Anil Baran Bey vs The State

Debabrata Mookerjee, J.—This is a petition for quashing an order of commitment made by Sri J.N. Sarkar, Magistrate, first class, Howrah, on May 6, 1955, by which the Petitioner was directed to be tried by the court of Sessions u/s 304 of the Indian Penal Code.

The case made by the prosecution was that on March 3, 1955, the Petitioner drove a bus No. W.B.V. 10 in a rash and negligent manner with the result that he caused the death of a boy Arjun Chakravarty by name. The case is that the boy was riding a cycle and he proceeded along the left side of the road when the bus which was being driven by the Petitioner came up and dashed against it from behind with the result that the unfortunate boy was drawn off the cycle and fell between the front and the rear wheels of the bus and was smashed to death. The Petitioner failed to stop the bus until he went ahead about 5 or 6 cubits with the result that the boy was completely run over by the bus. Before the bus struck against the cycle, the Petitioner did not sound the horn. There was a constable on duty at the traffic post close to the place of occurrence and his evidence seems to be that the part of the road where the incident took place was quite straight and was wide enough to allow of two vehicles running side by side. Just at the time of the occurrence there was no vehicle on the road near about. Another constable was deputed to the police-station where an information was lodged. The dead body was taken charge of along with the cycle; the Petitioner was arrested and as a result of the investigation which followed, a charge-sheet was submitted u/s 304A of the Indian Penal Code.

The case was made over to the file of the learned Magistrate Sri J.N. Sarkar on March 18, 1965, and the learned Magistrate fixed April 7, 1955, for the hearing of the case. On the last mentioned date a prayer was made on behalf of the Court Inspector who was in charge of the conduct of the case that the procedure preliminary to commitment as prescribed in Chapter XVIII of the Code might be followed in the present case inasmuch as it was contended that the facts made out a charge u/s 304 of the Indian Penal Code and as such triable exclusively by the Court of Session. This prayer made by the Court Inspector was allowed and the learned Magistrate treated the case as one u/s 304 of the Indian Penal Code and followed accordingly the procedure prescribed for an inquiry preliminary to commitment.

Apart from the propriety of adopting such a course the learned Magistrate does not appear to have followed with care even the procedure of an enquiry under Chapter XVIII of the Code. He does not seem to have observed the provisions of the law laid down in Sections 211 and 212 of the Code; and directly a charge u/s 304 of the Indian Penal Code was framed, the Magistrate brought the proceedings to a close clearly overlooking the provisions of Sections 211 and 212 of the Code. Even if this commitment was otherwise a proper one, I should have felt constrained to set aside the order made by the Magistrate on the ground of his failure to observe the mandatory provisions laid down in Sections 211 and 212 of the Code. It is, however, not necessary to do so in view of the more fundamental objection to which the present proceedings are exposed and consequently liable to be set aside for reasons which I am presently to mention.

The case made by the prosecution was clearly one u/s 304A of the Indian Penal Code. The evidence that has been adduced is quite unmistakable. It is a case of rash and negligent driving that the prosecution wanted to establish. Witnesses were examined with a view to proving that the Petitioner was negligent and rash to a degree in driving the bus which ran over the boy. Assuming for one moment that all this evidence is accepted, I do not think a case u/s 304 of the Indian Penal Code is made out.

In order that an offence of culpable homicide may be said to have been committed death must be caused by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death. In the present case there is no question of the Petitioner having the intention of causing death or even the intention of causing such bodily injury as is likely to cause death. The only question that might perhaps be said to be somewhat remotely connected with the present allegations is whether in the circumstances alleged, the Petitioner could be said to have done the act with the knowledge that he was likely by such act to cause death. Driving a motor bus along a public road which is quite usable and in condition, cannot be said to be an act done by the person with the knowledge that by such act of driving he was likely to cause death. Evidence has been led to show that the Petitioner had not been authorised to drive the bus on the occasion but that is a matter wholly irrelevant to the present consideration. There is clear evidence to indicate that the Petitioner had a license to drive a bus and he was driving the bus in question although he might not have been authorised by the owner to drive it. Question, therefore, arises whether in those circumstances it could be said with any show of reason that the act of driving done by the Petitioner was an act done with the knowledge that he was likely by it to commit the offence of culpable homicide. Illustration (c) to Section 299 of the Code is instructive, which runs as follows:

A, by shooting at a fowl with intent to kill and steal it, kills B, who is behind a bush, A not knowing that he was there. Here, although A was doing an unlawful act he was not guilty of culpable homicide, as he did not intend to kill B or cause death by doing an act that he knew was likely to cause death.

It is, therefore clear that unless and until the intention to cause death or the intention of causing such bodily injury as is likely to cause death is established or circumstances are proved which will make it appear that the person doing the act did it with the knowledge that he was likely to cause death, no charge can possibly be laid for culpable homicide. As I have already indicated the evidence in the case does not and cannot make out that the Petitioner drove the bus with the knowledge that he was likely by such act of driving to cause the death of the unfortunate boy. The learned Magistrate completely misdirected himself in thinking that the allegations made out a charge u/s 304, Indian Penal Code, which is exclusively triable by the Court of Session.

Turning for a moment to the elements of Section 304A of the Indian Penal Code, it appears clear that the ingredients of this section merely require proof of death and the doing of any rash or negligent act which does not amount to culpable homicide. If these elements are satisfied, an offence u/s 304A is proved. It is to be seen whether in the circumstances of the present case the negligent act or the rash act alleged does or does not amount to an offence of culpable homicide. It cannot be said that the mere act of rash or negligent driving of a bus with its mechanism tolerably in order, on a road in condition, by a person licensed to drive such vehicles, will make the act an act of culpable homicide. Section 304A is couched in words which are wide indeed. It is possible to imagine a case where a rash act or a negligent act will amount to an act of culpable homicide. If, for instance, a vehicle which is proved definitely to be not road worthy is driven by a person who has never sat at the steering wheel, along a crowded road, the act of such driving besides being rash may amount to an act of culpable homicide if death occurred to a pedestrian. It is possible to say in such circumstance that such a person driving such a bus along such a road will be guilty of rash and negligent act amounting to culpable homicide.

It is quite clear that in the present case the prosecution was at no time in two minds as respects the allegations they wanted to make against the Petitioner. Those allegations briefly are that the Petitioner drove a bus along the road in a manner which was merely rash and negligent. The bus itself was on examination found not to exhibit any serious mechanical defect. The Petitioner himself was found to have a license. The road was in good condition but the horn was not sounded and the bus was driven in such a rash or negligent manner as to have struck against the cycle which the unfortunate boy was riding. These allegations, if proved, will certainly make out a charge u/s 304A of the Indian Penal Code. They cannot possibly support a charge u/s 304 of the Indian Penal Code.

True, Section 304A is also triable by the Court of Session. If in the present case the learned Magistrate proceeded on the basis that although the evidence made out a charge u/s 304A of the Indian Penal Code, nevertheless the circumstances of the case established such enormity as would require trial of the charge by the Court of Session, the position might have been different. In such event it would have been for this Court to consider whether it should in the exercise of its powers of revision interfere with the commitment made by the Magistrate upon a change u/s 304A of the Indian Penal Code. I have no doubt whatever that this was not the case. It was not intended that a charge u/s 304A should be tried by a Judge and Jury. The order of commitment expressly states that the offence made out is one u/s 304, Indian Penal Code, and the procedure of a committal proceeding was adopted at the instance of the Court Inspector who was in charge of the conduct of the prosecution. There can be no doubt that this charge u/s 304 is not sustainable and I do not think that the prosecution even desired or has succeeded in establishing circumstances which would render trial of the Petitioner before a Court of Session upon a charge u/s 304A of the Indian Penal Code expedient.

It is to be observed there is no answer to the present Rule and the State has not entered appearance presumably in the view that the offence alleged is really one u/s 304A and not u/s 304 of the Indian Penal Code.

The result, therefore, is that this Rule is made absolute. The order of the learned Magistrate, dated May 6, 1955, committing the Petitioner to the court of Session to take his trial there u/s 304 of the Indian Penal Code is set aside. The learned Magistrate is directed to proceed with the trial in accordance with law under the provisions of Chapter XXI of the Code of Criminal Procedure upon framing appropriate charge or charges against the Petitioner.