V.N.S. Prabhakar Roa vs State of Karnataka

K.N. Phaneendra, J.—The present petition is filed seeking quashing of the entire proceedings in Crime No. 159/2012 registered against the petitioner for the offences punishable under Sections 279, 338 and 283 of IPC and also under Section 181 of the Indian Motor Vehicles Act and after investigation, the said case culminated in C.C. No. 156/2013 pending on the file of the Additional Civil Judge (Jr.Dn.) and JMFC, Sindanur.

I have heard the arguments of the learned counsel for the petitioner and also the learned HCGP.

The brief factual matrix of the case emanate from the records are that, a person by name Subbarao, son of Suryanarayan lodged a complaint on 18.12.2012 before the Sub-Inspector of Police, Balaganoor Police Station, stating that on 18.12.2012 in the night hours at 1.00 ''O'' Clock, the complainant and one V.N.S. Prabhakar Rao @ Suribabu were proceeding on a motor cycle bearing Registration No. KA. 36.K. 6458 towards Nilgol Village. The said V.N.S. Prabhakar Rao was riding the motor cycle and the complainant was the pillion rider. When the motor cycle reached near Pothnal Bridge, opposite to Koranti Bio Energy Company, a lorry loaded with iron rods was parked in the center of the road and those iron rods were protruding outside the said lorry on its back side and the said lorry was parked in the middle of the road without there being any parking lights on. Therefore, the motor cycle went and dashed the said lorry from behind the lorry and the accident has taken place, and due to protruding of the iron rods loaded in the lorry out side from the back side of the parked lorry and as he came in contact with the said iron rods, the rider of the motor cycle namely V.N.S. Prabhakar Rao sustained severe injuries. However, the pillion rider was lucky, he did not sustain any injuries. Thereafter, the injured was shifted to the hospital. Subsequently, making allegations that the driver of the said lorry was negligent in parking the said lorry loaded with the iron-rods protruding outside from the backside of the lorry, in the middle of the road, without there being parking lights on, a complaint was lodged.

On the basis of the above complaint, the police registered a case in Crime No. 159/2012 and investigated the matter. During the course of investigation, the police have recorded the statement of one Mahaboob S. Bhasha and Veeresh, who were spot-panch witnesses and also examined Dr. Ramesh, who treated the injured and also the RTO officer, who inspected the vehicles. Except, these witnesses, it appears no other witness has been examined to speak anything about the negligence on the part of the rider of the motor cycle. However, after completion of investigation, the Investigating Officer laid charge sheet not only against the driver of the lorry, but also against the rider of the motor cycle making him as Accused No. 2.

On a plain reading of the charge sheet averments, statement of the witnesses, there is absolutely no material to show the negligence spoken about the rider of the motor cycle. It is on the basis of applying principle of res ipsa loquitur, the Investigating Officer himself has come to a conclusion that because of the lorry parked, the motor cycle rider came from the back side and dashed against it and he also might have contributed negligence in causing the accident. Therefore, he laid the charge sheet in such a manner.

On perusal of the above said circumstances, it is very much clear that when a complaint or first information report is lodged under Section 154 of Cr.P.C., even during the course of investigation, the Police Officer is empowered to arrest any person, who was suspected to have committed such an offence or who has also committed such offence along with the other accused can investigate and file a report to the Court. But, when the offences alleged against Accused No. 2 are independent to each other, that is to say, one countered the allegations of another with regard to the negligence is concerned, it is virtually like a case and counter case and both the persons cannot be arraigned as accused in one case. So far as Accused No. 2 in this case is concerned, he is a victim in the case and he has to speak about the incident as to how it has happened. Unfortunately, the Investigating Officer has not cited him as a witness. The Investigating Officer ought to have cited him as a witness so far as it relates to the allegations against the lorry driver is concerned, because, the victim is the rider of the motor cycle, so he is a best person to explain as to how actually the incident has happened and as to what precautions he has taken prior to occurrence of the incident and whether there was any negligence on his part and all these factual aspects have to be ascertained only after giving an opportunity to the victim to explain. But, in this case, in view of he being arraigned as Accused No. 2, there was no opportunity for him to complain against the lorry driver. Therefore, if at all, the Investigating Officer had come to the conclusion during the course of the investigation that other person has also committed an offence, then it is a counter allegation against the another accused person. The Investigating Officer should have filed a separate charge sheet against Accused Nos. 1 and 2 separately. But, the Investigating Officer in this particular case has not done so. As a definite allegation is made against the lorry driver in this case, the victim shall be treated as a witness and he cannot be arraigned as accused and if he is arraigned as accused, he cannot arraign as a witness to the prosecution. These legal discrepancies arise if both the accused are tried in the same case. Therefore, the Investigating Officer should have filed a split-up charge sheet or he should have filed a separate charge sheet against the lorry driver and this petitioner, if need arises.

So far as the contributory negligence as alleged is concerned, it is a well-recognized principle of criminal jurisprudence that contributory negligence cannot take any place so far as criminal prosecution is concerned. The contributory negligence only consists of absence of ordinary care which is ordinarily taken in peculiar circumstances of the case. What care that has been taken by Accused No. 2 before the occurrence of the accident should have been examined by the Investigating Officer by recording his statement and also what steps the driver of the lorry had taken before the occurrence of the incident, should have been ascertained by the Investigating Officer by examining the lorry driver. The contributory negligence apply only to the cases under tortious liability is concerned. The contributory negligence of the victim is in fact not a defence against the charge sheet filed under Section 279 of IPC or under Section 304-A of IPC. Accused will be liable even though he has been a joint contributor of negligence with the victim which would incapacitate the victim from filing a civil suit or claim compensation absolutely against the person who has committed accident. Therefore, the contributory negligence plays a dominant role so far as the cases where compensation claimed by the victim. If the above said principle is applied to the present case, the complaint lodged against the lorry driver, even though there is some contributory negligence might have been there on the part of the driver of the motor cycle, he cannot be made as an accused in the same case. At the most, the said plea of contributory negligence can be taken as a mitigating circumstance at the time of the trial so far as other accused is concerned or it can be taken as a ground for the purpose of apportioning the liability with regard to the compensation is concerned. Therefore, I am of the opinion that the Investigating Officer has committed serious error in laying common charge sheet against Accused Nos. 1 and 2 in this case, making the victim as one of the accused in the case.

In the above circumstances, the proceedings so far as Accused No. 2 concerned, is not maintainable and the same is liable to be quashed. However, it does not mean to say that the Investigating Officer is left with no remedy. He can file a separate charge sheet against Accused No. 2 herein specifically mentioning his role with regard to negligence committed by him, then it will not become the contributory negligence but, it becomes an independent negligent act, so far as the incident is concerned. Hence, with the above observations, the petition is liable to be allowed. Hence, the following order.

ORDER

With the above observations, the petition is allowed. Consequently, the charge sheet in C.C. No. 156/2013 filed by Balaganoor Police, Raichur District, and subsequent cognizance taken against Accused No. 2 (petitioner) and all further proceedings against Accused No. 2 (petitioner), are hereby quashed. However, liberty is given to the Investigating Officer that, if necessary, he can file a separate charge sheet against Accused No. 2 (petitioner) independently.