Monday, September 9, 2013

Law on FIR in India






Facts you must know about FIR before you enter a police station. 

By Sumit Nagpal

For a journo covering Judiciary, its a very very common thing that people approach you saying the police is not lodging their FIR. I have come across numerous cases, where people are ill treated by the police stations and FIRs are refused. And since last three days, there is a campaign on Twitter about the mysterious death of one Naina Singh of Ghaziabad. Her mother is crying foul over her death and the police is not ready to lodge FIR. This prompts me to write a blog on things you must know before entering a police station in such a case.

What is FIR?
FIR stands for first information report. It is a document providing the basic information that a cognizable offense has been committed. We must know that FIR is not a conclusive proof that a person has committed an offense. FIR is the starting point of the investigation in a particular offense.

What is the law on FIR?
FIR is governed by Section 154 of the Criminal Procedure Code.
According to Section 154, (1) Every information relating to the commission of a cognizable offense, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informants and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. (2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant. (3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offense, shall either investigate the case himself or direct an investigation to be made by any police officer Subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

Is a police officer duty bound to lodge FIR in every case?
The police officer is duty bound to lodge FIR in every cognizable case. And if a police officer gets a complaint from an aggrieved person about the cognizable offense, he must lodge a FIR. And if a police officer refuses to do so, one must approach the SP of the concerned area that a police officer has refused to lodge FIR.

What does it mean if the police officer takes your complaint and gives you an acknowledgement? Does it mean FIR has been lodged? 

No, it doesn't mean that the FIR has been lodged. It just means that the police officer has received a complaint and the police will see if a cognizable offense has been committed or not?

How will you get to know that your FIR has been lodged or not?
If a FIR has been lodged, the police officer concerned shall write in their prescribed performa in a form or in computer as the case may be. They will also write the relevant sections and the name of the accused persons if any of them are known to the complainant. The FIR shall also contain a reference number containing the year also.

Can your complaint be FIR?
Yes! Your complaint can also be FIR provided they have written down the contents of your complaint in their prescribed performa. Please remember that mere acknowledgment of receiving your complaint doesn't automatically converts it into FIR.

Is it your right to get a copy of FIR?
Yes! Its your right to get a copy of your FIR free of cost from the police

Should FIR be lodged ASAP? What will happen if there is a delay in filing FIR?
Yes, FIR must be lodged as soon as possible. If there is a delay in filing the FIR, it will help the accused because the accused shall get time to destroy the evidence, there shall be a problem in locating the witnesses and during the trial, the defense lawyer will make an allegation that FIR is an after thought.

Why they refuse to file FIR? 
There are few reasons the police refuses to lodge FIR like the offense is not a cognizable offense. Sometimes they want to keep the crime graph low so if they don't lodge FIR, it will not show in the crime statistics in the area. Many a times, a party bribes police officers and that's why they refuse to lodge FIR. In most of mobile theft cases, it is a common practice that police does not register a FIR but registers a NCR so the graph of theft remains low.

What should you do if the police officer refuses to lodge a FIR?
If the police refuses to lodge FIR, don't think that this is the end of the road. The Criminal Procedure Code has a provision under section 156(3) where an aggrieved person may file a petition before the magistrate asking for a direction to the police to lodge a FIR.

(Note : This is part I of Law on FIR. In next blog I will tell you the difference between FIR, NCR and complaint. I will also write what is a cognizable offense and what is non cognizable one.)



Article 166 in The Constitution Of India 1949
Dattatraya vs State Of Maharashtra And Ors. on 22 August, 1996
Shamsher Singh & Anr vs State Of Punjab on 23 August, 1974
P.Rathinam vs Union Of India on 26 April, 1994
State Of West Bengal Etc. vs M.R. Mondal And Anr. on 3 September, 2001




Supreme Court of India
Ropan Sahoo & Anr. vs Ananda Kumar Sharma & Ors. on 22 January, 2013
Author: D Misra
Bench: K.S. Radhakrishnan, Dipak Misra
, , , ,

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 615 OF 2013

(Arising out of S.L.P. (C) No. 34902 of 2009)

Ropan Sahoo & another ... Appellants

Versus

Ananda Kumar Sharma & others ...Respondents

WITH

CIVIL APPEAL NO. 616 OF 2013

(Arising out of S.L.P. (C) No. 35166 of 2009)

State of Orissa & others ....Appellants

Versus

Ananda Kumar Sharma & others ....Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted in both the special leave petitions.

2. Questioning the legal acceptability of the order dated 16.9.2009 passed by the Division Bench of the High Court Orissa at Cuttack in WP(C) No. 3913 of 2009 whereby the High Court entertained the writ petition preferred by the first respondent herein and quashed the grant of exclusive privilege and the licence granted in favour of Ropan Sahoo and Mukesh Kumar, the respondent Nos. 5 and 6 in the writ petition, the present appeals have been preferred by the grieved persons as well as by the State.

3. Shorn of unnecessary details the facts which are requisite to be stated are that Mukesh Kumar, the respondent No. 6 before the High Court, had submitted an application for grant of licence to open an IMFL “Off” shop in Ward No. 16, Bargarh Town for the year 2007-08 on 28.1.2008. As a report was submitted that the proposed site was violative of sub-rule 1(c) of Rule 34 of Orissa Excise Rules, 1965 (for short “the Rules”), the said respondent chose to withdraw the application for the aforesaid year by indicating personal reasons. In respect of the next financial year he again submitted an application for grant of licence at the same place. The Collector, Bargarh, invited objections and pursuant to the same the writ petitioner filed his objection on 18.10.2008. The Inspector of Excise submitted a report on 2.2.2009 stating about the existence of a bathing ghat, Vishnu temple, bus stand and petrol pump within the prohibited distance, but recommended for relaxation of restrictions. The Collector, Bargarh, recommended for opening of the shop for remaining part of the year 2008-09 in relaxation of the restrictions and the Excise Commissioner also recommended to the Government on 19.2.2009 for sanction by relaxing of the restrictions. As the factual matrix would reveal, the State Government on the basis of the recommendations invoked the power of relaxation under Rule 34 of the Rules and granted licence in favour of the said respondent for the remaining period of 2008-09. Be it noted, in a similar manner relaxation was granted for opening of the IMFL/Beer (‘ON’ shop) at Hotel Sawadia for the period from 2.3.2009 to 31.3.2009.

4. Being grieved by the grant of said licences, the first respondent invoked the jurisdiction of the High Court under Article 226 of the Constitution principally contending that the report submitted by the Excise Inspector with regard to certain aspects, namely, location of the bathing ghat, etc. were not factually correct; that the recommendations made by the authorities were highly improper and unwarranted; and that the relaxation had been granted in an extremely arbitrary manner and, therefore, the grant of exclusive privilege and the licence deserved to be axed. The High Court perused the documents brought on record, called for the record to satisfy itself in what manner the power of relaxation was exercised, and after perusal of the record and on consideration of to various recommendations, came to hold that as far as the respondent No. 5 was concerned for sanction of a beer parlour ‘ON’ shop licence for the remaining period of 2008-09, no order was passed relaxing the Rules before the grant of exclusive privilege. As far as the sanction of IMFL Restaurant licence in respect of 6th respondent was concerned, the High Court expressed the similar view. We think it apt to reproduce the ultimate conclusion recorded by the High Court: -

“13. Proviso to Rule 34 specifically prescribes that restriction on the minimum distance as mentioned in Clause (d) and (e) may be relaxed by the State Government in special circumstances. There being no order by the State Government relaxing the aforesaid two Clauses in relation to the minimum distance between the proposed shops and the place of worship i.e. the Vishnu Temple, petrol pump and bus stand, the order of the State Government approving the sanction/grant of exclusive privilege in favour of opposite parties 5 and 6 cannot be sustained in law.”

5. After so stating the High Court referred to Section 41 of the Bihar and Orissa Excise Act, 1915 (for brevity “the Act”) and observed as follows: -

“Rule 34 of the Rules castes a statutory duty on the Department to pass order with reasons relaxing the restrictions. When there has been infraction of such statutory duty, the same cannot be covered under Section 41 of the Act.”

6. Being of the aforesaid view, the High Court quashed the privileges and the licences granted in favour of the private respondents therein.

7. We have heard Mr. Bhaskar P. Gupta, learned senior counsel for the beneficiaries of the grant, Mrs. Kirti Renu Mishra, learned counsel for the State and Mr. G. Ramakrishna Prasad, learned counsel appearing for the respondent No. 1 in both the appeals.

8. At the very outset we may note that it is the admitted position that both the proposed sites come within the prohibited area as envisaged under Rule 34(1)(d) and (e) of the Rules. Rule 34 of the Rules stipulates that the places in respect of which licences for consumption of liquor on vendor’s premises should not be granted. The said Rule reads as follows: -

“34. Licences for shops for consumption of liquor on vendor’s premises not to be granted at certain places : (1) No new shop shall be licensed for the consumption of liquor on the vender, premises –

a) in a marketplace, or

b) at the entrance to market place, or

c) in close proximity to a bathing-ghat, or

d) within at least five hundred meters from a place of worship, recognized educational institution, established habitant especially of persons belonging to scheduled castes and labour colony, mills and factories, petrol pumps, railway stations/yard, bus stands, agricultural farms or other places of public resort, or

e) within at least one kilometer from industrial, irrigation and other development projects areas, or

f) in the congested portion of a village :

Provided that the restriction on the minimum distance as mentioned under clauses (d) and (e) may be relaxed by the State Government in special circumstances.

(2) So far as practicable, an established liquor shop licensed for the consumption of liquor on the premises shall not be allowed to remain on a site which would not under sub-rule (1) be permissible for the location of a new shop.

(3) In areas inhabited by Scheduled Tribes, country spirit shops shall not be licensed to be placed immediately on the side of a main road or in any other prominent position that is likely to place temptation in their way.”

9. On a perusal of the aforesaid Rule, it is crystal clear that the State Government has been conferred with the power to relax the restriction on the minimum distance as mentioned in clauses (d) and (e) pertaining to the minimum distance. As has already been indicated hereinbefore there is no cavil that the material on record pertained to the relaxation of the restriction as prescribed under clauses (d) and (e) of sub-rule (1) of Rule 34 of the Rules. The High Court, as the impugned order would reflect, has quashed the order of approval/sanction and the consequent grant of licences on the foundation that there has been no order relaxing the restrictions on the minimum distance as mentioned in Clauses (d) and (e) relating to the proposed shops in exercise of powers of the said Rule by the State Government and, in any case, no reasons have been ascribed. Thus, the question that emanates for consideration is whether the High Court has appositely appreciated the note sheet in the file and arrived at the correct conclusion or not.

10. The High Court, as demonstrable, has reproduced the communications made by the Joint Secretary to the Government by fax vide memo No. 1159/Ex. dt. 2.3.2009 addressed to the Excise Commissioner about the Restaurant “ON” shop licence in favour of Mukesh Kumar at “RASSOI RESTAURANT” in the premises of Hotel ‘Sawadia Palace’, Ward No. 11, Bargarh Municipality over Plot No. 1622, Khata No. 2542/362, in the district of Bargarh for the remaining period of 2008-09 and also the memo No. 1161/Ex. dated 2.3.2009 in respect of Beer Parlour “ON” shop licence in favour of Ropan Sahoo over Plot No. 1391/2260, Khata No. 393 in Ward No. 16 of Bargarh Municipality, in the district of Bargarh for the remaining period of 2008-09. The communication that has been made in favour of Mukesh Kumar reads as follows: -

“In inviting a reference to your letter No. 1214 dt. 19.2.09 on the subject cited above, I am directed to say that Govt. after careful consideration have been pleased to grant IMFL Restaurant “ON” shop Licence in favour of Sri Mukesh Kumar at “RASSOI RESTAURANT” in the premises of Hotel “Sawadia Palace”, Ward No. 11, Baragarh Municipality over Plot No. 1622, Khata No. 2542/362, in the district of Baragarh for the remaining period of 2008-09 by relaxing rule 34 of the Orissa Excise Rules, 1965 and fixation of MGQ as per Excise Duty, Fee Structure and Guidelines for 2008-09. The Excise Administration may be held responsible if the existing nearby excise shops are affected by the new “ON” shop.”

As far as grant of beer parlour “ON” shop in favour of Ropan Sahoo is concerned, the communication vide memo No. 1161/Ex. dated 2.3.2009 is as follows: -

“In inviting a reference to your letter No. 1380 dt. 25.02.09 on the subject cited above, I am directed to say that Govt. after careful consideration have been pleased to sanction Beer Parlour “ON” shop Licence in favour of Sri Ropna Sahoo over Plot No. 1391/2260, Khata No. 393/330 in Ward No. 16 of Bargarh Municipality, in the district of Bargarh for the remaining period of 2008-09 subject to condition that the district excise officials will be held responsible if the nearby existing excise shops are affected by opening of the new shop.”

11. As no reasons were assigned, the High Court called for the file. On a perusal of the file the High Court referred to the recommendations and, eventually, opined that no order had been passed relaxing the Rule in respect of the said shops by the Commissioner-cum-Secretary to Government, Department of Excise. The thrust of the matter is whether any order has been passed relaxing the restrictions imposed by the Rules and does it contain reasons. As the first communication would reveal, it is clearly mentioned therein that the Government has relaxed the restrictions under Rule 34 and as far as the second communication is concerned, it has been stated that the Government has sanctioned grant of licence. The learned counsel for the State has referred to the note sheet to highlight that the orders had been passed in consonance with the proviso to Rule 34(1) of the Rules and on that basis the communications were issued.

12. We have bestowed our anxious consideration and carefully perused the note-sheet. On a studied scrutiny of the same it is luculent that the Excise Commissioner, Orissa, Cuttack, had recommended the proposals and in support of the same had furnished seventeen documents. The note sheet has referred to the report which states that the proposed site exist at 350 meters from Vishnu Temple, 250 meters from the petrol pump, 200 meters from the private bus stand and 50 meters from the irrigation canal. The recommendation which forms part of the note sheet reads as follows: -

“The Collector, Bargarh, in his report at P-84/C has stated that the local consumers demand for consumption of liquor within the hotel premises. Illegal liquor cases have been booked in the nearby area and hence, there is demand for the “ON” shop. The apprehension that the existing IMFL “OFF” shop will be affected after opening of the proposed “ON” shop is ruled out, because the consumers of “OFF” shop are different from “ON” shop. The customers of “ON” shop has to consume liquor inside the Hotel premises with peg system and pay service charge, whereas such a facility is not available with “OFF” shops. Besides, the bathing ghat is not nearby as objected. But only one irrigation canal is flowing at a distance of about 50 meters. Therefore, Collector has recommended for relaxation of rule 34 of Orissa Excise Rules, 1965 for sanction of the proposal in the interest of Govt. revenue and to check illegal liquor trade.”

13. The objections of A.K. Sharma and that of the Secretary, Human Society, Bargarh have also been considered. Thereafter, the Joint Secretary has recommended thus: -

“In the above circumstances and in view of recommendation of the Excise Commissioner, Orissa, Cuttack, it may kindly be considered to grant IMFL Restaurant “ON” shop licence in favour of Sri Mukesh Kumar at “Rasooi Restaurant” in the premises of Hotel “Sawadia Palace” Ward No. 11, Bargarh Municipality over Plot No. 1622, Khata No. 2542/362, in the district of Bargarh, for the remaining period of the year 2008-09 by relaxing rule 34 of Orissa Excise Rules, 1965 and MGQ fixed as per the Excise Duty, Fee Structure and Guidelines for 2008-09. The District Excise Administration may be held responsible if the existing nearby excise shops are affected by the new “ON” shop.”

14. The Commissioner-cum-Secretary to Government, Excise Department, has endorsed the same in the following terms: -

“Notes from P.10/N explain. We had received a representation from Shri A.K. Sharma, Exclusive Privilege Holder of IMFL ‘Off Shop’ No. 4 of Bargarh (P.23-22/C) against the proposal received from Collector, Bargarh and endorsed by the Excise Commissioner, Orissa for opening of IMFL ‘On Shop’ at Rasoi Restaurant in the premises of Hotel Sawadia Palace, Ward No. 11 of Bargarh. The objections raised by Shri Sharma have been enquired into by the District Administration. In this regard, the letter received from Collector, Bargarh at P.34-32/C may please be glanced through. The objections of Shri Sharma are found to be devoid of merit. The report received from the Excise Commissioner, placed below, may also be perused. The Excise Commissioner had recommended to consider the sanction of IMFL ‘On Shop’ at Rasoi Restaurant in favour of Shri Mukesh Kumar situated in the premises of Hotel Sawadia Palace, Ward No. 11 of Bargarh. The proposal may kindly be considered and approved.”

15. The same has been signed by the Minister of Excise and Tourism, Orissa. As far as the second shop is concerned, the note sheet referred to the recommendations of the Collector, which reads as follows: -

“...the Collector, Bargarh has reported that both the petrol pumps are situated in such a manner that the shops will have no effect at all on the proposed Bar and hence he has suggested for relaxation of restrictive provisions of rule-34 of Orissa Excise Rules, 1965.

The Collector, Bargarh has also reported that the proposed Beer Parlour shall cater to the needs of the consuming people of the locality besides fetching Govt. revenue and checking illicit sale of Beer, since the population of the area is increasing. Only 3 (three) IMFL “OFF’ shops, one IMFL ‘ON’ and one Beer Parlour are functioning in the entire town area having population of more than one lakh. There is feasibility and potentiality for opening of the Beer Parlour ‘ON’ shop, since illegal sale of liquor has been detected in the area. The proposed shop will check illicit trade of liquor. He has also stated that the opening of new Beer Parlour will not affect the nearby IMFL shops in the Municipality.”

16. The Joint Secretary after referring to the objections and the recommendations of the Excise Commissioner has passed the following order in the note sheet: -

“In the above circumstances and in view of recommendation of the Excise Commissioner, Orissa, Cuttack, it may kindly be considered to sanction Beer Parlour ‘ON’ shop licence in favour of Sri Ropna Sahu over plot No. 1391/2260, Khata No. 393/330 in Ward No.16 of Bargarh Municipality in the district of Bargarh for the remaining period of 2008-09 subject to condition that the district excise officials will be held responsible if the nearby existing shops are affected by opening of the new shop.

Government orders may kindly be obtained in the matter.”

17. Thereafter, the Commissioner-cum-Secretary to Government in the Department of Excise has endorsed the same and the Minister, Excise and Tourism has signed in approval thereof and thereafter the movement of the file took place. On the basis of the aforesaid orders the communications have been sent.

18. On a keen scrutiny of the entire note sheet we have no hesitation in our mind that the Commissioner-cum-Secretary had accepted the recommendations of the Collector and the Excise Commissioner, and upon perusal of the note sheet of the Joint Secretary had recommended for consideration and approval by the Minister of Excise and Tourism. The Minister, as stated earlier, has signed and thereafter, the file had travelled back for communication. We really fail to fathom the reasons ascribed by the High Court that there is no order whatsoever relaxing the Rules before the order of grant of exclusive privilege was passed. After the Minister had signed on the file on the basis of the recommendations sent by the Commissioner-cum-Secretary which was founded on the recommendations of the Joint Secretary who had concurred with the recommendations of the Collector and the Excise Commissioner, communications were made by the Joint Secretary. The note sheet clearly indicates application of mind to the relevant facts which pertain to the restrictions on the distance from the proposed site and the endorsement by the Minister. In this context, we may refer with profit to the decision in Tafcon Projects (I) (P) Ltd. v. Union of India and others[1], wherein the High Court, after taking note of the order passed by the Secretary who, in anticipation of the formal approval by the Minister concerned, had allowed the party to go ahead for appointing the appellant therein as “Event Manager”. This Court referred to the earlier order passed by the Secretary granting permission and the latter order in which he had mentioned that the party may be allowed to go ahead with the proposal for making the preliminary arrangement in anticipation of the formal approval of the Minister and expressed the view that the High Court had erred in coming to hold that the Secretary had not taken any final decision with regard to the appellant therein as the Event Manager. Thereafter, the Court adverting to the justification of the conclusion of the High Court that no final decision had been taken by the Minister expressed thus :-

“12. It appears also from the record as noted by the High Court, that the file had been pending with the Minister for some time and despite expressions of urgency, the Minister did not sign the file since he was busy with “elections and other important matters”. What the High Court has overlooked is that the relevant file was again placed before the Minister on 30.8.1999 by JS&FA with a note which stated that Tafcon had been appointed as the “Event Manager” for three years. This was signed by the Minister with the endorsement “file returned”.

13. The High Court deduced from this signature of the Minister that no approval was in fact granted by him to the appointment of M/s. Tafcon either expressly or impliedly. We are unable to agree. Where the Minister has signed the various notes put up before him seeking his approval, his signature, without more, must mean that he has approved the steps taken by the Department.”

19. Be it noted, in the said case, the Court referred to Rule 3 of the Transaction of Business Rules, 1961 which provided for all business to be conducted on general or special directions of the Minister-in- charge.

20. In the case at hand, Rule 7 of the Orissa Government Rules of Business made under Article 166 of the Constitution confers the power on the Minister to pass an order in respect of a matter pertaining to his portfolio. The effect of such a delegation has been dealt with by a three-Judge Bench in Narmada Bachao Andolan v. State of Madhya Pradesh[2] wherein it has been held that: -

The decision of any Minister or Officer under the Rules of Business made under Articles 77(3) and 166(3) of the Constitution is the decision of the President or the Governor respectively and these Articles do not provide for `delegation’. That is to say, that decisions made and actions taken by the Minister or Officer under the Rules of Business cannot be treated as exercise of delegated power in real sense, but are deemed to be the actions of the President or Governor, as the case may be, that are taken or done by them on the aid and advice of the Council of Ministers.”

21. The Bench to fructify its opinion has placed reliance on State of U.P. & Ors. v. Pradhan Sangh Kshettra Samiti & Ors.[3] and pronouncement by the seven-Judge Bench in Shamsher Singh v. State of Punjab & Anr.[4] For the sake of completeness, we may note with profit what has been stated in paragraph 27 of the aforesaid decision: -

“27. In Dattatraya Moreshwar v. The State of Bombay & Ors.[5], a Constitution Bench of this Court held that an omission to make and authenticate an executive decision in the form mentioned in Article 166 does not make the decision itself illegal, on the basis that its provisions were directory and not mandatory.”

22. In this regard we may quote a passage from Sethi Auto Service Station and another v. Delhi Development Authority and others[6] : -

14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned.”

23. In State of West Bengal v. M. R. Mondal and another[7] it has also been held that an order passed on the file and not communicated is non- existent in the eye of law.

24. In the present case it is luminous that the file had travelled to the concerned Joint Secretary of department who had communicated the order. The High Court has opined that there is no order by the State Government relaxing the restrictions enshrined in clauses (d) and (e) of Rule 34(1) of the Rules in relation to the minimum distance between the proposed shops and the Vishnu Temple, petrol pump and bus stand and at a latter part of the judgment has expressed the opinion that there has been infraction of statutory Rule, namely, Rule 34 which casts a statutory duty on the department to pass on order with reasons relaxing the restrictions. We are disposed to think that the High Court, as far as the first part of the opinion is concerned, has been guided by the factum that the Commissioner-cum-Secretary in his recommendation to the Minister of Excise and Tourism had not specifically referred to clauses (d) and (e) of Rule 34(1) of the Rules. It is pertinent to state here that it is perceptible from the note sheet that the Secretary had referred to the proposal received from the Collector, endorsement made by the Excise Commissioner, the objections raised by the objectors and also expressed the view that the said objections were devoid of merit and, accordingly, recommended for approval. The cumulative effect of the note sheet goes a long way to show that every authority was aware of the distance and recommended for relaxation of clauses (d) and (e) of sub-rule (1) of Rule 34 and the concerned Minister had endorsed the same. Non-mentioning of the Rule or sub-rule, in our considered opinion, does not tantamount to non-passing of an order. The dominant test has to be the application of mind to the relevant facts. The second part of the order, if properly appreciated, conveys that no reasons have been ascribed. The proviso to Rule 34(1) lays a postulate that the distance as mentioned under clauses (d) and (e) may be relaxed by the State Government in special circumstances. The recommendations made by the Collector refers to the circumstances, namely, that there is a demand for consumption of liquor within the hotel premises; that illegal liquor cases have been booked in the nearby area; and that the proposal is in the interest of the Government revenue. The said recommendations, as is reflectible, have been concurred with by the higher authorities and, hence, there can be no trace of doubt that they constitute the special circumstances.

25. In view of our aforesaid analysis, the appeals are allowed and the order passed by the High Court is set aside. It is further clarified that if the Government, if so advised, can invoke the power under the proviso to Rule 34(1) of the Rules for the purpose of relaxation for grant of exclusive privilege and licence pertaining to the said shops in respect of current and subsequent financial years. In the facts and circumstances of the case, the parties shall bear their respective costs.

……………………………….J.

[K. S. Radhakrishnan]

……………………………….J.

[Dipak Misra]

New Delhi;

January 22, 2013

-----------------------

[1] (2004) 13 SCC 788

[2] AIR 2011 SC 3199

[3] AIR 1995 SC 1512

[4] AIR 1974 SC 2192

[5] AIR 1952 SC 181

[6] (2009) 1 SCC 180

[7] AIR 2001 SC 3471


Head Notes

Allowing the appeal in part, the court

HELD: 1.1. Section 304A of the Penal Code, 1860. applies to rash and negligent acts and does not apply to causes where death has been voluntarily caused. This Section obviously does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death. It only applies to cases in which without any such intention or knowledge death is caused by what is described as a rash and negligent act.
[Para 5] [1145-b-c]

1.2. A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genes of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not. [Para 5] [1145-c-d]

Andrews v. Director of Public Prosecution, (1937) AC 576, referred to.

2. Negligence and rashness are essential elements under Section 304A. Culpable negligences lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In a criminal case, the amount and degree of negligence are determining factors. The question whether the conduct of the accused amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. [Para 6] [1145-h; 1146-a-c]

3. "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury. The criminality in such a case lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence, on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the change has arisen, it was the imperative duty of the accused person to have adopted. [Para 7] [1146-d-e]

In Re: Nidamorti Nagabhusanam 7 Mad H.C.R.119, referred to.

4. When the factual scenario of the present case is analyzed, it is crystal clear that the appropriate conviction would be under Section 304A IPC and not under Section 304 Part II IPC. Conviction is accordingly altered. The maximum sentences which can be imposed for an offence punishable under Section 304A is two years with fine or with both. The custodial sentences, therefore, is reduced to the maximum i.e. two years.
[Para 19] [1150-g]

Venkat Subramaniam T.R. and Ramesh Babu M.R. for the Appellant.

R. Sathish and M.T. George for the Respondent.

Subject

Penal Code, 1860:

Section 304A-Causing death by negligence-Negligence and rashness-Essential attributes of-Distinction between knowledge and intention-A boy aged 10 years was run over by a bus driven by the accused-Trial court found that no intention had been proved but, at the same time, held that the accused acted with the knowledge that it was likely to cause death-Hence, the accused was convicted under S.304 part II-High Court confirmed the conviction-Correctness of-Held:S.304A applies to rash and negligent acts and does not apply to cases where death has been voluntarily caused-This section does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death-A rash act is a negligent act done precipitately-Negligence is the genes of which rashness is the species-Negligence and rashness are essential elements under S.304A-Culpable negligence lies in the failure to exercise reasonable and proper care-Rashness means doing an act with the consciousness of a risk-In a criminal case, the amount and degree of negligence are determining factors-Whether the conduct of the accused amounted to culpable rashness or negligence depends directly on the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient considering all the circumstances of the case-Criminal rashness means an act done without any intention to cause injury or knowledge that it would probably be caused-On facts, conviction is under S.304A and not under S.304 Part II-Conviction altered to one under S.304A.

Words and Phrases:

"negligence" and "rashness"-Meaning of-In the context of Section 304A of the Penal Code, 1860.

According to the prosecution, a boy aged 10 years was run over by a bus driven by the appellant-accused. During the investigation it was revealed that the bus was being driven with a very high speed and therefore, the appellant was charged under Section 302 of the Penal Code, 1860.

The trial court found that no intention had been proved in the case, but, at the same time, held that the accused acted with the knowledge that it was likely to cause death. Hence, the trial court held that the act committed by the appellant was culpable homicide not amounting to murder punishable under Section 304 Part II IPC and sentenced him to undergo rigorous imprisonment for five years. The High Court did not accept the stand that the case was covered under Section 304A IPC and confirmed the conviction. Hence the appeal.

Citation

2007 AIR 2378, 2007(7 )SCR1141, , 2007(8 )SCALE605 , 2007(9 )JT346

Judgement

CASE NO.:
Appeal (crl.) 775 of 2005

PETITIONER:
Prabhakaran

RESPONDENT:
State of Kerala

DATE OF JUDGMENT: 21/06/2007

BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT:
J U D G M E N T


Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the order passed by the
learned Single Judge of the Kerala High Court. By the
impugned order the appellant was found guilty of the offence
punishable under Section 304 Part II of the Indian Penal Code,
1860 (in short 'IPC'). Learned Sessions Judge, Kozhikode, had
convicted the appellant for the offence punishable under
Section 304 Part II IPC. The High Court found the same to be
in order. Custodial sentence of five years was confirmed.
2. The background facts in a nutshell are as follows:

A boy aged 10 years residing in a hostel of the Tribal
Welfare Department, while he was a student of 4th standard in
a nearby school, was run over by a bus driven by the appellant
in the middle of the road. The investigation by the police
revealed that there was evidence to the effect that even the
passengers in the bus were alarmed of the enormous speed in
which it was being driven and had cautioned the driver to stop
even crying, as they had seen the school children crossing the
road in a queue. The investigation also revealed that even the
children crossing the road had raised both hands for stopping
the vehicle. The passengers and pedestrians were of the view
that the bus was being driven at a high speed and that they
had cried aloud to stop the bus. It was, in spite of all these,
that the bus ran over the said student on his head and the
bus could be stopped only 15 to 20 feet ahead of the spot of
occurrence. In the light of the said evidence, the investigating
officer felt that there was real intention on the part of the
appellant/driver of the bus to cause death of persons to whom
harm may be caused by reason of hitting the bus and he was
charged with offence punishable under Section 302 IPC. The
court below found that no intention had been proved in the
case. But, at the same time, the accused acted with the
knowledge that it was likely to cause death. So, the act
committed by the appellant was culpable homicide not
amounting to murder punishable under Section 304 Part II
IPC. Convicting him for the said offence, he was sentenced to
undergo rigorous imprisonment for five years and to pay a fine
of Rs.15,000/- with a default sentence of imprisonment for
three years. This was assailed in appeal.

3. The High Court did not find any substance in the plea of
the appellant that the accused had not caused death either
with the intention of causing death or with the intention to
cause such bodily injury as is likely to cause death or with the
knowledge that he is likely to cause such act to cause the
death. It was submitted that case is covered under Section
304A IPC. Same was not accepted. So, it was held that this is
a case of culpable homicide. It accepted the stand of the
respondent-State that conviction is to be made for culpable
homicide.

4. The respective stand taken before the High Court was re-
iterated in this appeal.

5. Section 304A speaks of causing death by negligence.
This section applies to rash and negligence acts and does not
apply to cases where death has been voluntarily caused. This
section obviously does not apply to cases where there is an
intention to cause death or knowledge that the act will in all
probability cause death. It only applies to cases in which
without any such intention or knowledge death is caused by
what is described as a rash and negligent act. A negligent act
is an act done without doing something which a reasonable
man guided upon those considerations which ordinarily
regulate the conduct of human affairs would do or act which a
prudent or reasonable man would not do in the circumstances
attending it. A rash act is a negligent act done precipitately.
Negligence is the genes, of which rashness is the species. It
has sometimes been observed that in rashness the action is
done precipitately that the mischievous or illegal consequences
may fall, but with a hope that they will not. Lord Atkin in
Andrews v. Director of Public Prosecutions (1937) AC 576 at
p.583 = 2 All E.R. 552) observed as under:
"Simple lack of care such as will constitute
civil liability is not enough. For purposes of the
criminal law there are degrees of negligence;
and a very high degree of negligence is
required to be proved before the felony is
established. Probably of all the epithets that
can be applied 'recklessness' most nearly
covers the case. It is difficult to visualize a
case of death caused by reckless driving in the
connotation of that term in ordinary speech
which would not justify a conviction for
manslaughter; but it is probably not all
embracing, for 'recklessness' suggests an
indifference to risk whereas the accused may
have appreciated the risk and intended to
avoid it, and yet shown in the means adopted
to avoid the risk such a high degree of
negligence as would justify a conviction."



6. Section 304-A applies to cases where there is no
intention to cause death and no knowledge that the act done
in all probability will cause death. The provision is directed at
offences outside the range of Sections 299 and 300 IPC. The
provision applies only to such acts which are rash and
negligent and are directly cause of death of another person.
Negligence and rashness are essential elements under Section
304-A. Culpable negligence lies in the failure to exercise
reasonable and proper care and the extent of its
reasonableness will always depend upon the circumstances of
each case. Rashness means doing an act with the
consciousness of a risk that evil consequences will follow but
with the hope that it will not. Negligence is a breach of duty
imposed by law. In criminal cases, the amount and degree of
negligence are determining factors. A question whether the
accused's conduct amounted to culpable rashness or
negligence depends directly on the question as to what is the
amount of care and circumspection which a prudent and
reasonable man would consider to be sufficient considering all
the circumstances of the case. Criminal rashness means
hazarding a dangerous or wanton act with the knowledge that
it is dangerous or wanton and the further knowledge that it
may cause injury but done without any intention to cause
injury or knowledge that it would probably be caused.

7. As noted above, "Rashness" consists in hazarding a
dangerous or wanton act with the knowledge that it is so, and
that it may cause injury. The criminality lies in such a case in
running the risk of doing such an act with recklessness or
indifference as to the consequences. Criminal negligence on
the other hand, is the gross and culpable neglect or failure to
exercise that reasonable and proper care and precaution to
guard against injury either to the public generally or to an
individual in particular, which, having regard to all the
circumstances out of which the charge has arisen it was the
imperative duty of the accused person to have adopted.
8. The distinction has been very aptly pointed out by
Holloway J. in these words:

''Culpable rashness is acting with the
consciousness that the mischievous and
illegal consequences may follow, but with the
hope that they will not, and often with the
belief that the actor has taken sufficient
precautions to prevent their happening. The
imputability arises from acting despite the
consciousness. Culpable negligence is acting
without the consciousness that the illegal and
mischievous effect will follow, but In
circumstances which show that the actor has
not exercised the caution incumbent upon
him and that if he had, he would have had
the consciousness. The imputability arises
from the negligence of the civic duty of
circumspection." (See In re: Nidamorti
Nagabhusanam 7 Mad. H.C.R. 119)


9. Vehicular accidents resulting in deaths and injuries are
spiraling.

10. The Editorial under the heading "Road Traffic Injuries &
fatalities in India # a modern epidemic" in Indian J. Med. Res.
123, January 2006 contains some interesting observations.
The relevant portions read as follows:

"The United Nations General Assembly
adopted a resolution on road safety on October
26, 2005 which invites Member States to
implement the recommendations of the World
Report on Road Traffic Injury Prevention; to
participate in the first United Nations Global
Road Safety Week; and to recognize the third
Sunday in November of every year as the World
Day of Remembrance for Road Traffic Victims'.
This resolution follows the publication of The
World Report on Road Traffic Injury Prevention
by the World Health Organization in 2004. This
report highlights the fact that all over the world
working age people are more likely to suffer
hospitalization, permanent disability and death
due to road traffic injuries than most other
diseases. The situation in India is not very
different.

About 82,000 persons were killed on
Indian roads in 2002. Official statistics
regarding serious injuries are not reliable as
they underestimate the actual number, but it
is estimated that the number of people
hospitalized may be 15-20 times the number
killed. In a do-nothing scenario, it is possible
that India will have 1,20,000 - 1,30,000 road
traffic fatalities in the year 2008 and possibly
1,50,000 - 1,75,000 in 2015. Our vision
should aim at reducing the fatalities to less
than 1,00,000 in the short term (2008) and
less than 70,000 in the long term (2015).







Safety measures for the near future


Motor vehicle occupants: (i) Enforcement
of seatbelt use laws countrywide; (ii)
restricting travel in front seat of cars by
children has the potential of reducing injuries
dramatically; and (iii) bus and truck occupant
injuries, fatalities, and injuries caused to
other road users can be reduced significantly
by enforcing strict observance of speed limit
regulations on highways. Ensuring that bus
timetables and truck movement schedules
make it possible for drivers to observe speed
limits with ease. Random speed checking on
highways would help ensure such measures.




Road safety strategies - Long term



Traffic calming and speed control: (i)
Aim at implementing speed control and traffic
calming measures in all urban areas and at
appropriate locations on rural highways by
altering road design, vehicle monitoring
through intelligent transport systems, and
vehicle design by the year 2015. This measure
is likely to give us the maximum savings in
terms of lives and serious injuries; and (ii)
segregated lanes for vulnerable road users
and buses in urban areas. Non-motorized
transport and buses must be provided
segregated lanes on all major arterial roads in
urban areas. India specific designs need to be
developed and phase wise implementation
plans drawn up for all cities.

xxx xxx xxx


Vehicle safely: (i) All vehicles sold in
India should meet international
crashworthiness standards by 2010; (ii) all
buses and trucks should meet pedestrian
impact standards by 2010; (iii) all urban
buses to have low floors and automatic
closing doors; (iv) crashworthiness standards
must be developed for all indigenous vehicles
by 2010 and implemented by 2012; (v)
installation of Intelligent Transport Systems
(ITS) and other modern safety devices for
assisting and controlling drivers; and (vi)
driving under the influence of alcohol and
other drugs. A long term strategy to reduce
drinking and driving incidence to less than 10
per cent of all crashes needs to be drawn up
for the next 10 yr. Sensitization of the public
to the extent of the problem. Institution of
random roadblocks and checking on urban
roads and rural highways. Ignition interlock
on cars."

11. In "Global Road Safety" certain revealing data have also
been provided. They read as follows:-

"THE COMING PLAGUE OF ROAD TRAFFIC
INJURIES: A PREVENTABLE BURDEN FOR
RICH AND POOR COUNTRIES".

12. Almost 1.2 million people are killed each year and 20-50
million are injured or disabled, most people are unaware that
road traffic injuries are a leading cause of death and disability.

13. In developing countries, death rates from vehicle crashes
are rising, and disproportionately high in relation to the
number of crashes. According to a report published in 2000
# Developing and transitional countries cumulatively
represent over 85 percent of all road traffic deaths
# Kenya has nearly 2,000 fatalities per 10,000 crashes.
Vietnam has over 3,000 fatalities per 10,000 crashes.
# 44% of all road traffic deaths occur in the Asia/Pacific
area, which only has 16 % of the total number of motor
vehicles.
# At 71,495 and 59,927 total deaths, China and India,
respectively, had the highest number of road fatalities in the
world in 1995.-
# Pedestrian deaths represent 62 % of all traffic fatalities
in Lebanon. In most developing countries vulnerable road
users, including pedestrians, bicycle and motor cycle riders,
account for the majority of all fatalities.
# Eastern European countries represent 6% of motor
vehicles, but 11% of crash fatalities worldwide.
# The Latin America/Caribbean region has the second
highest crash costs behind Asia.
14. As vehicle use in developing countries are increasing,
road traffic injuries are expected to become the third leading
cause of death and disability worldwide by 2020. In developing
countries, each vehicle is much more lethal than the vehicles
in developed countries, because it most frequently takes the
lives not of vehicle occupants, but of vulnerable road users:
pedestrians, cyclists. Many developing countries are
increasing the rate of motorized vehicle use at up to 18% per
year. In India, for example, there has been a 23% increase in
the number of vehicles from 1990-1999 and a 60-fold increase
is predicted by 2050.

15. The human toll in such accidents is tragic. Survivors and
family members are affected not only by an immediate death
or disability, but also lifetime psychological and physical
suffering. Crashes often result in orphans, and some victims,
as young as infants, spend the rest of their lives with medical
facilities.





ECONOMIC IMPACT



16. In addition to the devastating human toll, the economic
impact of road crashes is also enormous. Many of those
injured or killed are wage earners, leaving families destitute
and without means of support. Loss of wages, property
damage, and other factors affected by road traffic crashes
represented 4.6% of the gross national product of the United
States in 1994. In developing countries, road traffic crashes
represent 3-5% of the GNP. 'The estimated annual cost of road
traffic crashes in developing countries exceeds $100 billion
(US). This amounts to nearly double the total combined
development assistance these countries receive every year
from bilateral and multi-lateral government organizations.
Globally, the estimated annual costs of road crashes are 500
billion (US).





THIS PROBLEM IS PREVENTABLE

17. We have the tools needed to combat this epidemic. In the
developed nations, proven methods such as enforcement of
laws regarding driving under the influence of alcohol or drugs,
reducing speed limits, and requiring seat belts and restraints
have shown significant reduction in traffic fatalities. Road
design and road environment, vehicle design, and road safety
standards are also strategies that successfully address traffic
safety. For maximum impact of RTI's, a systems approach
with multiple, scientifically proven prevention techniques must
be employed. Education alone has been shown to be less
effective, and often ineffective.

18. Proven interventions for developed countries require
research, modification, and testing for developing countries.
For example, developing countries face poorly designed and
maintained roadways, unsafe vehicles, drivers under the
influence of drugs or alcohol, lack of national policies, and
inadequate enforcement. Success will require significant new
resources supported by sustained political commitment.

19. When the factual scenario of the present case is
analysed, it is crystal clear that the appropriate conviction
would be under Section 304 A IPC and not Section 304 Part II
IPC. Conviction is accordingly altered. The maximum sentence
which can be imposed for offence punishable under Section
304A is two years with fine or with both. The custodial
sentence, therefore, is reduced to the maximum i.e. two years.

20. It is contended by the learned counsel for the State that
in a case of this nature two years sentence is grossly
inadequate. There is substance in this submission considering
the increasing number of vehicular accidents resulting in
death of large number of innocent persons. It is for the
legislature to provide for an appropriate sentence. But the
statute presently provides for a maximum sentence of two
years.

21. The appeal is allowed to the aforesaid extent.


How FIR (First Information of Crime) should be given to police






The law does not prescribe in which FORM First Information of Report of Crime (FIR) should be given to police.

But the police is required to write down this information in a specific Form called FIR.

When you give information of any crime to police, the complaint will look good if it contains following:

1) Who are you who is giving this information? You should give your full name address mobile number etc in complaint.

2) What has happened? If a crime has happened, details should be described.

3) When this happened? Time.

4) Where this happened? How much kilometre away from Police Station, approximately?
This will help police to decide whether he has territorial jurisdiction to investigate crime.


5) Who did what to whom? How?
Here say who did what to whom. If you know names of accused, give name. If you do not know names, say unknown persons. Try to describe them if possible.

6) Names of Accused and their address: Give details if you know.


NOW MOST IMPORTANT: Write down time of giving this information, sign it and hand it over to police

If time of giving complaint is written, a sort of timer will start on police. If police delays registering complaint or delays taking action, later, he can be pulled up by court. Superior officer as well as court can ask explanation for delay in registering FIR. This is a check.

Ask for a copy of registered FIR. Once a FIR is registered, its copy can be obtained by paying prescribed fee.

Compare, whether everything you stated has been written down in FIR. If police has missed out some important point, seek advice of lawyer for further steps.

Haresh Raichura
11/6/13





Head Notes

Allowing the appeal in part, the court

HELD: 1.1. Section 304A of the Penal Code, 1860. applies to rash and negligent acts and does not apply to causes where death has been voluntarily caused. This Section obviously does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death. It only applies to cases in which without any such intention or knowledge death is caused by what is described as a rash and negligent act.
[Para 5] [1145-b-c]

1.2. A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it. A rash act is a negligent act done precipitately. Negligence is the genes of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not. [Para 5] [1145-c-d]

Andrews v. Director of Public Prosecution, (1937) AC 576, referred to.

2. Negligence and rashness are essential elements under Section 304A. Culpable negligences lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In a criminal case, the amount and degree of negligence are determining factors. The question whether the conduct of the accused amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. [Para 6] [1145-h; 1146-a-c]

3. "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury. The criminality in such a case lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence, on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the change has arisen, it was the imperative duty of the accused person to have adopted. [Para 7] [1146-d-e]

In Re: Nidamorti Nagabhusanam 7 Mad H.C.R.119, referred to.

4. When the factual scenario of the present case is analyzed, it is crystal clear that the appropriate conviction would be under Section 304A IPC and not under Section 304 Part II IPC. Conviction is accordingly altered. The maximum sentences which can be imposed for an offence punishable under Section 304A is two years with fine or with both. The custodial sentences, therefore, is reduced to the maximum i.e. two years.
[Para 19] [1150-g]

Venkat Subramaniam T.R. and Ramesh Babu M.R. for the Appellant.

R. Sathish and M.T. George for the Respondent.

Subject

Penal Code, 1860:

Section 304A-Causing death by negligence-Negligence and rashness-Essential attributes of-Distinction between knowledge and intention-A boy aged 10 years was run over by a bus driven by the accused-Trial court found that no intention had been proved but, at the same time, held that the accused acted with the knowledge that it was likely to cause death-Hence, the accused was convicted under S.304 part II-High Court confirmed the conviction-Correctness of-Held:S.304A applies to rash and negligent acts and does not apply to cases where death has been voluntarily caused-This section does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death-A rash act is a negligent act done precipitately-Negligence is the genes of which rashness is the species-Negligence and rashness are essential elements under S.304A-Culpable negligence lies in the failure to exercise reasonable and proper care-Rashness means doing an act with the consciousness of a risk-In a criminal case, the amount and degree of negligence are determining factors-Whether the conduct of the accused amounted to culpable rashness or negligence depends directly on the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient considering all the circumstances of the case-Criminal rashness means an act done without any intention to cause injury or knowledge that it would probably be caused-On facts, conviction is under S.304A and not under S.304 Part II-Conviction altered to one under S.304A.

Words and Phrases:

"negligence" and "rashness"-Meaning of-In the context of Section 304A of the Penal Code, 1860.

According to the prosecution, a boy aged 10 years was run over by a bus driven by the appellant-accused. During the investigation it was revealed that the bus was being driven with a very high speed and therefore, the appellant was charged under Section 302 of the Penal Code, 1860.

The trial court found that no intention had been proved in the case, but, at the same time, held that the accused acted with the knowledge that it was likely to cause death. Hence, the trial court held that the act committed by the appellant was culpable homicide not amounting to murder punishable under Section 304 Part II IPC and sentenced him to undergo rigorous imprisonment for five years. The High Court did not accept the stand that the case was covered under Section 304A IPC and confirmed the conviction. Hence the appeal.

Citation

2007 AIR 2378, 2007(7 )SCR1141, , 2007(8 )SCALE605 , 2007(9 )JT346

Judgement

CASE NO.:
Appeal (crl.) 775 of 2005

PETITIONER:
Prabhakaran

RESPONDENT:
State of Kerala

DATE OF JUDGMENT: 21/06/2007

BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT:
J U D G M E N T


Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the order passed by the
learned Single Judge of the Kerala High Court. By the
impugned order the appellant was found guilty of the offence
punishable under Section 304 Part II of the Indian Penal Code,
1860 (in short 'IPC'). Learned Sessions Judge, Kozhikode, had
convicted the appellant for the offence punishable under
Section 304 Part II IPC. The High Court found the same to be
in order. Custodial sentence of five years was confirmed.
2. The background facts in a nutshell are as follows:

A boy aged 10 years residing in a hostel of the Tribal
Welfare Department, while he was a student of 4th standard in
a nearby school, was run over by a bus driven by the appellant
in the middle of the road. The investigation by the police
revealed that there was evidence to the effect that even the
passengers in the bus were alarmed of the enormous speed in
which it was being driven and had cautioned the driver to stop
even crying, as they had seen the school children crossing the
road in a queue. The investigation also revealed that even the
children crossing the road had raised both hands for stopping
the vehicle. The passengers and pedestrians were of the view
that the bus was being driven at a high speed and that they
had cried aloud to stop the bus. It was, in spite of all these,
that the bus ran over the said student on his head and the
bus could be stopped only 15 to 20 feet ahead of the spot of
occurrence. In the light of the said evidence, the investigating
officer felt that there was real intention on the part of the
appellant/driver of the bus to cause death of persons to whom
harm may be caused by reason of hitting the bus and he was
charged with offence punishable under Section 302 IPC. The
court below found that no intention had been proved in the
case. But, at the same time, the accused acted with the
knowledge that it was likely to cause death. So, the act
committed by the appellant was culpable homicide not
amounting to murder punishable under Section 304 Part II
IPC. Convicting him for the said offence, he was sentenced to
undergo rigorous imprisonment for five years and to pay a fine
of Rs.15,000/- with a default sentence of imprisonment for
three years. This was assailed in appeal.

3. The High Court did not find any substance in the plea of
the appellant that the accused had not caused death either
with the intention of causing death or with the intention to
cause such bodily injury as is likely to cause death or with the
knowledge that he is likely to cause such act to cause the
death. It was submitted that case is covered under Section
304A IPC. Same was not accepted. So, it was held that this is
a case of culpable homicide. It accepted the stand of the
respondent-State that conviction is to be made for culpable
homicide.

4. The respective stand taken before the High Court was re-
iterated in this appeal.

5. Section 304A speaks of causing death by negligence.
This section applies to rash and negligence acts and does not
apply to cases where death has been voluntarily caused. This
section obviously does not apply to cases where there is an
intention to cause death or knowledge that the act will in all
probability cause death. It only applies to cases in which
without any such intention or knowledge death is caused by
what is described as a rash and negligent act. A negligent act
is an act done without doing something which a reasonable
man guided upon those considerations which ordinarily
regulate the conduct of human affairs would do or act which a
prudent or reasonable man would not do in the circumstances
attending it. A rash act is a negligent act done precipitately.
Negligence is the genes, of which rashness is the species. It
has sometimes been observed that in rashness the action is
done precipitately that the mischievous or illegal consequences
may fall, but with a hope that they will not. Lord Atkin in
Andrews v. Director of Public Prosecutions (1937) AC 576 at
p.583 = 2 All E.R. 552) observed as under:
"Simple lack of care such as will constitute
civil liability is not enough. For purposes of the
criminal law there are degrees of negligence;
and a very high degree of negligence is
required to be proved before the felony is
established. Probably of all the epithets that
can be applied 'recklessness' most nearly
covers the case. It is difficult to visualize a
case of death caused by reckless driving in the
connotation of that term in ordinary speech
which would not justify a conviction for
manslaughter; but it is probably not all
embracing, for 'recklessness' suggests an
indifference to risk whereas the accused may
have appreciated the risk and intended to
avoid it, and yet shown in the means adopted
to avoid the risk such a high degree of
negligence as would justify a conviction."



6. Section 304-A applies to cases where there is no
intention to cause death and no knowledge that the act done
in all probability will cause death. The provision is directed at
offences outside the range of Sections 299 and 300 IPC. The
provision applies only to such acts which are rash and
negligent and are directly cause of death of another person.
Negligence and rashness are essential elements under Section
304-A. Culpable negligence lies in the failure to exercise
reasonable and proper care and the extent of its
reasonableness will always depend upon the circumstances of
each case. Rashness means doing an act with the
consciousness of a risk that evil consequences will follow but
with the hope that it will not. Negligence is a breach of duty
imposed by law. In criminal cases, the amount and degree of
negligence are determining factors. A question whether the
accused's conduct amounted to culpable rashness or
negligence depends directly on the question as to what is the
amount of care and circumspection which a prudent and
reasonable man would consider to be sufficient considering all
the circumstances of the case. Criminal rashness means
hazarding a dangerous or wanton act with the knowledge that
it is dangerous or wanton and the further knowledge that it
may cause injury but done without any intention to cause
injury or knowledge that it would probably be caused.

7. As noted above, "Rashness" consists in hazarding a
dangerous or wanton act with the knowledge that it is so, and
that it may cause injury. The criminality lies in such a case in
running the risk of doing such an act with recklessness or
indifference as to the consequences. Criminal negligence on
the other hand, is the gross and culpable neglect or failure to
exercise that reasonable and proper care and precaution to
guard against injury either to the public generally or to an
individual in particular, which, having regard to all the
circumstances out of which the charge has arisen it was the
imperative duty of the accused person to have adopted.
8. The distinction has been very aptly pointed out by
Holloway J. in these words:

''Culpable rashness is acting with the
consciousness that the mischievous and
illegal consequences may follow, but with the
hope that they will not, and often with the
belief that the actor has taken sufficient
precautions to prevent their happening. The
imputability arises from acting despite the
consciousness. Culpable negligence is acting
without the consciousness that the illegal and
mischievous effect will follow, but In
circumstances which show that the actor has
not exercised the caution incumbent upon
him and that if he had, he would have had
the consciousness. The imputability arises
from the negligence of the civic duty of
circumspection." (See In re: Nidamorti
Nagabhusanam 7 Mad. H.C.R. 119)


9. Vehicular accidents resulting in deaths and injuries are
spiraling.

10. The Editorial under the heading "Road Traffic Injuries &
fatalities in India # a modern epidemic" in Indian J. Med. Res.
123, January 2006 contains some interesting observations.
The relevant portions read as follows:

"The United Nations General Assembly
adopted a resolution on road safety on October
26, 2005 which invites Member States to
implement the recommendations of the World
Report on Road Traffic Injury Prevention; to
participate in the first United Nations Global
Road Safety Week; and to recognize the third
Sunday in November of every year as the World
Day of Remembrance for Road Traffic Victims'.
This resolution follows the publication of The
World Report on Road Traffic Injury Prevention
by the World Health Organization in 2004. This
report highlights the fact that all over the world
working age people are more likely to suffer
hospitalization, permanent disability and death
due to road traffic injuries than most other
diseases. The situation in India is not very
different.

About 82,000 persons were killed on
Indian roads in 2002. Official statistics
regarding serious injuries are not reliable as
they underestimate the actual number, but it
is estimated that the number of people
hospitalized may be 15-20 times the number
killed. In a do-nothing scenario, it is possible
that India will have 1,20,000 - 1,30,000 road
traffic fatalities in the year 2008 and possibly
1,50,000 - 1,75,000 in 2015. Our vision
should aim at reducing the fatalities to less
than 1,00,000 in the short term (2008) and
less than 70,000 in the long term (2015).







Safety measures for the near future


Motor vehicle occupants: (i) Enforcement
of seatbelt use laws countrywide; (ii)
restricting travel in front seat of cars by
children has the potential of reducing injuries
dramatically; and (iii) bus and truck occupant
injuries, fatalities, and injuries caused to
other road users can be reduced significantly
by enforcing strict observance of speed limit
regulations on highways. Ensuring that bus
timetables and truck movement schedules
make it possible for drivers to observe speed
limits with ease. Random speed checking on
highways would help ensure such measures.




Road safety strategies - Long term



Traffic calming and speed control: (i)
Aim at implementing speed control and traffic
calming measures in all urban areas and at
appropriate locations on rural highways by
altering road design, vehicle monitoring
through intelligent transport systems, and
vehicle design by the year 2015. This measure
is likely to give us the maximum savings in
terms of lives and serious injuries; and (ii)
segregated lanes for vulnerable road users
and buses in urban areas. Non-motorized
transport and buses must be provided
segregated lanes on all major arterial roads in
urban areas. India specific designs need to be
developed and phase wise implementation
plans drawn up for all cities.

xxx xxx xxx


Vehicle safely: (i) All vehicles sold in
India should meet international
crashworthiness standards by 2010; (ii) all
buses and trucks should meet pedestrian
impact standards by 2010; (iii) all urban
buses to have low floors and automatic
closing doors; (iv) crashworthiness standards
must be developed for all indigenous vehicles
by 2010 and implemented by 2012; (v)
installation of Intelligent Transport Systems
(ITS) and other modern safety devices for
assisting and controlling drivers; and (vi)
driving under the influence of alcohol and
other drugs. A long term strategy to reduce
drinking and driving incidence to less than 10
per cent of all crashes needs to be drawn up
for the next 10 yr. Sensitization of the public
to the extent of the problem. Institution of
random roadblocks and checking on urban
roads and rural highways. Ignition interlock
on cars."

11. In "Global Road Safety" certain revealing data have also
been provided. They read as follows:-

"THE COMING PLAGUE OF ROAD TRAFFIC
INJURIES: A PREVENTABLE BURDEN FOR
RICH AND POOR COUNTRIES".

12. Almost 1.2 million people are killed each year and 20-50
million are injured or disabled, most people are unaware that
road traffic injuries are a leading cause of death and disability.

13. In developing countries, death rates from vehicle crashes
are rising, and disproportionately high in relation to the
number of crashes. According to a report published in 2000
# Developing and transitional countries cumulatively
represent over 85 percent of all road traffic deaths
# Kenya has nearly 2,000 fatalities per 10,000 crashes.
Vietnam has over 3,000 fatalities per 10,000 crashes.
# 44% of all road traffic deaths occur in the Asia/Pacific
area, which only has 16 % of the total number of motor
vehicles.
# At 71,495 and 59,927 total deaths, China and India,
respectively, had the highest number of road fatalities in the
world in 1995.-
# Pedestrian deaths represent 62 % of all traffic fatalities
in Lebanon. In most developing countries vulnerable road
users, including pedestrians, bicycle and motor cycle riders,
account for the majority of all fatalities.
# Eastern European countries represent 6% of motor
vehicles, but 11% of crash fatalities worldwide.
# The Latin America/Caribbean region has the second
highest crash costs behind Asia.
14. As vehicle use in developing countries are increasing,
road traffic injuries are expected to become the third leading
cause of death and disability worldwide by 2020. In developing
countries, each vehicle is much more lethal than the vehicles
in developed countries, because it most frequently takes the
lives not of vehicle occupants, but of vulnerable road users:
pedestrians, cyclists. Many developing countries are
increasing the rate of motorized vehicle use at up to 18% per
year. In India, for example, there has been a 23% increase in
the number of vehicles from 1990-1999 and a 60-fold increase
is predicted by 2050.

15. The human toll in such accidents is tragic. Survivors and
family members are affected not only by an immediate death
or disability, but also lifetime psychological and physical
suffering. Crashes often result in orphans, and some victims,
as young as infants, spend the rest of their lives with medical
facilities.





ECONOMIC IMPACT



16. In addition to the devastating human toll, the economic
impact of road crashes is also enormous. Many of those
injured or killed are wage earners, leaving families destitute
and without means of support. Loss of wages, property
damage, and other factors affected by road traffic crashes
represented 4.6% of the gross national product of the United
States in 1994. In developing countries, road traffic crashes
represent 3-5% of the GNP. 'The estimated annual cost of road
traffic crashes in developing countries exceeds $100 billion
(US). This amounts to nearly double the total combined
development assistance these countries receive every year
from bilateral and multi-lateral government organizations.
Globally, the estimated annual costs of road crashes are 500
billion (US).





THIS PROBLEM IS PREVENTABLE

17. We have the tools needed to combat this epidemic. In the
developed nations, proven methods such as enforcement of
laws regarding driving under the influence of alcohol or drugs,
reducing speed limits, and requiring seat belts and restraints
have shown significant reduction in traffic fatalities. Road
design and road environment, vehicle design, and road safety
standards are also strategies that successfully address traffic
safety. For maximum impact of RTI's, a systems approach
with multiple, scientifically proven prevention techniques must
be employed. Education alone has been shown to be less
effective, and often ineffective.

18. Proven interventions for developed countries require
research, modification, and testing for developing countries.
For example, developing countries face poorly designed and
maintained roadways, unsafe vehicles, drivers under the
influence of drugs or alcohol, lack of national policies, and
inadequate enforcement. Success will require significant new
resources supported by sustained political commitment.

19. When the factual scenario of the present case is
analysed, it is crystal clear that the appropriate conviction
would be under Section 304 A IPC and not Section 304 Part II
IPC. Conviction is accordingly altered. The maximum sentence
which can be imposed for offence punishable under Section
304A is two years with fine or with both. The custodial
sentence, therefore, is reduced to the maximum i.e. two years.

20. It is contended by the learned counsel for the State that
in a case of this nature two years sentence is grossly
inadequate. There is substance in this submission considering
the increasing number of vehicular accidents resulting in
death of large number of innocent persons. It is for the
legislature to provide for an appropriate sentence. But the
statute presently provides for a maximum sentence of two
years.

21. The appeal is allowed to the aforesaid extent.