George Linson v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 24TH DAY OF MARCH 2015/3RD CHAITHRA, 1937** **Crl.MC.No. 169 of 2013 ()** **--------------------------------** **AGAINST THE ORDER IN CP 40/2012 of J.M.F.C.-II, ALUVA,IN CRIME NO. 9993/2011 OF TRAFFIC POLICE STATION EAST, ERNAKULAM.** ## **PETITIONER(S)/ACCUSED:** **-------------------------------------** **GEORGE LINSON, S/O. LINSON JOSEPH, ATTOKKARAN HOSUE, MANIMALA ROAD, EDAPPALLY, ERNAKULAM DISTRICT.** **BY ADV. SRI. BABU S. NAIR** ## **RESPONDENT(S)/STATE:** **----------------------------------** **THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31, THROUGH THE STATION HOUSE OFFICER, CITY TRAFFIC POLICE STATION, KOCHI.** **BY PUBLIC PROSECUTOR SMT. V.H. JASMINE** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24-03-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **:2:** _Crl.MC.No. 169 of 2013_ ## **APPENDIX** **PETITIONER(S) EXHIBITS :** **ANX.A : TRUE COPY OF THE F.I.R. IN CRIME NO. 9993/2011 OF THE CITY TRAFFIC POLICE STATION, KOCHI, DATED 30-7-2011.** **ANX.B : TRUE COPY OF THE FINAL REPORT/CHARGE IN CRIME NO. 9993/2011 OF THE CITY TRAFFIC POLICE STATION, KOCHI.** **RESPONDENTS' EXHIBITS : NIL** _// True Copy//_ _P.A. to Judge_ ss ## **K. RAMAKRISHNAN, J.** . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crl.M.C. No.169 of 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dated this the 24[th] day of March, 2015 ## **O R D E R** Accused in C.P.40/2012 on the file of the Judicial First Class Magistrate Court-II, Aluva, has filed this petition to quash the proceedings under Section 482 of the Code of Criminal Procedure (hereinafter called 'the Code'). 2. It is alleged in the petition that the petitioner is the accused in Annexure-A first information report in Crime No.9993/2011 of City Traffic Police Station, Kochi, alleging commission of the offence under Section 304 of the Indian Penal Code. 3. The case of the prosecution was that, on 30.07.2011 at about 09.05 P.M., the petitioner drove the car with Reg.No.KL-07/BN-1131 in a rash and negligent manner through the service road on the western side of the national highway and when it reached the place of occurrence, it collided with a motor bike resulted in the death of the rider Crl. M.C. No.169 of 2013 2 of the motor bike by name Manoj and caused injury to another person, who was travelling as a pillion rider and thereby he had committed the above said offence. 4. After investigation, Annexure-B final report was filed for the offence under Section 304 of the Indian Penal Code and it was taken on file as C.P.40/2012 on the file of the Judicial First Class Magistrate Court-II, Aluva and pending before that court. According to the petitioner, it is only a motor vehicle accident caused at the most due to reckless and negligent driving of the car by the petitioner. Even if the entire allegations of the prosecution is accepted, it will not amount to culpable homicide not amounting to murder punishable under Section 304 of the Indian Penal Code. Further in order to attract the offence under Section 304 of the Indian Penal Code, it must be alleged that, he had the intention to cause that particular act and also the knowledge that it is likely to cause death of a person and such allegations are lacking in the case. Further rash and 3 Crl. M.C. No.169 of 2013 negligent driving and death due to negligent act and culpable homicide not amounting to murder will not go together and they are mutually exclusive and ingredients are entirely different and this is clear from the decision reported in **Prabhakaran v. State of Kerala [2007(3) KLT 400 (SC)]** . Even assuming that, the entire allegations of prosecution is accepted, no offence under Section 304 of the Indian Penal Code is attracted and proceeding with the case will amount to abuse of process of court and the offence may at the most fall under Section 304(A) of the Indian Penal Code and not under Section 304 of the Indian Penal Code. The petitioner has no other remedy, except to approach this court, seeking the following relief: “It is most humbly prayed that this Hon'ble Court may be pleased to quash the entire proceedings in C.P.No.40/2012 of the JFCM-II, Aluva, Kochi, in the inteerest of justice”. 5. Heard the counsel for the petitioner Smt. Smitha Babu and Public Prosecutor Smt. V.H. Jasmine. 4 Crl. M.C. No.169 of 2013 6. The counsel for the petitioner submitted that, even assuming that the entire allegations are accepted, no offence under Section 304 of the Indian Penal Code is attracted. Further what is stated by the witnesses is that, the vehicle was driven in a rash and negligent manner and hit against the motor cycle driven by the rider of the motor cycle and on account of the same, the rider and pillion rider of the motor cycle sustained grievous injuries and the rider of the motor cycle succumbed to the injuries. There is no intention on the part of the driver of the car who is the petitioner herein to commit the crime or he had the knowledge that his act is likely to cause death of a particular person. In the absence of such evidence or allegations, the offence is not attracted. The learned counsel has relied on the decision reported in **Prabhakaran v. State of Kerala [2007(3) KLT 400 (SC)]** , **Benny v. State of Kerala (1991(1) KLT 695), Sushil Ansal v. State Through CBI (2014 KHC 4153)** . Crl. M.C. No.169 of 2013 5 7. On the other hand, the learned Public Prosecutor has submitted that, the witnesses have deposed that, he had driven the vehicle with a knowledge that it is likely to cause death, and the other things are matter for evidence. It is not a fit case to invoke Section 482 of the Code of Criminal Procedure to quash the proceedings at this stage and she had relied on the decision reported in **State Through PS Lodhi Colony, New Delhi v. Sanjeev Nanda [2012(8) SCC 450]** . 8. It is an admitted fact that police had registered Annexure-A first information report as Crime No.9993/2011 of City Traffic Police Station, Kochi, against the identifiable driver of the car KL-7/BM-1131, alleging offence under Section 304 of the Indian Penal Code. After investigation, police filed Annexure-B final report alleging that the petitioner had committed the offence punishable under Section 304 of the Indian Penal Code and during investigation it was revealed that, it was the petitioner who Crl. M.C. No.169 of 2013 6 had driven the vehicle at the relevant time and he was shown as accused and the case was taken on file as C.P.No.40/2012 on the file of the Judicial first Class Magistrate Court-II, Aluva and it is pending before that court. ## 9. The allegation in the final report was as ## follows: “Nkf] f-R£ Nkv¡¾]RWLºV B¡R¨Ë]sOU oqeU vRq yUnv] ¨LU IÐOç Ar]SvLRa KL-7/ BN 1131-LU jÒ¡ WLr]R£ RRNcvrLp] \Oofs vz]\ÿV kLsLq]vŸU CaÕç] RRmkLyV SrLc]jO ka]´LrO vwU y¡v}yV SrLRc Rf¨O j]ÐOU vaS¨LŸV AèÈSpLRa Af]SvYfp]¤ KLa]\ÿO vÐV CaÕç] SjL¡¾O v]Ssæ^V \OãOkLaO Wqp]¤ Rf¨O va¨Lp] W]a¨OÐ RRvã]s&CaÕç] RRmkLyV SrLc]jO ka]´LrO vwU yoLÍqoLp] ò]f] R\áOÐ CTSð¦ m]¤c]°]jO Rf¨O vwU a] SrLc]jO ka]´LrO vwU ò]f] R\áOÐ KTC WÒj] vW òs¾]R£ oO¢vwU SYã]R£ va¨O vwU k]sær]R£ Rf¨O W]u¨O oPsp]¤ j]ÐOU 10.55 o}ã¡ va¨O W]u¨O oLr]pOU Bpf] jO va¨O vwU a] SrLc]jO ka]´LrO vwU SrLcV oL¡^]j]¤ ò] f] R\áOÐ EM 19/9 IÐ jÒrOç SWL¦NW}ãV CsNW›]WV SkLð] R£ \OvŸ]¤ j]ÐOU 8.95 o}ã¡ Rf¨O W]u¨O oLr]pOU a] SrLc]jO cm W]u¨O vwU aL¡ I£]¤ j]ÐOU 55 SjRq ka]´LrO oLr]pOU Crl. M.C. No.169 of 2013 7 WLeOÐ aL¡ SrLRc va¨O j]ÐOU RfS¨LŸV KLe¨P¡ v]Ssæ^"V.” 10. Section 304 and 304(A) of the Indian Penal ## Code reads as follows: **304. Punishment for culpable homicide not amounting to murder** .- Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cuase death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. **304A. Causing death by negligence** .- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 11. In the decision reported in **State Through PS Lodhi Colony, New Delhi v. Sanjeev Nanda [2012 (8) SCC 450]** , the Hon'ble Supreme Court has considered the question as to whether for death caused in a motor vehicle accident, the driver can be prosecuted for the 8 Crl. M.C. No.169 of 2013 offence under Section 304 Part-II of the Indian Penal Code and the Hon'ble Supreme Court has observed that, if the vehicle was driven at high speed and if the accused had sufficient knowledge that the action is likely to cause death and such an action would in the facts and circumstances of the case resulted in death of a person, then, it will fall under Part-II of Section 304 of the Indian Penal code. Further for convicting the offence under Part-II of Section 304 of the Indian Penal Code, the intention is not required, intention need not be proved and what is to be proved by the prosecution is that, the accused had the knowledge that his action is likely to cause death. 12. In the decision reported in Prabhakaran's case (supra), the Hon'ble Supreme Court has considered the question of distinction between the rashness and culpable negligence. It is observed that, criminal rashness means hazarding dangerous or wanton act with the knowledge that, it is dangerous or wanton and further 9 Crl. M.C. No.169 of 2013 knowledge that, it may cause injury, but done without any intention to cause injury or knowledge that it would probably be caused. The criminality lies in such a case in running the risk of doing such act with recklessnes or indifference as to the consequences. Criminal negligence on the other hand is a gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to public generally or individual in particular which having regard to all the circumstances of which the charge has been arisen, it was the imperative duty of the accused person to have adopted. 13. In the decision reported in **Benny v. State of Kerala [1991(1) KLT 695]** , it has been observed that, Section 304 is not attracted where intention to cause death or knowledge that the act done will likely or in all probability cause death is there. It was further observed that, Section 222 of the Code of Criminal Procedure cannot be attracted because Section 304(A) is not a minor offence Crl. M.C. No.169 of 2013 10 constituting only some of the several particulars of major offence punishable under second Part of Section 304. Both are independent and mutually exclusive offences. This is not a case in which Section 221 of the Code could be attracted. There is no question of any doubt regarding the offence which the facts will constitute. In a charge for an offence under Section 302 or 304, it is not possible to enter conviction for the offence under Section 304(A) without a charge under that Section. That is clear from illustration also. Section 221 is applicable only in cases where a single act or series of acts is of such a nature that is doubtful which of several offences, the facts which can be proved will constitute. 14. In the decision reported in **Sushil Ansal v. State Through CBI (2014 KHC 4153)** , the Hon'ble Supreme Court has considered the question as to what constitute criminal negligence, so as to attract the offence under Section 304(A) of the Indian Penal Code. Crl. M.C. No.169 of 2013 11 15. All these decisions were rendered on the basis of the evidence available on record, not at the stage of quashing the proceedings. In this case, I have gone through the entire CD statement of the witnesses and they have categorically stated that, the vehicle was driven at high speed in a careless manner with the knowledge that his act is likely to cause death of a person and with that knowledge he drove the vehicle and hit against the motor cyclist and caused his death. So the statement of the witnesses will go to show that they have categorically stated that the accused had done this act with a knowledge that his act is likely to cause death of some person, which is an ingredient to be alleged by the prosecution for attracting the offence under Section 304 Part-II of the Indian Penal Code. At this stage, court need only to consider whether the allegations and the evidence collected by the investigation agency is sufficient to attract the offence under Section 304 of the Indian Penal Code and not to consider as to whether that is sufficient for Crl. M.C. No.169 of 2013 12 conviction. Once the court is satisfied that the statement of the witnesses are sufficient to attract the offence under Section 304 of the Indian Penal Code, then court should be slow in quashing the proceedings and it is for the trial court to consider the question on the basis of evidence to ascertain as to whether that is sufficient to convict the accused and that is not the lookout of the High Court while exercising the power under Section 482 of the Code of Criminal Procedure. 16. In view of the discussions made above, this court feels that, it is not a fit case to invoke the power under Section 482 of the Code of Criminal Procedure to quash the proceedings, as the allegations and the evidence collected by the investigation agency and the statement of witnesses categorically show that, the offence will fall under Section 304 of the Indian Penal Code and in case the court wants to frame charge, court is entitled to frame additional or alternate charge under Section 304(A) of the Indian Crl. M.C. No.169 of 2013 13 Penal Code as well. If ultimately on the basis of evidence is likely to come a different conclusion as has been held in the decision reported in **Benny v. State of Kerala [1991(1) KLT 695]** . So the petitioner is not entitled to get the relief claimed and the same is liable to be dismissed. In the result, the petition is dismissed. Interim order of stay granted is vacated and Crl.M.A.No.277/2013 is dismissed. Office is directed to communicate this order to the concerned court, immediately. Sd/- ## **K. RAMAKRISHNAN, JUDGE** // True Copy// P.A. to Judge ss