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2003 Supreme(Bom) 1014
IN THE HIGH COURT OF BOMBAY
Kanade V.M., J.
Salman Salim Khan .... Petitioner.
Versus
State of Maharashtra.... Respondents.
Criminal Writ Petition No. 2467 of 2003, decided on 3-9-2003.
Advocates appeared :
Shirish Gupte with A.P. Mundergi Dipesh Mehta with S.V. Marwadi, for applicant.
Smt. P.H. Kantharia, A.P.P., for State.
Subhash Jha, for intervenors.
Headnote:(i) Indian Penal Code, 1860 — Sections 279, 304A, 337, 338, 427 & 304 Part II — Appellant driving car in a very high speed & while taking right turn lost Control & car mounted on foot path & dashed into shutter of a shop wherein one person was crushed to death & four others received grievous injuries — Victims were sleeping on staircase of the shop — Sessions Court framed charge u/s. 304 Part II IPC apart from other charges — Revision — Statement of witnesses that applicant was being warned to drive slowly & that speed of his car was 90 to 110 Kms. & that applicant appeared to have consumed liquor when came out of a hotel at about midnight before driving car — Whether offence of culpable homicide could be said made out prima facie? (No).
Held: With the advent of modern technology and use of various machines various possibilities exist which can result into death of human being if the said machine or technology or technique is carelessly handled. In all such cases though a person may not have the intention of causing death or knowledge whether such an act is likely to cause an injury which would cause death, yet he is aware about the possibility of death. Section 304 Part II on the contrary deals with a much graver offence in which there is a knowledge on the part of a person who is committing an act that the said act is likely to cause an injury which is likely to cause death. Section 304 Part II, therefore, is an offence which is committed when the knowledge goes beyond the act of rashness and negligence. The question which is required to be answered in this case is whether the provisions of Section 304 Part II will be attracted on the basis of the complaint which is filed as it is, without appreciating or without adding or subtracting anything from the said complaint. If any appreciation of facts is required, then this would not be an appropriate stage to decide the said issue and then the issue can only be decided after the evidence is adduced by the prosecution and final arguments are heard by the Sessions Court. However, if from the perusal of the complaint it transpires that from the facts, if they are taken as they stand, offence under Section 304 Part II is not made out, then in that event, this Court can alter the charge which is already framed by the Sessions Court. (Para 13)
In the facts of the present case also the complainant in his statement has stated that the accused was driving at a high speed and while trying to take a turn he lost control of the vehicle and he rammed the car into the shop and as a result one person who was sleeping on the staircase of the shop was killed and four others were gravely injured. In my view, from the statement of the complainant itself it is clear that the said act happened when the applicant was trying to take a turn at a high speed. Even if the subsequent statement of the complainant is accepted as true, that the applicant was cautioned to drive the car slowly, and in spite of that the applicant ignored the warning and as a result the accident took place even then, it cannot be said that ingredient of Section 304 Part II are attracted, as the said act would clearly fall within the definition of a reckless and negligent act not done without any premeditation. In my view, the ratio laid down by the Apex Court in the case of Haidarali (supra), in para 10 would be squarely applicable to the facts of the present case. Thus even without appreciating the evidence on merits by looking at the statement made by the complainant, who was also an eye-witness to the said incident, provisions of Section 304 Part II, in my view are not attracted. Once the Court comes to the said conclusion, then framing of a charge against a person which from the facts of the case clearly shows that the ingredients of the said offence are absent. It would clearly be illegal as framing of a charge affects a person’s liberty substantially and, therefore, it is essen-tial to consider the material available before the Court before framing of the charge. (Para 18)
(ii) Criminal Procedure Code, 1973 — Sections 227 & 228 — Order framing of charge — Scope for interference in revision — Court can alter the charge where prima facie offence as charged by Sessions Court was not made out. (Paras 23, 27 & 28)
2. By an order dated 9th July, 2003, the matter was adjourned to 28th July, 2003 and by consent of parties, the matter is being finally disposed off at the admission stage itself.
3. The brief facts which are necessary for the purpose of deciding the present application are as under :-
The applicant is arraigned as an accused in Sessions Case No. 126 of 2003. The offence was registered by Bandra Police Station vide C.R. 326 of 2002 on 28th September, 2002 under section 304(A), 279, 337, 338, 427 of I.P.C. and sections 134(a) and (b) read with 181, 185 of the Motor Vehicles Act, 1998 on a complaint of one Ravindra Patil, Police Constable attached to the Security Department, Social Security Branch No. 1. The case of the prosecution in brief is that the applicant is a film actor and he was provided with police security. The complainant was appointed as a security guard of the applicant. The incident in question took place on 27th September 2002. The complainant reported to duty at about 8.00 p.m. and, therefore, at 9.30 p.m. the applicant took out his Toyota Land Cruiser car bearing No. MH-01-DA-32 and drove towards the hotel known as Rain. The applicant was also accompanied by a friend one Mr. Kamal. When they reached the Rain Hotel, the applicant and his friend Kamal went inside and the complainant sat in the car. A about 1.30 a.m. the applicant and his friend Kamal came out of the hotel and from the said place they went to J.W. Marriot Hotel in the same car. At about 2.15 a.m. all of them left for Bandra where the applicant resides. The applicant was driving the car in a high speed and while the car was taking a right turn from St. Andrew's road, the applicant lost control of the car and it mounted on the foot path and dashed into shutter of the shop known as American Express Cleaners and as a result one person was crushed to death and four others received grievous injuries. All these four persons were sleeping on the staircase of the said shop. As a result of the accident, people gathered there and started pelting stones. The applicant and his friend ran away. The complainant told the crowd which had gathered there that he was a Police Constable and, thereafter, he went to the Police Station and his F.I.R. was recorded at 5.40 a.m. on 28th September, 2002 and a case was registered against the applicant vide C.R. No. 326 of 2002 and he came to be arrested. However, since the offence was bailable, the applicant was enlarged on bail on 28th September 2002.
4. A Public Interest Litigation was filed on behalf of certain citizens and during the course of hearing of the said petition a statement was made on behalf of the State that the accused will be charged under section 304 of the I.P.C. The Division Bench of this Court has stated that it did not wish to express any opinion on the said aspect. In the said petition the validity of section 304-A of I.P.C. has been challenged as also the validity of section 163(a) of Motor Vehicles Act is challenged. The said petition is still pending and is not decided. An interim order was however passed in the said petition in which directions were given to the accused to deposit an amount of Rs. 20 lakhs by order dated 7th October 2002. On the same day at about 3.00 p.m. the applicant came to be again arrested in C.R. No. 326 of 2002 by the Bandra Police Station as they added provisions of section 304(2) of the I.P.C. in the case. On 8th October, 2002, the applicant was produced before the learned Magistrate who refused to grant bail to the applicant. Since the offences were triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions for trial and, thereafter, bail was granted by the Court of Sessions on 24th October, 2002.
5. On 7th March, 2003, the applicant filed Criminal Application No. 463 of 2003 in the Court of Sessions in which he prayed th
