Utsav Bhasin vs State

Veena Birbal, J.—Present is a petition for grant of anticipatory bail filed by petitioner u/s 438 Cr.P.C in a case FIR No. 282/08 u/s 279/337/304-A/304 IPC registered at Police Station Lajpat Nagar, New Delhi.

The case of the prosecution is that on 11th September, 2008 at 2.40 AM (night intervening 10th /11th September, 2008), an information was received in the aforesaid Police Station about an accident having taken place at Lala Lajpat Rai Marg. DD No. 48A was recorded in this regard and copy of the same was handed over to ASI Satyavir Singh who went to spot and found that two vehicles i.e. Car (BMW make) bearing registration No. HR-26AK-0020 and Motorcycle (Pulsar make) bearing registration No. DL 4S AW 6977 were involved in an accident. No eye witness met ASI Satyabir Singh. There he came to know that two victims had been taken to Trauma Centre, AIIMS, New Delhi. He went there but both of the victims were declared ''unfit'' by the doctors for making statement. Initially FIR was registered u/s 279/337 IPC. Necessary formalities were done at the spot. After the death of victim Anuj on 13.9.2008, Section 304A IPC was added in the FIR. On 15.9.2008 statement of Mrigank Srivastava, the other victim, was recorded u/s 161 Cr.PC who was declared fit for making statement. Based on his statement and other evidence on record Section 304 IPC has been added in place of Section 304A IPC.

The petitioner approached the learned ASJ for grant of anticipatory bail which was rejected vide order dated 18.9.2008 on the ground that the petition for cancellation of bail, moved by the father of the deceased, is pending before the High Court.

Mr. Dinesh Mathur, learned Senior Counsel for the petitioner submitted that initially case was registered u/s 279/337 IPC and after the death of one of the victims, namely, Anuj, Section 304A IPC was added. Subsequently under the media pressure Section 304 IPC has been added to the FIR. It is contended that in any event Section 304 IPC is not made out in the present case. It is submitted that there is no damage on the front portion of the car involved in the accident and accident occurred due to rash/negligent driving of Mrigank Srivastava, the surviving victim of the case. It is he who has dashed his motorcycle into the car of the petitioner and thereby caused the accident and death of Anuj. It is further submitted that petitioner is only 19 years of age. He has already joined the investigations after he was granted bail u/s 279/337 IPC on 12.9.2008 and that no custodial interrogation is required as such he be granted anticipatory bail. Learned senior counsel referred to the judgment of Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab,

Mr. Naveen Sharma, learned APP has argued that earlier the case was registered for rash and negligent driving as no eye witness was available by then. In view of the statement, u/s 161 Cr.PC, of surviving victim Mrigank Srivastava, which was recorded on 15.9.2008, Section 304 IPC has been added. In the statement Mrigank Srivastava (victim) has stated that at the time of occurrence petitioner was driving the car in question with a great speed and had hit the same with his motorcycle as a result of which he fell down and shirt of deceased Anuj got entangled on the rear view mirror of the car. Despite that petitioner dragged Anuj to some distance without stopping the car knowing fully that it could cause fatal injuries/death. It is submitted that act was done with sufficient knowledge of causing death of the victim Anuj and due to that, Section 304 IPC has been added in the FIR. It is further submitted that petitioner fled away from the spot and the occurrence was at 2.30 a.m. midnight when there is hardly any traffic on the roads. It is further submitted that during investigation one lady''s sandal was also found in the car. Learned APP further submitted that custodial interrogation of the petitioner is required to know about the details of the girl who was sitting with him at the time of incident who might be a relevant witness in this case. It is further submitted that petitioner did not surrender as is alleged but was arrested from ISBT, Kashmiri Gate at about 7.30 AM on 12th September, 2008. Blood samples of the petitioner have been to CFSL for alcohol estimation. Finger prints of petitioner have been taken for comparison with chance prints found inside the car. Results of the same are awaited. TIP of the petitioner is also to be conducted. Learned APP has also drawn attention of the court to the photographs of the damaged car/motorcycle and postmortem report of the deceased AnuJ.

Learned APP further submitted that certain observations in the order of 18.9.2008 of learned ASJ on the merits of the case at such an early stage were not called for especially when the learned ASJ was of the opinion that it would not be appropriate for him to decide the anticipatory bail application.

I have considered the submissions made, perused the police file as well as other material on record.

The accident took place at 2.30 a.m. on 11.9.2008 (night intervening 10th/11th September, 2008). Initially FIR was registered u/s 279/337 IPC as no eye witness was available. One of the victims, namely, Anuj died on 13th September, 2008 at Trauma Centre of AIIMS and thereafter Section 304A IPC was added in the FIR. Statement of other victim Mrigank Srivastava was recorded on 15th September, 2008 on being declared fit for making statement. Based on his statement and other evidence Section 304 IP is added in place of Section 304A IPC.

I have gone through the statement of Mrigank Srivastava recorded u/s 161 Cr.PC wherein he has stated that on the date of incident, he along with his friend Anuj (deceased) were going to Nizamuddin after watching a movie at PVR Saket. They were on motorcycle (Pulsar make) bearing registration No. DL 4S AW 6977 and were wearing helmets. They were hit by a platinum coloured BMW car No. HR-26AK-0020 from behind when they crossed Moolchand Hospital and had reached at BRT starting point at Lal Lajpat Rai Marg. Due to the impact, he fell down on the road along with motorcycle whereas shirt of his deceased friend Anuj got entangled in the rear view mirror of the car. Despite that the person who was driving the car dragged Anuj (deceased) to a considerable distance without bothering that it could cause fatal injuries resulting in death.

The Supreme Court in the case of Adri Dharan Das v. State of West Bengal AIR 2005 SC 1057 has held that power exercisable u/s 438 Cr.PC is somewhat extraordinary in character and is to be exercised in exceptional circumstances. At this stage it would not be appropriate to make any observations on the merits of the case as it may prejudice the case of the either party. However, it would be difficult to accept the contention of the learned senior counsel for the petitioner that allegations don''t constitute an offence u/s 304 IPC at all. The statement of Mrigank Srivastava that the accused did not stop the car even after impact and continued dragging the victim leading to his death may be a relevant fact in deciding the applicability of relevant provisions of penal code including 304 IPC. The attention of this Court is also drawn to the statement u/s 161 Cr.PC of one Vijay Kumar, auto driver who is stated to have seen one boy and girl getting down from damaged BMW car immediately after the alleged occurrence in front of Petrol Pump, Defence Colony. Petitioner was arrested on his identification. There is prima facie evidence to show that the petitioner ran away from the spot and did not even take the victims to the hospital. Considering the totality of facts and circumstances of the case, present is not a fit case for grant of anticipatory bail. Petition is rejected.

At the request of counsel for the petitioner, it is clarified that the observations made hereinabove shall have no bearing on the merits of the case.