Rajesh R. v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD WEDNESDAY, THE 20TH DAY OF AUGUST 2014/29TH SRAVANA, 1936 Crl.MC.No. 3975 of 2013 () --------------------------CC 867/2013 of JUDICIAL FIRST CLASS MAGISTRATE COURT.,KOLENCHERRY CRIME NO.293/2012 OF CHOTTANIKKARA POLICE STATION PETITIONER(S)/ACCUSED: -------------------------- RAJESH R. AGED 29 YEARS S/O.REGHUNADANPILLAI, THENGUVILA HOUSE ADICHANALLOOR KOLLAM NOW RESIDING AT PUSHPAVILASAM HOUSE, KALLUVATHUKKAL KARANCODE P.O., KOLLAM-691579. BY ADVS.SRI.P.N.SUKUMARAN SRI.JAISON JOSEPH SRI.V.M.SAJAN RESPONDENT(S)/STATE: ---------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM REPRESENTING SUB INSPECTOR OF POLICE CHOTTANIKKARA POLICE STATION. BY PUBLIC PROSECUTOR SHRI JUSTIN JACOB THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05.08.2014 , THE COURT ON 20-08-2014 PASSED THE FOLLOWING: Crl.MC.No. 3975 of 2013 () --------------------------- ## APPENDIX ## PETITIONER(S)' EXHIBITS ------------------------------------- ANNEXURE-A1: CERTIFIED COPY OF THE F.I.R. AND F.I.STATEMENT IN CRIME NO.293/2012 OF CHOTTANIKKARA POLICE STATION. ANNEXURE-A2: TRUE PHOTOSTAT COPY OF THE ORDER IN CRL.M.C.NO.2328 OF 2012 ON THE FILE OF PRINCIPAL SESSIONS COURT ERNAKULAM. ANNEXURE-A3: TRUE PHOTOSTAT COPY OF THE RECEIPT ISSUED FROM THE JUDICIAL FIRST CLASS MAGISTRATE COURT KOLENCHERRY EVIDENCING THE RECEIPT OF RS.35,000/-. ANNEXURE-A4: CERTIFIED COPY OF CHARGE SHEET IN C.C.NO.867/2013 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERRY. RESPONDENT(S)' EXHIBITS: NIL --------------------------------------- //TRUE COPY// ## **“C.R.”** ## **A.HARIPRASAD, J.** **-------------------------------------Crl.M.C. No.3975 of 2013** **-------------------------------------Dated this the 20[th] day of August, 2014.** ## **ORDER** Petition filed under Section 482 of the Code of Criminal Procedure (in short, “Cr.P.C.”). 2. Accused in Crime No.293 of 2012 of Chottanikkara Police Station registered under Section 279 of the Indian Penal Code (in short, “IPC”) and Section 3(2)(a) of the Prevention of Damage to Public Property Act, 1984 (in short, “the PDPP Act”) seeks quashment of the charge under Section 3(2)(a) of the PDPP Act in Annexure-A4 final report. 3. Heard Shri P.N.Sukumaran, learned counsel for the petitioner and Shri Justin Jacob, learned Public Prosecutor. 4. The allegations, in brief, are as follows: The petitioner on 15.04.2012 at about 11.00 a.m. drove a mini lorry through Kochi-Madhura National High Way in a rash and negligent manner. As a result of the rash driving, the vehicle went off the road and hit on an electric post, made of teak wood and carrying 11 KV electric line, and thereby caused damage to a tune of `35,000/- to the Kerala State Electricity Board. Annexure-A1 is 2 Crl.MC No.3975/2013 the first information report. After investigation, Police filed Annexure-A4 final report. Learned Judicial First Class Magistrate, Kolencherry took cognizance of the case and it is pending in C.C.No.876 of 2013. 5. Learned counsel for the petitioner contended that the two offences charged against the petitioner are incongruous to one another as the genesis of the offences are entirely different. According to the learned counsel for the petitioner, essence of the offence under Section 279 IPC is rash or negligent driving/riding of a vehicle on a public way. Whereas the core of the offence under Section 3(2)(a) of the PDPP Act is committing mischief and thereby causing damage to public property. Learned counsel further contended that in the case of Section 279 IPC, no intention or knowledge is required to attract the offence nor they are attributable to an accused involved in the offence. What is required therein is primarily an allegation that the accused drove or rode a vehicle rashly or negligently through a public way so as to endanger human life, etc. But, in the case of a person roped in an offence under Section 3(2)(a) of the PDPP Act, all the ingredients of mischief as defined in Section 425 IPC will have to be alleged and proved. Per contra, learned Prosecutor contended that both the penal Sections are not mutually exclusive and there is nothing wrong in charging the petitioner with both the offences. 3 Crl.MC No.3975/2013 6. Before delving into the legal aspects, it is apposite to take note of the relevant provisions of law involved in this case. ## 7. Section 279 IPC reads as follows: _“_ _**Rash driving or riding on a public way** .- Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”_ 8. Section 3 of the PDPP Act is to the following effect: ## _“_ _**Mischief causing damage to public property** .-_ _(1) Whoever commits mischief by doing any act in respect of public property other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine._ _(2) Whoever commits mischief by doing any act in respect of any public property being-_ _(a) any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy; (b) any oil installations;_ _(c) any sewage works;_ - _(d) any mine or factory;_ 4 Crl.MC No.3975/2013 _(e) any means of public transportation or of telecommunications, or any building, installation or other property used in connection therewith,_ _shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine:_ _Provided that the Court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months”_ 9. It is pertinent to note that the key word appearing in Section 3 (2) of PDPP Act, viz., 'mischief' has not been defined in the Act. Section 2 (a) of the PDPP Act shows that the word 'mischief' shall have the same meaning as defined in Section 425 IPC. Therefore, the definition of the term 'mischief' in Section 425 IPC is extracted hereunder for easy understanding: _“_ _**Mischief** .-Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”._ _Explanation 1.-It is not essential to the offence_ 5 Crl.MC No.3975/2013 _of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not._ _Explanation 2.-Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.”_ 10. To begin with, we shall consider the essentials required to attract an offence under Section 279 IPC. This Section requires two essentials; viz., (a) driving or riding of a vehicle on any public way and (b) such driving must be so rash or negligent as to endanger human life or is likely to cause hurt or injury to any person. It goes without saying that both the said ingredients must exist to attract the offence. To invite the wrath of law in Section 279 IPC, the act complained of need not be a rash and negligent one; but it need be either rash or negligent act. **Black's Law Dictionary** describes 'negligence' as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others rights. But the term 'rashness' is not defined in **Black's Law Dictionary** . Meaning of the 6 Crl.MC No.3975/2013 word 'rash' as per **Oxford Dictionary** is acting or doing without considering the possible results. Likewise, **Oxford Thesaurus of English** shows that contextually the word 'rash' may mean hasty, overhasty, foolhardy, incautious, careless, thoughtless, imprudent, over-adventurous, daredevil, ill-considered, unconsidered, unthinking, injudicious, wild,etc. Rashness and negligence are words having different connotations in law. The terms 'negligence' and 'rashness', therefore, are not synonymous or interchangeable. Supreme Court in **Sushil Ansal v. State Through CBI (2014 (2) KHC SN 26)** while considering a case falling under Section 304A IPC held thus:- _“...............Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike, rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. .............”_ A rash act is primarily an overhasty act and is thus opposed to a deliberate act. In rashness, the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. For attracting the offence 7 Crl.MC No.3975/2013 under Section 279 IPC, the rashness or negligence attributable to the accused must be criminal rashness or negligence. It is true that the Section does not require an element of _mens rea_ for getting involved therein. What is essentially required is the utter callousness or recklessness or an indifferent/unmindful attitude towards the consequences. 11. It is apposite to have a re-look at the term ' _mens rea_ '. The maxim relevant in criminal law is _actus non facit reum, nisi mens sit rea_ (the intent and act must both concur to constitute the crime). Literally _mens rea_ means a guilty mind, a guilty or wrongful purpose, a criminal intent, a guilty knowledge and wilfulness (see **Black's Law Dictionary** ). _Actus_ means a deed, a material result of human conduct and _reus_ means the forbidden one. 12. Now coming to Section 425 IPC, it is evident that mischief, like most crimes, comprises a mental and physical element. If a person causes wrongful loss or damage to public or any property or destroys or diminishes its value or utility or affects it injuriously with an intend to cause damage or destruction or knowing that he is likely to cause damage or destruction to the property, he is said to commit the offence. On reckoning the allegations in Annexure-A4 final report, it can be seen that the prosecution has no case that the petitioner intentionally dashed the vehicle on an electric post 8 Crl.MC No.3975/2013 erected by the side of the road. Then what is remaining to be considered is whether he drove the vehicle rashly or negligently knowing that he is likely to cause wrongful loss or damage to public property. Whether it is attributable to a person, who rashly or negligently drives through a public road, with the knowledge that he is likely to cause danger to human life or damage or destruction of property? It is the legal requirement that any person driving a vehicle on a public road is expected to take due care and attention to avoid or avert a possible danger or damage to life or property. Still, if such person, unmindful of the consequences, drives a vehicle rashly or negligently, can it be said that he knew the possible consequences of his action? True, a person driving or riding on a public way is expected to be alive and attentive to the realities like the density of population in the area through which he is driving, nature of the vehicle that he is driving, speed at which the vehicle is being driven, the condition of the road, whether he drives the vehicle at rush hours, weather condition at the time of driving, that is to say, rain, fog, etc. is affecting his visibility or increasing the possibility of error of judgment, etc. Mere speed alone may not be a criterion to find that a person was driving or riding on a public way rashly or negligently. The above mentioned realities perceivable while driving on a public road makes the driver/rider responsible for his act. But still, there is a clear cut distinction in law between an act done rashly or negligently on one hand and an act done with intention or knowledge of its consequences 9 Crl.MC No.3975/2013 on the other hand. The expressions 'intention' and 'knowledge' occur at many parts of the Penal Code. In the context of culpable homicide and murder defined in Sections 299 and 300 IPC respectively, the Supreme Court in **Basdev v. State of Pepsu (AIR 1956 SC 488)** and in later decisions has clearly held that intention and knowledge are two different things. Knowledge in this context means the awareness of consequences. I have already elaborated as to what is the legal meaning of the terms 'rashness' and 'negligence'. Both in rashness and negligence, there is no mental element to commit an offence. A rash act, though done with utter disregard to the consequences, cannot be said to be done with an intention or knowledge. Actually a man doing so does not intend to produce the result that eventually happens later on account of his action. Likewise, he does a rash or negligent act without the real knowledge as to what will happen as the outcome of his act. It is indisputable that mischief is an offence done by the offender either with intention or with the knowledge that it is likely to cause damage or destruction to property. Hence, conceptually and in reality, the offences of rash or negligent driving on a public way and causing mischief by such an act cannot go together. 13.. At the Bar, the decision in **Satish Chand Singhal v. State of Rajasthan (2007 Cri.L.J. 4132)** was cited. The accused therein while trying to repair telephone wires, pulled the wire over 11 KV electric lines. In 10 Crl.MC No.3975/2013 that process, two live wires touched each other causing extensive damage to a telephone exchange. The accused was charged inter alia under Section 3 of the PDPP Act. The point is decided thus: _“............. A person with the slightest intelligence would of course know that live wires carrying electricity are dangerous objects to play with and in case two wires were to meet the damage caused to property and life would be immense. Thus, even at the preliminary stage the knowledge can be attributed to the petitioner. Therefore, the petitioner had the knowledge that he is likely to cause damage or a wrongful loss to the property. Hence, his case falls within the definition of mischief contained in Section 425 of IPC. From this premise it follows that his case is also covered under Section 3(2)(e) of the Act of 1984. ...........”_ On going through the decision, I am not persuaded by the above view for the reason that the decision does not deal with the essential distinctions between a rash/negligent act and an act done with intention/knowledge 14. Learned counsel for the petitioner placed reliance on **Krishna Gopal Singh v. State of U.P. (AIR 2000 SC 3616)** to contend a proposition that the offence of mischief defined in Section 425 IPC can be established only with the strength of allegations covering the ingredients enumerated in the Section. 11 Crl.MC No.3975/2013 15. Learned counsel further cited two decisions, viz., **Suyambu Nadar and others v. State by S.I. of Police (1999 KHC 1816)** and **State of Rajasthan v. Nauratan Mal (2002 KHC 2006)** wherein the offence of mischief by killing or maiming live stock/cattle was considered. It is relevant to note that the facts and circumstances in those decisions are entirely different from those in our case. Here the damage allegedly caused is to a stationary electric post erected by the side of a public road. Hence the said decisions are distinguishable on facts. However, on the basis of the discussions made above, it can be ratiocinated that the prayer is legally sustainable. In the result, the petition is allowed. Charge against the petitioner in Annexure-A4 final report under Section 3(2)(a) of the PDPP Act is quashed. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**