1 - Suresh Kumar Kochar S/o Late Deepchand Kochar, Aged About 73 Years, Saki v. 1 - State of Chhattisgarh Through Police Station Gandai, District Khairagarh, Chhuikhadan, Gandai
Case Details
1 / 11 2025:CGHC:15813 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 9 of 2025 1 - Suresh Kumar Kochar S/o Late Deepchand Kochar, Aged About 73 Years, Saki Ward No, 23 Mahavir Chowk Kawardha, District Kabirdham (C.G.) ... Applicant versus 1 - State of Chhattisgarh Through Police Station Gandai, District Khairagarh, Chhuikhadan, Gandai (C.G.) ... Respondent For Applicant : Ms. Sharmila Singhai Senior Advocate with Ms. Kanchan Kalwani, Advocate. For State : Ms. Pragya Shrivastava, Deputy Govt. Advocate. Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 03-04-2025 1. The applicant has filed this Criminal Revision under Section 438 of Bharatiya Nagarik Suraksha Sanhita, 2023 against the order dated 16-10-2024 (Annexure A/1) passed by the learned Additional Sessions Judge, Khairagarh, District Khairagarh-Chuikhadan-Gandai, Chhattisgarh (C.G.) in Sessions Trial No 31/2024
Facts
by which the learned trial Court has framed charges against the applicant under Sections 279 and 304 of IPC and Section 3/181 of the Motor Vehicles Act, 1988 and the application filed by the applicant under Section 227 of the Cr.P.C. has been rejected. 2. Brief facts of the case are that the applicant is an accused in the offence of Crime No. 8/2024 registered at Police Station P.S. Gandai, District Khairagarh- Digitally signed by MOHAMMAD AADIL KHAN 2 / 11 Chhuikhadan-Gandai for the offence under Section 304 of the IPC and Section 3/181 of the Motor Vehicles Act. On 05-01-2024 FIR has been registered against the applicant at Police Station Gandai alleging that on 05-01-2024 at about 18:30 hours at Village Gandai main road near rest house, the applicant caused accident to the deceased who was subsequently identified as Dinesh Yadav resident of Village Jhuranadi. By the accident the deceased Dinesh Yadav was stuck between the wheels in the lower part of the vehicle and dragged towards certain distance which is measured about a kilometer. The report was lodged against unknown white colour vehicle and after investigation it was found that its was the vehicle bearing registration No.CG 09 JC 4777 and then the police has seized the vehicle and after obtaining necessary information, the present applicant was arrested by the police. The dead body of unknown person was sent for its postmortem to community health center Gandai and in the postmortem report the doctor has opined cause of death is due to hemorrhagic shock consequent upon hemoperitoneum and polytrauma and possible in case of road traffice accident and the injuries are antemortem in nature. On the basis of the FIR as well as the material collected during the investigation the police has filed the charge sheet against the applicant for the offence under Section 279, 304 of the IPC and Section 3/181 of the Motor Vehicles Act, 1988 before the learned Judicial Magistrate First Class Chhuikhadan. Since the charge sheet was filed under Section 304 of the IPC the case was committed to the learned Sessions Court for its trial. The applicant had filed an application under Section 227 of the Cr.P.C. before the learned trial Court on 04-09-2024 and prays for discharge from the offence of Section 304 of the IPC and submitted that the offence, if any, falls under Section 304A of the IPC and not under Section 304 of the IPC. The application filed by the applicant is decided on 16-10-20204 and the same has been dismissed by the learned trial Court holding that there are sufficient material to frame charge for the offence under Section 304, 279 of the IPC and Section 3/181 of the Motor Vehicles Act and on the same day following charges have been framed against the applicant:- 3 / 11 “01& vkius fnukad 05@01@2024 dh 'kke yxHkx 18-30 cts LFkku esu jksM jsLV gkml ds igys xaMbZ Fkkuk x.MbZ ftyk&[kSjkx<+&NqbZ[knku&x.MbZ ¼N-x-½ esa vius okgu cysuks dkj dzekad CG 09 JC 4777 dks yksd ekxZ esa mis{kk ,oa mrkoysiu ls pykdj ekuo thom esa ladVkiUu dkfjr fd;k ? 02& vkius mDr ?kVuk fnukad le; ,oa yksd LFkku ij vius mDr okgu cysuks dkj dzekad CG 09 JC 4777 dks bl Kku ds lkFk mis{kk ,oa mrkoysiwoZd pykrs gq, lM+d ij py jgs fnus’k ;kno mez 35 o"kZ dks Bksdj ekjdj ?klhVrs gq,] ftlls fd mldh e`R;q dkfjr gqbZ] vkijkf/kd ekuo o/k fd;k] tks gR;k dh dksfV esa ugha vkrk gS ? 03& vkius mDr ?kVuk fnukad le; ,oa LFkku ij vius mDr cysuks dkj dzekad CG 09 JC 4777 dks fcuk oS/k vuqKfIr ds eksVj;ku vf/kfu;e ds mYya?ku esa pyk;k? vkSj blds }kjk vkius ,slk dk;Z fd;k tks Hkkjrh; n.M lafgrk dh /kkjk 279] 304 ,oa eksVj;ku vf/kfu;e dh /kkjk 3@181 ds v/khu naMuh; vijk/k gS rFkk ftuds laKku ysus dh vf/kdkfjrk bl U;k;ky; dks izkIr gSA” The said order dated 16-10-2024 is under challenge in the petition. 3. Learned Senior Counsel for the applicant would submit that there is no such material before the learned trial Court to frame charge under Section 304 of IPC and at best offence under Section 304-A of IPC can be made out. He would further submit that there was no intention on the part of the appellant to commit such offence, therefore, framing of charge is illegal and prayed for quashing of the charge. He would further submit that the learned trial Court has failed to consider that to charge any person for the offence under Section 304 of IPC, ingredients of sections 299 and 300 of IPC must be present and if these ingredients are missing then the offence under Section 304 of IPC cannot be made out. To substantiate the 4 / 11 submission, she has referred to the judgment of Dinesh Kumar Yadav vs. State of Chhattisgarh , reported in 2012 SCC Online Chh.238 and case of Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijjaya and others, reported in (1990) 4 SCC 76 and in case of Finil Biju vs. The State of Kerala (Criminal Revision Petition No. 136 of 2023 decided on 27-9-2023 and would pray for quashing of the charge framed under Section 304 of IPC. 4. On the other hand, learned State counsel supporting the impugned order of the trial Court would submit that the trial Court after considering the evidence and material placed on record has rightly framed the charge against the applicant, as such, would pray for dismissal of the Criminal Revision. 5. I have heard learned counsel for the parties and perused the record of the trial Court. 6. From the above submission, the point emerged for determination of this Court is whether the learned trial Court was justified in framing of charge under Section 304 of IPC against the applicant. 7. To appreciate this point, this Court has to ascertain the provisions of sections 304 and 304-A of IPC which read as under:- “Section 304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause 5 / 11 death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. 304A. Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”. 8. From the above provisions, it is quite vivid that for framing of charge under Section 304 of IPC, intention or knowledge of the accused in doing the act or the act has been done with premeditation should be available on record. The issue has come up for consideration before the Honble’ Supreme Court in the case of Anbazhagan vs State represented by the Inspector of Police, reported in AIR 2023 SC 3660 wherein the Hon’ble Supreme Court considering what the essential ingredients for attracting the provisions of Section 304 of IPC has held in para 60 subpara 12 as under:- “60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:- ……... (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.” 9. The Hon’ble Supreme Court in recent judgment also in the case of N. Ramkumar vs. State Represented by Inspector of Police, reported in AIR 2023 SC 4246 has reiterated the same principle. 10. The Hon’ble Supreme Court in the case of Mahadev Prasad Kaushik vs. State of Uttar Pradesh and another, reported in (2008) 14 SCC 479 has 6 / 11 considered the offence under Section 304 of IPC and Section 304-A of the IPC and has held in paragraph 23, 24 and 26 as under:- “23. Section 304A was inserted by the Indian Penal Code (Amendment) Act, 1870 (Act XXVII of 1870) and reads thus :- 304A. Causing death by negligence Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The section deals with homicidal death by rash or negligent act. It does not create a new offence. It is directed against the offences outside the range of Sections 299 and 300, IPC and covers those cases where death has been caused without `intention' or `knowledge'. The words "not amounting to culpable homicide" in the provision are significant and clearly convey that the section seeks to embrace those cases where there is neither intention to cause death, nor knowledge that the act done will in all probability result into death. It applies to acts which are rash or negligent and are directly the cause of death of another person. 24 There is thus distinction between Section 304 and Section 304A. Section 304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300, IPC. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section 300. Where intention or knowledge is the `motivating force' of the act complained of, Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death. 26. Though the term `negligence' has not been defined in the Code, it may be stated that negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do”. 11. The Hon’ble Supreme Court in the matter of Naresh Giri Vs. State of M.P., reported in (2008) 1 SCC 791 has held in para 7 to 12 as under:- “7. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done, in all probabilities, will cause death. This provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A. 7 / 11 8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence, a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other. The death so caused is not the determining factor. 9. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edition) Volume 34 paragraph 1 (para 3) as follows: "I. General principles of the law of negligence. —Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger, the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two". 10. In this context the following passage from Kenny's Outlines of Criminal Law, 19th Edition (1966) at page 38 may be usefully noted : 8 / 11 "Yet a man may bring about an event without having adverted to it at all, he may not have foreseen that his actions would have this consequence and it will come to him as a surprise. The event may be harmless or harmful, if harmful, the question rises whether there is legal liability for it. In tort, (at common law) this is decided by considering whether or not a reasonable man in the same circumstances would have realised the prospect of harm and would have stopped or changed his course so as to avoid it. If a reasonable man would not, then there is no liability and the harm must lie where it falls. But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence. The word 'negligence' denotes, and should be used only to denote, such blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in tort for damages. But it should now be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence The common habit of lawyers to qualify the word "negligence" with some moral epithet such as wicked' `gross' or `culpable' has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression in order to explain itself.” (emphasis supplied) 11. "Negligence", says the Restatement of the law of Torts published by the American Law Institute(1934) Vol. I. Section 28 "is conduct which falls below the standard established for the protection of others against unreasonable risk of harm". It is stated in Law of Torts by Fleming at page 124 (Australian Publication 1957) that this standard of conduct is ordinarily measured by what the reasonable man of ordinary prudence would do under the circumstances. In Director of Public Prosecutions v. Camplin (1978) 2 All ER 168 (HL) it was observed by Lord Diplock that (All ER p. 171f-g) "The reasonable man" was comparatively late arrival in the laws of provocation. As the law of negligence emerged in the first half of the 19th century it became the anthropomorphic embodiment of the standard of care required by law. In order to objectify the law's abstractions like "care" "reasonableness" or "foreseeability" the man of ordinary prudence was invented as a model of the standard of conduct to which all men are required to conform. 12. In Syed Akbar v. State of Kamataka, (1980) 1 SCC 30, it was held that: (SCC p. 40, para 28) "28. ….Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution 9 / 11 must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions (1937) (2) All ER 552(HL)) ‘simple lack of care such as will constitute civil liability, is not enough’; for liability under the criminal law ‘a very high degree of negligence is required to be proved….. Probably of all the epithets that can be applied “reckless” most nearly covers the case. " 12. Now coming to the facts of the present case, from bare perusal of the FIR, prima facie it is reflected that in the FIR itself it has been mentioned that due to rash and negligee driving of the car, deceased has met with an accident and thereafter he was dragged by the said vehicle about 1 kilometer. Thus, there is no material placed on record by the prosecution that the the applicant has committed the aforesaid offence with an intention or knowledge or premeditation. As such, in absence of these ingredients which are required for attracting offence under Section 304 of the IPC, the offence under Section 304 of IPC can be said to be not attracted. 13. In the light of above legal position and also considering the fact that no material has been placed by the prosecution to attract the offence under Section 304 of IPC. framing of charge and continuation of proceedings under Section 304 of the IPC would be nothing but an abuse of process of law, therefore, this Court while exercising its revision power can very well interfere with the charges framed by the learned trial Court. 14. It is also well settled legal position of law that the parameters with regard to interference in the revision petition at the stage of framing of charge is well defined i.e. existence of prima-facie case, and at this stage, the probative value of materials on record need not be gone into by the Court. The Hon'ble Supreme Court in its earlier decisions in the State of Maharashtra Vs. Som Nath Thapa (1996) 4 SCC 659 and the State of MP Vs. Mohan Lal Soni (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima-facie case. It has also been held at the stage of 10 / 11 framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial. 15. The power and jurisdiction of Higher Court under Section 397 Cr.P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in
Legal Reasoning
such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor Vs. Ramesh Chandra (2012) 9 SCC 460 where scope of Section 397 has been considered and succinctly explained as under 12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC." 16. In light of the facts and circumstances of the case, evidence available in the charge sheet as also the law laid down by the Hon'ble Supreme Court to exercise 11 / 11 revisional power to interfere at the stage of framing of charge, prima facie no case is made out to attract offence under Section 304 of IPC, therefore, continuation of criminal proceedings for the offence under Section 304 of IPC is nothing but is an abuse of process of law. 17. Accordingly, the order dated 16-10-2024 is partly set aside and order framing of charge against the applicant under Section 304 of IPC in Sessions Trial No 31/2024 is altered to Section 304-A of IPC. Now, the trial will be conducted against the applicant for the offence under Section 279, 304-A of IPC and Section 3/181 of Motor Vehicles Act, 1988. 18. Accordingly, this criminal revision is allowed in part. Aadil Sd/- (Ravindra Kumar Agrawal) Judge