STATE OF HIMACHAL PRADESH Vs. RAHUL MALHOTRA

JUDGEMENT

(1.) Being aggrieved and dissatisfied with order dtd. 18/1/2023 passed by learned Sessions Judge, Mandi, District Mandi, Himachal Pradesh, in CIS Reg. No.40 of 2020, titled as State of Himachal Pradesh Vs. Rahul Malhotra, whereby respondent-accused (in short "accused"), came to be discharged for his having allegedly committed offence punishable under Sec. 304-AA of Indian Penal Code, petitioner-State has approached this Court in the instant proceedings, filed under Sec. 397 read with Sec. 401 of Cr.P.C, praying therein to set aside the afore order.

(2.) Precisely, the facts of the case, as emerge from the pleadings as well as other material adduced on record by the respective parties are that police presented challan in the competent Court of law against the accused for his having allegedly committed offences punishable under Ss. 279, 337, 338, 304-A and 304-AA of Indian Penal Code and Ss. 192 and 192- A of Motor Vehicle Act. Prosecution, in afore charge sheet, alleged that on 29/12/2019 at about 11:30 p.m., accused, who at the relevant time was driving a taxi bearing registration No.HP-02-5197 i.e. taxi, lost control of the vehicle, as a result thereof, same fell into the river. One occupant of the vehicle died on the spot and other occupants sustained injuries. During medical examination of the accused, who was driving the vehicle, it transpired that he was intoxicated. His blood and urine samples were sent for analysis. 72.62 mg% alcohol was found in his blood and 260.48mg% alcohol was found in his urine. In afore background, Sec. 304-AA of Indian Penal Code was added. Though court below, being prima facie satisfied that accused was driving the ill-fated vehicle rashly and negligently, proceeded to frame charge against him under Ss. 279, 337, 338, 304-A of Indian Penal Code, however, it discharged him under Sec. 304-AA of Indian Penal Code on the ground that mere intoxication may not be sufficient to invoke Sec. 304-AA of Indian Penal Code. In afore background, petitioner-State has approached this Court in the instant proceedings, praying therein to set aside the afore order, thereby discharging the accused under Sec. 304-AA of Indian Penal Code.

(3.) Mr. Rajan Kahol, learned Additional Advocate General for the petitioner-State, while making this Court peruse provision of Sec. 304- AA of Indian Penal Code, vehemently argued that to invoke aforesaid provision of law, it is sufficient for the prosecution to prove that at the time of alleged accident, driver of the ill-fated vehicle was intoxicated. He submitted that question with regard to accused being under the influence of liquor may not be relevant at the stage of framing of charge, rather the same can be determined by the Court below in totality of evidence led on record by the respective parties. He submitted that state of intoxication has not been defined anywhere in the Act, hence the same is required to be gathered from Sec. 185 MV Act, which clearly provides that whoever, while driving or attempting to drive a motor vehicle, (a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood as detected in a test by a breath analyser, or (b) is under this influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months or with fine which may extend to two thousand rupees, or with both and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both. Mr. Kahol, submitted that presumption of drunkenness is to be taken from the statute as provided under Sec. 185 MV Act, as such, the impugned order qua, the discharge of the accused for his having allegedly committed offence punishable under Sec. 304AA IPC, is liable to be set aside.