Allowed

Mohammed Arif v. the State of Karnataka by

Karnataka HC2 Apr 2024CRL.RP/94/2021

Case brief

AI extract

What is this about?

Accused in a fatal road-accident case sought alteration of the charge from Section 304 to Section 304A IPC. The High Court found no mens rea or knowledge of likely death on the charge-sheet material, allowed the revision, set aside the Sessions Court's order, and directed transfer to the Magistrate for trial under Section 304A IPC and Motor Vehicles Act offences.

What did the court decide?

Order dated 16.10.2020 in SC.No.175/2014 set aside; Sessions Court directed to transfer case to jurisdictional Magistrate for trial under Section 304A IPC and Motor Vehicles Act offences.

Mohammed Arif Vs the State of Karnataka by — Murder and Culpable Homicide | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:13537 CRL.RP No. 94 of 2021

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 2^ND DAY OF APRIL, 2024

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE G BASAVARAJA

¶6

CRIMINAL REVISION PETITION NO. 94 OF 2021

¶7

BETWEEN:

¶8

MOHAMMED ARIF S/O. MOHAMMED UMMER, AGED ABOUT 32 YEARS, R/AT NO.61, 7^TH CROSS, MADINANAGAR, BOMMANAHALLI BENGALURU - 560 068

¶9

…PETITIONER

¶10

(BY SRI. MRC MANOHAR, ADVOCATE)

¶11

Digitally signed by SANDHYA S Location: High Court of Karnataka

¶12

AND:

¶13

THE STATE OF KARNATAKA BY KUMARASWAMY LAYOUT POLICE BENGALURU, REP BY STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BANGALORE - 560 001

¶14

…RESPONDENT

¶15

(BY SRI. RAJAT SUBARAMANYAM, HCGP)

¶16

THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 16.10.2020 PASSED IN SC.NO.175/2014 REGISTERED BY THE KUMARSWAMY LAYOUT POLICE, BENGALURU FOR OFFENCE P/U/S.279, 304 OF IPC AND UNDER SECTION 5 R/W 180, 14 R/W 106, 190 R/W 115 OF INDIAN MOTOR VEHICLE ACT, PENDING ON THE FILE OF LXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-70) AND DIRECT THE LEARNED SESSIONS JUDGE TO FRAME CHARGES UNDER SECTION 279, 304(A) OF IPC AND UNDER SECTION 5 R/W 180, 14 R/W 106, 190 R/W 115 OF INDIAN MOTOR VEHICLE ACT.

¶17

¶18

NC: 2024:KHC:13537 CRL.RP No. 94 of 2021

¶19

THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

¶20

ORDER

¶21

This revision petition is preferred against the order dated 16.10.2020 passed in SC.No.175/2014 by the LXIX Additional City Civil and Sessions Judge (CCH-70), Bengaluru on application filed under Section 228 of Code of Criminal Procedure by accused No.1.

¶22

The brief facts of the case in nutshell are that accused No.3 is the owner of the vehicle bearing Reg.No.KA-05-MA-1997, accused No.2 was the custodian and accused No.1 requested accused No.2 that he is in need of car and as per the request of accused No.1, accused No.2 contacted accused No.3 to handover the car and its key to accused No.1 and accordingly, the said vehicle has been handed over to accused No.1 and on 07.07.2013, accused No.1 was proceeding on Ring Road with the vehicle and met with an accident at about 11.00 p.m. and in the alleged act, three persons died on the spot and on the basis of the said complaint, a case was

¶23

3 - NC: 2024:KHC:13537 CRL.RP No. 94 of 2021

¶24

registered in crime No.239/2013 and after investigation, the investigating officer has submitted the charge sheet against accused Nos.1 for the commission of offence punishable under Sections 279 and 304 of Indian Penal Code and under Section 5 read with 180, 14 r/w 106, 190 r/w 115 of IMV Act, as against accused No.2 for the commission of offence punishable under Section 5 read with 180, 14 r/w 106, 190 r/w 115 of IMV Act and so also against accused No.3 for the commission of offence punishable under Section 14 r/w 106 of IMV Act. After filing of charge sheet, the Trial Court has taken cognizance against accused Nos.1 to 3 for the aforesaid offences and case was registered in CC.No.19951/2013 and summons were issued to the accused. In response to summons, the accused appeared before the Court. Thereafter, the case was committed to the Principal City Civil and Sessions Judge, Bengaluru and it was registered in SC.No.175/2014. Accused Nos.1 and 2 have filed applications under Section 227 and 228 of Cr.P.C. and the

¶25

4 - NC: 2024:KHC:13537 CRL.RP No. 94 of 2021

¶26

same were rejected by the Sessions Judge. Being aggrieved by the order of the Sessions Court, accused No.2 has filed revision petition in Crl.RP.No.307/2018 and

¶27

so also accused No.1 has filed revision petition in Crl.RP.No.1032/2016 before this Court. This Court vide order dated 20.09.2018 has allowed the Crl.RP. No.307/2018 filed by accused No.2 and discharge him from the alleged commission of offences and dismissed Crl.RP.No.1302/2016 filed by accused No.1 with a liberty to file an appropriate application in accordance with law to alter the charge and the trial court, after considering the material, can appropriately and legally frame the charge. Thereafter, accused No.1 has filed an application under Section 228 of Cr.P.C. before the learned Sessions Judge to alter the charge from Section 304 of Indian Penal Code to 304A of Indian Penal Code and the same came to be rejected by the learned Sessions Judge vide order dated 16.10.2020. Being aggrieved by the order passed by the

¶28

5 - NC: 2024:KHC:13537 CRL.RP No. 94 of 2021

¶29

learned Sessions Judge, the revision petitioner has filed this present revision petition.

¶30

Learned counsel for revision petitioner submits that the order of dismissal of the application for alteration of charge is bad in law and materials on record. The entire charge sheet only discloses rash and negligent driving of the car and there is no motive or knowledge that such incident may cause death of the parties. The entire charge sheet material does not show that the petitioner had an intention or knowledge to cause death of the scooterists. The driving against one way is an offence under the Motor Vehicles Act. The prosecution has invoked the penal provisions of the Motor Vehicle Act also. That viewing in any angle, the charge sheet materials does not constitute the offence which is punishable under Section 304 of Indian Penal Code. The Trial Judge has failed to appreciate the argument advanced before the Court. The alteration can be done at the time of passing judgment depending upon the evidence adduced before

¶31

6 - NC: 2024:KHC:13537 CRL.RP No. 94 of 2021

¶32

the Court during trial. The approach of the Trial Court is not proper and the Courts have got power to alter the charge before the commencement of trial. That from the available materials the case of prosecution is squarely falls under Section 304A of Indian Penal Code which is triable by the Magistrate and whereas Section 304 of Indian Penal Code is triable by the Court of Sessions. If the proceedings are allowed by framing charge under Section 304 of Indian Penal Code, serious prejudice will be caused to the petitioner and also it is abuse of process of law. On all these grounds, he sought to alter the charge as 304A Indian Penal Code instead of 304 of Indian Penal Code. To substantiate his arguments, he relied upon the decisions rendered by the Hon'ble Apex Court in the cases of Naresh Giri vs. State of M.P. reported in (2008) 1 SCC 791 and Prabhakaran vs. State of Kerala reported in (2007)4 SCC 269. He also relied on the decision of this Court in Crl.RP.No.358/2011 dated 28.03.2014.

¶33

7 - NC: 2024:KHC:13537 CRL.RP No. 94 of 2021

¶34

Learned High Court Government Pleader

¶35

submits that the Trial Court has passed the impugned order in accordance with law and facts and that there are

¶36

no grounds to interfere with the order passed by the Trial Court. On this ground, he sought to reject the revision petition.

¶37

Having heard the arguments on both sides and

¶38

on perusal of materials placed before this Court, the

¶39

following points would arise for my consideration:

¶40

i. Whether the revision petitioner has made out the grounds to alter the charge as 304A of Indian Penal Code instead of 304 of Indian Penal Code against accused No.1?

¶41

ii. What order?

¶42

My answer to the above points are as under:

¶43

Point No.1: in the affirmative

¶44

Point No.2: as per final order

¶45

Regarding point No.1:

¶46

I have carefully examined the material placed

¶47

before the Court.

¶48

8 - NC: 2024:KHC:13537 CRL.RP No. 94 of 2021

¶49

On the basis of the complaint filed by one Subramani, Kumaraswamy Layout Police have registered the First Information Report in crime No.239/2013 against accused Nos.1 to 3 for offence punishable under Section 279 and 304 of Indian Penal Code and submitted First Information Report to the Court. After completion of investigation, the investigating officer has submitted the charge sheet against accused No.1 for the commission of offence punishable under Sections 279 and 304 of Indian Penal Code and under Section 5 read with 180, 14 r/w 106, 190 r/w 115 of IMV Act as against accused No.2 for the commission of offence punishable under Section 5 read with 180, 14 r/w 106, 190 r/w 115 of IMV Act and so also against accused No.3 for the commission of offence punishable under Section 14 r/w 106 of IMV Act. After appearance, accused No.2 had filed application for discharge of offence and the same came to be dismissed by the Sessions Court. Being aggrieved by the order passed by the Sessions Court, accused No.2 has filed

¶50

9 - NC: 2024:KHC:13537 CRL.RP No. 94 of 2021

¶51

revision petition in Crl.RP.No.307/2018 and this Court vide order dated 20.09.2018 has allowed the Crl.RP. No.307/2018 filed by accused No.2 and discharge him from the alleged commission of offences. Being aggrieved by the order passed by this Court, accused No.1 has preferred this revision petition. The prosecution has not challenged the order of the Sessions Court before any competent Court. The present revision petitioner has also filed application to discharge him from the alleged offence and the same came to be dismissed by the Trial Court. Being aggrieved by the said order, the revision petitioner has filed Crl.RP.No.1032/2016 and the same was dismissed by this Court as per order dated 20.09.2018 and dismissed the same with a liberty to file an appropriate application in accordance with law to alter the charge. Accordingly, the present revision petitioner has filed application under Section 228 of Cr.P.C. to alter the charge from 304 Indian Penal Code to 304A Indian Penal Code and the same was rejected by the learned Sessions

¶52

10 - NC: 2024:KHC:13537 CRL.RP No. 94 of 2021

¶53

Judge on the ground that if the Court comes to the conclusion that the evidence produced in the Trial Court makes out lesser offence, then it is always open to the Court to alter the charge at appropriate stage and also commit the accused for the lesser offences.

¶54

On careful examination of the material placed before this Court, it is crystal clear that accused No.1 being the driver of the car bearing Reg.No. KA-05-MA1997 drove the same in a high speed without having any valid driving licence in one way traffic road in a rash and negligent manner and dashed to the Activa Honda bearing Reg.No.KA-01-EC-6410 thereby caused death of three persons who were on the scooter.

¶55

The entire charge sheet materials does not indicate that there was mens rea to do away with the life of three persons. If we look at the material on record, it is clear that there is Section 304A Indian Penal Code and other alleged offences and causing death of Nagaveni and two others on account of rash and negligent driving and

¶56

11 - NC: 2024:KHC:13537 CRL.RP No. 94 of 2021

¶57

there was no intent to cause the death of three persons or that the accused has no knowledge to cause death. As such, there are no ingredients to frame the charge for the commission of offence punishable under Section 304 Indian Penal Code.

¶58

Considering the facts and circumstances of the case and also keeping in mind the decisions relied upon by the learned counsel for the revision petitioner, the revision petitioner has made out the case to alter the offence punishable under Section 304 Indian Penal Code to 304A Indian Penal Code. Hence, I answer point No.1 in affirmative.

¶59

Regarding point No.2:

¶60

For the aforesaid reasons and discussions, I proceed to pass the following:

¶61

ORDER

¶62

i. Criminal revision petition is allowed .

¶63

12 -

¶64

NC: 2024:KHC:13537 CRL.RP No. 94 of 2021

¶65

ii. The order dated 16.10.2020 passed in SC.No.175/2014 by the LXIX Additional City Civil and Sessions Judge, Bengaluru is set aside.

¶66

iii. The offence punishable under Section 304A of Indian Penal Code and other offences under Motor Vehicles Act are triable by the Court of Magistrate against accused No.1. Hence, the Sessions Court is directed to transfer the case to jurisdictional Magistrate Court to try and dispose of the case in accordance with law for the commission of offence punishable under Section 304A Indian Penal Code and other offences as alleged by the prosecution against accused No.1.

¶67

iv. Registry is directed to send copy of this order to the concerned Courts.

¶68

Sd/JUDGE

¶69

SSD

¶70

List No.: 1 Sl No.: 9

Mohammed Arif v. the State of Karnataka by

Case brief

What is this about?

What did the court decide?

Mohammed Arif v. the State of Karnataka by

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mahadevi and Anr. Vs the Chief Engineer and Ors.

Sunitha Vs Kolli Mallikarjun

Sunitha Vs Kolli Mallikarjun

The State of Karnataka by Vs B Rajeeva (A-1)

Sri. Ram Rathan J. Setty Vs Sri. Ganapathi M.S.

Shivaiah Vs State by Pandavapura Police