioner. Also Heard Mr. Ratan Datta, learned Public Prosecutor
who is representing the State respondent.
AB 57 OF 2021
[3] Similar application of the accused was rejected by this
court after considering the case on merit vide order dated 28.07.2021 in
AB 50 of 2021. With a view to recapitulate the facts of the case and the
grounds on which the earlier application of the petitioner was rejected,
the relevant extract of the said order may be reproduced which is as
under:
".........[3]The factual back ground of the case is as
under:
Doctor Smt. Priyanka Sinha, daughter of
Doctor Prasenjit Sinha of Banamali Pur, Agartala
lodged a written FIR with the Officer-in-Charge of
East Agartala Police Station on 15.06.2021 at around
6.30 P.M. In her FIR Smt. Sinha alleged that on
14.06.2021, her father left home between 7.45 and 8.15
A.M. for offering prayer in the nearby Loknath
Ashram. On his way back home, he was walking along
his left side of the road. At that time a speeding car
bearing registration no.TR-01-AT-0325 hit his father.
As a result, her father died at the spot. Driver fled
away with his vehicle after the accident. According to
her, a delivery boy of Zomatoo witnessed the accident
who had also taken photograph of the offending
vehicle. The informant daughter of the deceased
further alleged that the accident occurred due to rash
and negligent driving of the offending vehicle.
[4]Based on her FIR, East Agartala P.S. case No.2021
EAG 071 under Sections 279 & 304A IPC and Sections
184 & 187 of the Motor Vehicles Act was registered
and the case was taken up for investigation.
[5]Mr.B.Deb, counsel appearing for the petitioner
submits that the accused had no intention to kill the
deceased and therefore, Section 304, Part II IPC has no
application in the case. Counsel contends that Section
304 A IPC is the specific penal provision to deal with
the cases of death caused by negligence. An offence
under Section 304A IPC is a bailable offence. Petitioner
is, therefore, entitled to bail.
[6]According to Mr.Deb, learned counsel, Section 304,
Part-II IPC, has been imported by the investigating
agency in order to prevent release of the accused on
bail. Counsel refers to the petition of the IO whereby
AB 57 OF 2021
the IO sought for the permission of the CJM, Agartala
to add section 304, Part-II IPC and carry out
investigation for the said offence. In the said petition
the IO noted that petitioner was learning driving with
the assistance of its owner Kamal Chakraborty and as
a result of his negligent driving, the accident occurred
and Doctor Prasenjit Sinha died. Counsel contends that
statement of the IO is incorrect because petitioner was
already possessing a driving license bearing
No.1420110012345 which was issued by the Joint
Transport Commissioner, West Tripura, Agartala on
06.03.2019 and the said license is valid up to 19.10.2032.
Counsel has annexed a copy of the said driving license
along with the bail petition.
[7]Having placed reliance on the decision dated
11.11.2020 of the High Court of Karnataka in Sri Jerry
Paul vs. State of Karnataka [Crl. Petition No.5963 of
2020] counsel contends that the investigating agency in
the present case issued a notice of appearance under
Section 41A Cr.P.C. to the petitioner since his arrest
was not required in the case. According to learned
counsel, Section 41A contemplates that the police
officer shall, in all cases where arrest is not required
under the provisions of sub-section (1) of Section 41,
issue a notice to the person against whom a reasonable
complaint has been made, or credible information has
been received or a reasonable suspicion exists that he
has committed cognizable offence to appear before the
police. Learned counsel, therefore, argues that since
notice has been issued under Section 41A, arrest and
detention of the accused is not required and as such the
accused can be enlarged on pre-arrest bail.
[8]According to learned counsel, in the case of Jerry
Paul (supra), Karnataka High Court also held that
once notice has been issued under Section 41 A Cr.P.C.,
that itself makes it clear that arrest of the accused was
not required. Counsel also relies on the decision of this
High Court in Jhunu Das vs. State of Tripura reported
in (2014) 2 TLR 566 and contends that ratio decided in
the case of Jhunu Das is applicable to the present case
which entitles the petitioner to release on pre arrest
bail.
[9] Mr.Ratan Datta, learned PP, on the other hand,
robustly opposed the bail application contending that
petitioner has not made out any ground for his release
on pre arrest bail. It is contended by Mr.Datta, learned
PP, that similar application was moved by the
petitioner before the Sessions Judge, West Tripura,
AB 57 OF 2021
Agartala which was registered as BA No.128 of 2021
and the learned Sessions Judge after considering the
submissions of the counsel of the parties, turned down
the said application by a detailed and reasoned order
dated 07.07.2021. Counsel submits that owner of the
vehicle in his statement recorded before the Judicial
Magistrate (Court No.1) at Agartala has categorically
stated that at the material time the accused petitioner
drove his vehicle in a high speed 'to brush up his
driving skill'. As a result, the vehicle dashed the
deceased near Loknath Ashram.
[10]Learned PP has also referred to the police
statements of several other witnesses including the eye
witnesses. Supporting the case of rash and negligent
driving, one of the eye witnesses has stated that the
accused stopped his vehicle after hitting the deceased
on the road and seeing his alarming condition, he fled
away with the vehicle. It has been further stated by the
said witness that while fleeing away, the vehicle again
hit the deceased who was lying ahead of the vehicle.
[11]According to learned PP, the incriminating
materials collected by the investigating agency have
clearly made out a case of reckless and negligent
driving against the petitioner and the said materials
have also prima facie established that the petitioner
knew that such reckless and negligent driving of him
was likely to cause death. Learned PP, therefore,
submits that a clear case under Section 304 Part-II IPC
has been made out and the petitioner does not deserve
the benefit of pre arrest bail in this case.
[12]It is further contended by the PP that despite
receiving notice under Section 41A Cr.P.C., the
petitioner did not turn up before the investigating
police officer. As a result of his non cooperation, it has
been difficult to carry out a fair and smooth
investigation of the case.
[13]Mr.Datta, learned PP further contends that Section
134 of the Motor Vehicles Act under clause(a) casts a
duty on the driver of the vehicle or the person in
charge of the vehicle to take all reasonable steps to
secure medical attention for the injured person unless
it is not practicable to do so on account of the mob fury
or any other reason beyond his control. It is not a case
of the petitioner that he could not take care of the
injured on account of mob fury or for any other
reason. Rather as per eye witness version, the accused
stopped his vehicle after hitting the deceased and seeing
his alarming condition, he fled away with his vehicle in
high speed without showing the slightest sympathy to
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the injured and while fleeing away, the deceased was
again hit by his vehicle. Counsel contends that in many
cases conviction under Section 304 Part-II IPC for
causing death by rash and negligent driving have been
upheld by the Hon'ble Supreme Court. Placing reliance
on the decision of the Apex Court in Alister Anthony
Pareira vs. State of Maharashtra reported in (2012) 2
SCC 648, counsel submits that in this case the Apex
Court has succinctly held that causing death of a
person by rash and negligent driving with knowledge of
the consequence of such act would fall under Section
304 Part-II IPC. Learned PP has referred to
paragraphs 42 and 43 of the said judgment wherein the
Hon'ble Apex Court has held as under:
"42. A person, responsible for a reckless or
rash or negligent act that causes death which
he had knowledge as a reasonable man that
such act was dangerous enough to lead to
some untoward thing and the death was likely
to be caused, may be attributed with the
knowledge of the consequence and may be
fastened with culpability of homicide not
amounting to murder and punishable
under Section 304 Part II IPC. There is no
incongruity, if simultaneous with the offence
under Section 304 Part II, a person who has
done an act so rashly or negligently
endangering human life or the personal safety
of the others and causes grievous hurt to any
person is tried for the offence under
Section 338 IPC.
43. In view of the above, in our opinion there
is no impediment in law for an offender being
charged for the offence under Section 304
Part II IPC and also under Sections 337 and
338 IPC. The two charges under Section 304
Part II IPC and Section 338 IPC can legally
coexist 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."
[14]It is finally argued by Mr. Datta, learned PP that
without custodial interrogation of the petitioner it
would be difficult for the investigating agency to carry
out a full and fair investigation of the case. Learned
counsel, therefore, urges the court to reject the bail
application of the accused.
[15]Considered the submissions of learned counsel
representing the parties. Perused the prosecution
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papers including the case diary. It is true that initially
the investigating agency issued notice of appearance to
the accused under Section 41A Cr.P.C. on 20.06.2021
directing him to appear at the police station on
22.06.2021. But the accused did not comply with the
said notice. Therefore, the contention of the counsel of
the accused petitioner that once notice under Section
41A Cr.P.C. has been issued to the accused, he cannot
be arrested in view of the bar under Section 41A
Cr.P.C. does not gain ground.
[16]The materials placed before the court particularly
the statement of the owner of the offending vehicle
recorded in court under Section 164(5) Cr.P.C reveals
that the owner of the offending vehicle is an eye witness
to the occurrence because he was occupying the front
seat in the vehicle beside the driver. He has
categorically stated that at the material time the
petitioner was driving the vehicle at a high speed 'to
brush up his driving skill'. There is, therefore, merit in
the submission of learned PP that despite knowing it
fully well that the road on which the petitioner was
driving his vehicle was one of the busiest roads in the
city, the petitioner was not careful in driving the
vehicle. As a result, his vehicle hit Doctor Prasenjit
Sinha and caused the loss of his life. The facts and
circumstances presented before the court has made out
a strong prima facie case under Section 304 part-II IPC
against the accused. The Hon'ble Supreme Court has
elucidated the parameters for the grant of anticipatory
bail in several decisions. In Siddharam Satilingappa
Mhetre vs.State of Maharashtra reported in (2011) 1
SCC 694: (AIR 2011 SC 312) the Supreme Court has
laid down the parameters to be considered for granting
anticipatory bail which are as under:
"112. [...]
(i) the nature and gravity of the accusation
and the exact role of the accused must be
properly comprehended before arrest is made;
(ii) the antecedents of the applicant
including whether the accused has previously
undergone imprisonment on a conviction by a
court in respect of a cognizable offence;
(iii) the possibility of the applicant to fleeing
from justice; the possibility of the accused's
likelihood to repeat similar or[the] other
offences;
(iv) where the accusations have been made
AB 57 OF 2021
only with the object of injuring or humiliating
the applicant by arresting him or her;
(v) impact of the grant of anticipatory bail
particularly in cases of large magnitude
affecting a very large number of people;
(vi) The court must evaluate the entire
available material against the accused very
carefully. The court must also clearly
comprehend the exact role of the accused in the
case. The cases in which the accused is
implicated with the help of Sections 34 and
149 of the Penal Code, 1860 the court should
considered with even greater care and caution
because overimplication in the cases is a matter
of common knowledge and concern;
(vii) while considering the prayer for grant
of anticipatory bail, a balance has to be struck
between two factors, namely, no prejudice
should be caused to the free, fair and full
investigation and there should be prevention of
harassment, humiliation and unjustified
detention of the accused;
(viii) The court to consider reasonable
apprehension of tampering of the witnesses or
apprehension of threat to the complainant;
(ix) frivolity in prosecution should always
be considered and it is only the element of
genuineness that shall have to be considered in
the matter of grant of bail and in the event of
there being some doubt as to the genuineness of
the prosecution, in the normal course of events,
the accused is entitled to an order of bail."
[17]In Jai Prakash Singh vs. State of Bihar and
Another reported in (2012) 4 SCC 379, the Apex Court
referred to its earlier decision in the case of Siddharam
(supra) and held in paragraph 19 of the judgment that
anticipatory bail can be granted only in exceptional
circumstances where the court is prima facie of the
view that applicant has falsely been enroped in the
crime and would not misuse his liberty. Observation of
the court is as under:
"19. Parameters for grant of anticipatory bail in
a serious offence are required to be satisfied and
further while granting such relief, the court
must record the reasons therefore. Anticipatory
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bail can be granted only in exceptional
circumstances where the court is prima facie of
the view that the applicant has falsely been
enroped in the crime and would not misuse his
liberty. (See: D.K. Ganesh Babu v. P.T.
Manokaran (2007) 4 SCC 434 :(2007) 2 SCC(Crl)
345; State of Maharashtra v. Mohd. Sajid Husain
Mohd. S. Husain (2008) 1 SCC 213 (2008) 1 SCC
(Crl) 176; and Union of India v. Padam Narain
Aggarwal, (2008) 13 SCC 305: (2009) 1 SCC (Crl)
1."
[18]I have considered the nature of the offence, role of
the petitioner in the commission of the offence and the
likelihood of his influencing the course of investigation
and all other parameters laid down by the Apex Court
in the judgments cited to supra. It would not be
appropriate to have a detailed discussion of the
statements of the witnesses recorded by the
investigating agency at this stage. Suffice it to say that
the materials available on record prima facie support
the prosecution case that the accused petitioner was
absolutely negligent and reckless in driving his vehicle
on a public road and as a result of his negligence and
recklessness, the life of a person was lost. Prosecution
has also made out a prima facie case that the accused
was conscious of the fact that his recklessness was
likely to cause fatal accident and death. It is also
evident that the accused petitioner did not comply with
the terms of notice issued by the investigating agency
under Section 41A Cr.P.C. Accused cannot derive any
benefit from the decision of this court in the case of
Jhunu Das (supra) because facts of the two cases are
entirely distinguishable.
[19]In these circumstances, submission of learned PP
that a full and fair investigation of the case would be
difficult without arrest and custodial interrogation of
the accused gains ground.
[20]In view of what is stated above, this court is of the
view that the accused in this case does not deserve the
benefit of anticipatory bail under Section 438 Cr.P.C.
As a result, his application for anticipatory bail stands
rejected."
[4] Counsel appearing for the petitioner submits that fresh
application under Section 438 Cr.P.C has been filed only on genuine
medical grounds which have arisen subsequent to the rejection of his
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earlier bail application in AB 50 of 2021. Counsel contends that
petitioner has undergone surgery in ILS hospital at Agartala on
06.08.2021 as an indoor patient for removal of his gall bladder stone
and he is in the hospital till date for post operative treatment and care.
Counsel also contends that Smt. Anannya Saha (Mukherjee), wife of
the petitioner has tested Covid positive in Rapid Antigen Test (RAT)
conducted by AGMC and GBP Hospital, Agartala on 04.08.2021 who
is in home isolation at this moment. Counsel, therefore, submits before
the court to grant relief to the accused by granting him pre arrest bail
under Section 438 Cr.P.C on any condition, whatsoever, in exercise of
the discretionary power vested on this court considering the crises and
genuine medical grounds brought forward by the petitioner.
[5] Mr.Ratan Datta learned PP, opposes the bail application
and submits that similar application of the petitioner was rejected by
this court only on 28.07.2021. According to Mr. Datta, learned PP,
except the medical grounds, petitioner could not make out any other
ground for the court to reconsider its earlier order.
[6] Having referred to the document dated 07.08.2021 issued
from the ILS Hospital, Agartala [Annexure-7] at page 36 & 37,
learned PP submits that there is no mention in the said document that
surgery was done in the hospital for removal of his gall bladder stone
on 07.08.2021 and moreover, the said document at page 37 states that
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the patient was discharged on 07.08.2021. Learned PP therefore, urges
the court for rejecting the bail application.
[7] As already stated, Mr.B.Deb, learned counsel robustly
submits that the said document dated 07.08.2021 issued from the ILS
hospital, if correctly read, states that the patient was admitted in the
hospital on 06.08.2021 and date of his operation (OP) is 07.08.2021.
Counsel submits that since the accused has not yet fully recovered, he
is still retained in the hospital.
[8] Heaving heard learned counsel of the parties and the
materials placed on record before this court, I am of the view that in
view of the genuine medical grounds, accused Kaushik Mukherjee
may be enlarged on bail for 03 (three) weeks. Accordingly, the accused
in the event of his arrest shall be released on bail on his furnishing bail
bond of Rs.30,000/- with 01 local surety of the like amount to the
satisfaction of the IO till 01.09.2021.
[9] During this period he will not try to influence any of the
witnesses in any manner whatsoever and he will extend the fullest
cooperation to the investigating agency after his release from hospital.
[10] List the matter on 01.09.2021. The IO shall file updated
CD on the next date.
JUDGE
Saikat Sarma, PA
AB 57 OF 2021
