ASHRAF.C.K vs STATE OF KERALA

This petition is filed under section 439 of the Code of Criminal Procedure.

The petitioner herein is the accused in Crime No.2368 of 2017 of the City Traffic Police Station, Kozhikode, registered alleging offences

punishable under sections 304 and 308 of the IPC.

The prosecution case is that the petitioner herein while driving a tipper lorry bearing registration No.KL 11 Z 9494, drove his powerful vehicle

in a reckless manner along a busy public road with full knowledge that his act is likely to cause death and while doing so dashed on the back side

of a scooter. He drove the vehicle forward over the body of the pillion rider and then hit a cycle and a motor bike. The Bike was dragged on for

quite a distance. The rider and pillion rider of the Scooter, who were spouses, and the rider of the Motor Bike, suffered fatal injuries. They were

immediately removed to the Medical College Hospital. The husband and wife were pronounced dead on arrival and the person on the bike

succumbed to the injuries sustained by him later in the day.

The learned counsel appearing for the petitioner submitted that instant is a case of pure rashness and negligence and what would be attracted on

facts is only an offence under section 304A of the IPC. It is submitted that the petitioner was arrested on 17.12.2017 and having regard to the

period of detention undergone, he may be released on bail.

The learned Public Prosecutor has opposed the said prayer. It is submitted that the rash and negligent act was preceded with the knowledge

that such act was likely to cause death. It is submitted that the investigation is still in the early stages and prays for dismissal of the application.

I have considered the submissions advanced and have gone through the materials on record.

I am unable to accept the submission of the learned counsel that what is attracted in the instant case is only Section 304 A of the IPC which is

bailable. A person, responsible for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act

was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the

consequence and may be fastened with culpable homicide not amounting to murder and punishable under S.304 Part II IPC. (See Alister Antony

Pereira V State of Maharashtra [2012(2) SCC 648] )

Rash or negligent driving on a public road with the knowledge of the dangerous character and the likely effect of the act and resulting in death

may fall in the category of culpable homicide not amounting to murder as held in Alister ( supra). A person, doing an act of rash or negligent

driving, if aware of a risk that a particular consequence is likely to result and that result occurs, may be held guilty not only of the act but also of the

result. Those cases which fall within last clause of S.299 but not within clause ''fourthly'' of S.300 may cover the cases of rash or negligent act done

with the knowledge of the likelihood of its dangerous consequences and may entail punishment under S.304 Part II IPC.

The case diary shows that the investigation is in the early stages. Three persons have lost their life due to the acts of the petitioner. The

likelyhood of the witnesses being influenced and the evidence being tampered with cannot be ruled out .

Having regard to the nature and seriousness of the offence, the stage of investigation and the prejudice that would befall on the prosecution if the

petitioner is enlarged on bail, I am of the view that the petitioner is not entitled to be released on bail at this stage.

This petition will stand dismissed.