Joining an inebriated driver for a late-night drive can constitute instigation and lead to criminal liability under Section 111 and Section 113 of the Indian Penal Code.

JUDGMENT

(Prayer: Criminal Miscellaneous Petition filed under Sections 397 and 439 of the Code of Criminal Procedure to set aside the order dated 21.12.2021 dismissing the petition for discharge filed under Section 227 of the code of Criminal Procedure in Crl.M.P.No.17523 of 2021 in S.C.No.265 of 2019 in the Court of the learned 1st Additional Sessions Judge, Chennai.)

1. The revision is filed aggrieved by the order of the learned First Additional Sessions Judge, Chennai dated 21.12.2021 in Crl.M.P.No.17523 of 2021 in S.C.No.265 of 2019 in and by which, the prayer of the petitioner / third accused to discharge her from the case, was rejected by the Trial Court.

2. Heard Mr.R.John Sathyan, learned counsel for the petitioner and Mr.S.Vinoth Kumar, learned Government Advocate (Crl. Side), appearing on behalf of the respondent.

3. Learned counsel for the petitioner submits that, in this case, the allegation of the prosecution is that, on 12.11.2013, at about 3.30 AM, the first accused Anbusurya, who is the younger brother of the petitioner was driving a car bearing Registration No.PY-01-BR-7290 and the second accused, namely one Krish @ Sebastian Krishnan was the co-passenger in the rear seat and the petitioner was the co-passenger in the front sear. The car, while nearing the All India Radio building at Kamaraj Salai (Beach Road, Chennai), ran berserk and dashed against three pedestrians, killing them instantly and gravely injured one more person and injuring two other persons. The car also dashed against a motor bike, bearing Registration No.TN-48-S-4380 and went on to dash against a TATA SUMO, bearing Registration No.TN-12-4621 and came into halt after colliding with yet another car bearing Registration No.TN-06-F-8880, which was parked in front of the All India Radio building. The Police Man on duty was also one of the unfortunate victim. On the strength of the said allegations, all the three accused are now prosecuted in S.C.No.265 of 2019. The first accused for the offence under Section 304(ii) (3 counts) and other two accused for the offence under Section 304(ii) (3 counts) r/w 109 of the Indian Penal Code and for the other offences.

4. Learned counsel would submit that firstly, in this case, the petitioner / third accused was not in an inebriated condition, even though she was subjected to medical examination and the same is on record. Secondly, there is no investigation whatsoever, as to where the driver of the vehicle and the other passenger got drunk and whether the petitioner / third accused was present along with them or whether the petitioner had any knowledge whatsoever regarding the fact that the driver of the vehicle, namely the first accused / her brother, was in an inebriated condition. In the absence of the same, she herself being an innocent victim, having suffered injuries in the accident, cannot be prosecuted by the respondent police, especially in the absence of any positive act of instigation whatsoever. Therefore, there is no evidence firstly, as to the knowledge about the fact that the accused was driving in an inebriated condition and secondly, about the fact as to any positive act which would amount to instigation for the commission of offence. The prosecution of the petitioner is absolutely groundless and therefore, she is entitled to be discharged.

5. In support of his contention, learned counsel for the petitioner relied upon the Judgment of the Hon'ble Supreme court of India in Kulwant Singh @ Kulbansh Singh vs State of Bihar(CDJ 2007 SC 756)more specifically paragraph 12, which is extracted hereunder:

“12. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment then the offender is to be punished with the punishment provided for the original offence. Section 109 applies even where the abettor is not present. Active abetment at the time of committing the offence is covered by Section 109. Act abetted in Section