Sri Anand Mathew vs State Of Kerala

N. Nagaresh, J

The petitioner is seeking to set aside order dated 20.02.2023 in Crl.M.P. No.138/2022 in SC No.362/2022 of the Additional Assistant Sessions Court-II, Ernakulam in reference to Sections 324 and 269 IPC and discharge the petitioner in the said case under Sections 324 and 269 IPC as well.

The petitioner is the sole accused in Crime No.978/2021 of Ernakulam Town South Police Station. It is alleged that on account of the petitioner negligently dumping plastic cover which contained garbage at public place with the knowledge or belief that it is likely to spread infection of any disease dangerous to life, was foiled by the intervention of CW1. On 19.08.2021, while CW1 was riding back home after the incident, in his scooter bearing registration No.KL-07BH-290, the petitioner, due to spite, drove his car bearing registration No.KL-07CM-7889 chased and hit behind the scooter driven by him. As a result, CW1 was thrown on the road and sustained injury to his right leg. The prosecution alleged that the accused did the act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder. Thus, the petitioner committed offence under Sections 269, 324 and 308 IPC.

The petitioner, after entering appearance in the case, filed a petition for discharge. The petitioner contended that the ingredients of offences under Sections 269, 324 and 308 IPC are not made out and he is entitled to discharge. The Additional Assistant Sessions Court considered the arguments elaborately and allowed the discharge application partly. The court held that the petitioner is entitled for a discharge of the offence under Section 308 IPC. The court held that the petitioner cannot be discharged for offences under Sections 269 and 324 IPC. The Additional Assistant Sessions Judge therefore transmitted the case records to the Additional Chief Judicial Magistrate (EO), Ernakulam. It is the afore order dated 20.02.2023 of the Additional Assistant Sessions Judge-II which is under challenge in this Crl.R.P.

The counsel for the petitioner submitted that the petitioner ought to have been discharged of the offences under Sections 269 and 324 IPC also. In order to attract the offence under Section 324, there is nothing to show that the injury was caused by the car driven by the petitioner. Apart from the statement of CW1, there is nothing to corroborate the allegation that hurt was caused to CW1 by the petitioner using the car. There is no marks noted on the car. There is no expert report from Motor Vehicle Department to show collision with the scooter of CW1. Even the seizure mahazar would not disclose anything in this regard. A charge under Section 324 IPC therefore cannot be sustained.

The counsel for the petitioner further submitted that there has been no recovery of the alleged waste which was dumped by the petitioner. Therefore, there is nothing to show that the alleged bag contained any substance which would spread infection of any disease dangerous to life. When there is no material to show that the plastic bag contained such harmful substance, an offence under Section 269 IPC cannot be attracted. The refusal of the court below to discharge the petitioner from the offence under Section 269 is therefore illegal and unsustainable.

The Public Prosecutor resisted the revision petition. The Public Prosecutor submitted that there are prima facie materials warranting prosecution against the petitioner under Sections 269 and 324 IPC. The want of report of the Motor Vehicles Department cannot be a reason for the petitioner to seek discharge at this stage. The definite case of the prosecution is that due to the intervention of CW1, the accused could not dump the waste and it was taken back in his car. Therefore, offence under Section 269 IPC is sustainable. The revision petition is only to be dismissed.

I have heard the learned counsel for the petitioner and the learned Public Prosecutor representing the respondent.

This is a case in which CW1 has given statement that on CW1 foiling the attempt of the petitioner to dump plastic cover containing garbage at public road, the petitioner, due to spite, drove his car, chased him and hit behind the scooter driven by him. CW1 was thrown on the road and has sustained injury to his right leg.

The contention of the petitioner is that ingredients of the offences are not made out. The wound certificate of CW1 shows that CW1 has injuries of mild tenderness / swelling on right leg, though no fracture was detected. The triviality of the injury or even lack of injury is not a ground to render the charge unsustainable. The argument of the petitioner that in the absence of a report from the Motor Vehicles Department, charge cannot be sustained, is unacceptable.

As regards Section 269 IPC, the case of the prosecution is that due to the intervention of CW1, the petitioner could not dump the waste and it was taken back by the petitioner himself. Therefore, it is not possible to pick out the waste alleged to have been carried by the petitioner in the cover.

It is settled proposition of law that at the time of considering an application for discharge, the court is not expected to conduct a mini trial or to decide on the probative value of evidence available. If the materials disclosed possibility of the offences having been committed, the court cannot grant discharge. Whether an accused can be punished on the basis of the available materials is not something which can be looked into by the court at the time of considering a discharge application. The materials available in this case would disclose prima facie facts constituting offence under Section 269 and 324 IPC. The court below therefore rightly passed the order dated 20.02.2023 in Crl.M.P. No.138/2022 in SC No.362/2022.

The Crl.R.P. therefore fails and it is dismissed.