Heard the learned counsel for the petitioner and the learned HCGP for respondent No.1.

2. The brief factual matrix emanated from the records are that:

On the complaint lodged by a person by name Smt. Soumya, the respondent/police have registered a case in Crime No.37/2015 for the offences under Sections 279 and 337 of Indian Penal Code against two accused persons by name Chethan and Bojegowda. It is the case of the prosecution that as per the F.I.R., that on 23.02.2015 at about 3.00 p.m., the complainant Smt. Soumya has lodged a complaint stating that, on 22.02.2015 at about 9.50 p.m., near S.I.T. College, in front of Jamuna Bar and Restaurant, a vehicle bearing reg. No.KA06EB1440 i.e., Honda Activa moped was being driven by one Sri. Bojegowda [accused No.2], on which the son of the complainant by name Rakesh was a pillion rider. When the said moped reached near S.I.T. College, while taking ‘U’ turn, at the same time, a vehicle bearing reg. No.KA02MA97 i.e., car being driven by Chethan [accused No.1] in rash and negligent manner and both the vehicles dashed against each other and due to the impact of the said accident, Rakesh sustained injuries to his right leg, head and other parts of the body. Accused No.2Bojegowda also sustained injuries to his face and other parts of the body. On the above said allegations, the Police have investigated the matter and ultimately, laid the chargesheet against three accused persons. The petitioner is the 3rd accused in the said chargesheet, who is said to be the owner of the vehicle bearing reg. No.KA06EB1440 i.e., Honda Activa moped. The Police have concluded in the chargesheet that there was contributory negligence by the rider of the moped bearing reg. No.KA06EB1440 as well as the driver of the car bearing reg. No.KA02MA97.

3. Learned counsel for the petitioner precisely contended before the Court that the Police have committed a serious mistake in filing a common chargesheet with regard to contributory negligence. There should have been two chargesheets filed against two drivers of the vehicles independently. The chargesheet can only be continued against the driver of the car because, in this particular case, the victim i.e., the rider of the moped has also sustained severe injuries and he is a victim in the said accident. If at all there was any contributory negligence, a separate chargesheet ought to have been filed against him. There is no injury suffered by the driver of the car. Therefore, he cannot not be said to be victim insofar as this case is concerned. Therefore, the chargesheet ought to have been filed against the driver of the car and if at all the Police have found any contributory negligence on the part of the rider of the moped, an independent chargesheet ought to have been filed. In this context, learned counsel Sri. M.Shashidhara contends that, the owner of the moped cannot be made as an accused insofar as this chargesheet is concerned.

4. In this context, learned counsel for the petitioner also cited a decision reported in LAWS(KAR) 2015 3 305 between V.N.S. Prabhakar ROA Vs. THE STATE OF KARNATAKA. This Court was faced with similar situation and has made an observation that whenever there arises contributory negligence and if one person is a victim and he is supposed to be a witness in a case, in such circumstance, the victim himself should not be made as an accused in the said case. It is observed by this Court at paragraph 5 in the following manner:

“So far as the contributory negligence as alleged is concerned, it is a well recognized principle of criminal jurisprudence that contributory negligence cannot take any place so far as criminal prosecution is concerned. The contributory negligence only consists of absence of ordinary care which is ordinarily taken in peculiar circumstances of the case. What care that has been taken by Accused No.2 before the occurrence of the accident should have been examined by the Investigating Officer by recording his statement and