GURCHARAN SINGH @ CHANAN SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS petition filed under Section 439 of the Code of Criminal Procedure, 1973 (for brevity, Cr.P.C.) seeks bail during trial in case FIR No. 345 dated 9.8.2003 registered under Sections 279/337/427/304-A IPC at Police State Assandh, District Karnal. The allegations in the FIR disclosed that on 9.8.2003 the complainant along with various other persons had gone to attend the Bhog ceremony of his aunt (Chachi) Pritam Kaur. After the Bhog ceremony, the complainant along with others were coming in Maruti car No. HR-06C-8682 from Deh to Karnal. Another car No. HR-038-9279 was also carrying certain other relatives of the complainant. At about 4.00 P.M. in the evening when they reached the Bus Stand Uplana, the offending Bus bearing No. HR-05-PA-0118 which was being driven by Chanan Singh petitioner son of Surain Singh was coming at a very high speed. The petitioner in a rash and negligent manner and without using the horn came from the wrong side and hit straight with car No. HR-03B-9279 from its back. As a result thereof, Swaran Singh son of Sardool Singh and Lakhbir Singh son of Bhagel Singh, Mahender Kaur wife of Lakhbir Singh, Veer Kaur wife of Lakhbir Singh suffered multiple injuries. Swaran Singh and Lakhbir Singh died on the spot whereas the others were sent to Government Hospital, Karnal by arranging a vehicle. It was further reported that driver of the bus Chanan Singh absconded. Chanan Singh driver was apprehended thereafter and he filed an application under Section 439 Cr.P.C. His application was dismissed by the Illaqa Magistrate on the ground that it was not a simple case of accident attracting Section 304-A IPC and bail could not be granted. According to the Magistrate, the allegations disclosed offence under Section 304 IPC. Thereafter, the petitioner filed an application before the learned Additional Sessions Judge, Karnal and the same has been dismissed on the ground that a Division Bench of this Court in Civil Writ Petition No. 11470 of 2000, titled as Court on its Own Motion v. State of Punjab and others decided on 23.11.2001 has held that in cases of extreme negligence and recklessness, the driver may be liable for the offences punishable under Sections 302 and 304 IPC. The view of the learned Additional Sessions Judge reads as under :-

(2.) MR . Sumeet Goel, learned counsel for the petitioner has argued that in such like cases, intention to kill cannot be inferred merely because the driver was driving the vehicle rashly and negligently. According to the learned counsel, in cases where there are allegations of motived killing, such an argument could be raised but in cases where there is no pre-determined mind motivated with the intention to kill, it may not be proper to impute the offences under Section 302 or 304 IPC. According to the learned counsel, the allegations levelled in the FIR do not disclose the commission of offence under Section 304 or 302 IPC. The learned counsel has further pointed out that this is not even the stage to go into this question because by investigation, it would be established whether charge under Section 304 or 302 IPC could be framed against the petitioner. In the absence of such a prima facie evidence, the offence under Section 304-A IPC at best could be imputed to the petitioner which is bailable and the same has been alleged in the FIR. The learned counsel has also placed reliance on the judgment of Bombay High Court in Salman Khan's case rendered in Criminal Writ Petition No. 2467 of 2003, decided on 3.9.2003 which has also been followed by this Court in Criminal Misc. No. 42159-M of 2003, decided on 18.9.2003. The learned counsel has also placed reliance on a Division Bench judgment of Lahore High Court in the case of Gurdev Singh Sardar Puran Singh v. Emperor, AIR 1941 Lahore 459.

(3.) AFTER hearing learned counsel for the parties, perusing the FIR and the order of learned Additional Sessions Judge as well as the Division Bench Judgment of this Court, I have reached the conclusion that this petition deserves to succeed and the petitioner is entitled to the benefit of bail. At this stage, it is not possible to conclusively determine as to whether an offence under Section 304 or 302 IPC is made out or it is offence under Section 304-C IPC alone. It is true that the Division Bench of this Court has held that it would be culpable homicide not amounting to murder without intention but with knowledge that the act of such a person may cause death or such bodily injuries which may result into his death. It has further been held that it would be the nature of the act that would determine the gravity and nature of the offence. The Division Bench has concluded with the following words :-