IN THE HIGHCOURT OF PUNJB AND HARYANA AT CHANDIGARH Criminal Revision No. 352 of 2008 Date of Decision: May 26 , 2008 Satnam Singh ......Petitioner Vs. State of Punjab .....Respondent CORAM : HON'BLE MR. JUSTICE RAJESH BINDAL Present: Ms.Satpreet G. Kapila, Advocate for the petitioner. Mr.J.S.Bhullar, AAG, Punjab. *** Rajesh Bindal, J. The challenge in the present petition is to be order dated 22.11.2007 passed by the learned Additional Sessions Judge, Hoshiarpur framing charge against the petitioner under Section 304 IPC with alternative charge under Section 304-A IPC. Learned counsel for the petitioner submitted that it is a case where death of a person was caused in a road accident and the conduct of the petitioner not being deliberate the charge under Section 304-A IPC was required to be framed and not under Section 304 IPC. Reliance is placed on a judgment of Hon'ble the Supreme Court in 2007 (4) RCR Criminal Revision No. 352 of 2008 -2- (Criminal) 1038 Naresh Giri V. State of M.P. The submission is that if the charge is framed under Section 304-A IPC, the same is triable by a Magistrate and the petitioner will have a right of appeal before the learned Sessions Judge and in case the charge is framed against the petitioner under Section 304 IPC, the same is triable by the Sessions Court and accordingly the petitioner will be prejudiced. Learned counsel for the State submitted that the learned Court below has rightly appreciated the facts of the case at the time of framing of charge and relying upon a Division Bench of this Court in 2005 (4) RCR (Criminal) 673, Court of its own motion V. State of Punjab and others has framed the charge under Section 304 IPC and in the alternative under Section 304-A IPC. The submission is that in case during trial it is found that the charge under Section 304 IPC is not made out against the petitioner, he will be acquitted of that charge and conviction will follow under Section 304-A IPC. The petitioner is not going to be caused any prejudice as in any case he has one right of appeal which is available in either case. Heard counsel for parties and perused the material on record. In my considered opinion, the submissions made by learned counsel for the petitioner are not meritorious. In the present case the Court has framed charge against the petitioner under Section 304 IPC and in the alternative under section 304-A IPC, prima facie finding that the offence under Section 304 IPC is made out keeping in view the statement of the complainant in the FIR where it was stated that the petitioner was driving Criminal Revision No. 352 of 2008 -3- the Tipper in a rash and negligent manner and hit the motor cycle of the deceased from his driver's side. Accordingly the same cannot be said to be a mere accident. In the case before Hon'ble the Supreme Court, the facts were different where the accident occurred at unmanned level crossing on account of failure of judgment by the driver of the vehicle therein who had in fact, crossed the railway line but the train hit the rear side of the bus. In those circumstances it could not be opined that it was a deliberate attempt specially in case the bus had been hit by the train the same could be fatal for the driver as well. The facts in the present case are different. Keeping in view the Division Bench judgment of this Court, as referred to above, the charge under Section 304 IPC has rightly been framed by the Court and in the alternative under Section 304-A IPC. Mere framing of charge against the petitioner does not mean that he has been convicted. Final determination will depend on the evidence which is brought on record by the parties. Even the contention of learned counsel for the petitioner to the effect that he will suffer prejudice on account of right of appeal is also misconceived for the reason that in either case the petitioner will have one remedy of appeal. If the trial is by the Magistrate the remedy is before the Sessions Court and if the trial is by the Sessions Court, the remedy of appeal is available before this Court. Accordingly, even on this ground the case set up by the petitioner is found to be meritless. For the reasons stated above, I do not find any merit in the present petition and the same is accordingly dismissed. However, it is made clear that nothing said above shall be considered as an expression of opinion on merits of the case. The same shall be considered by the Court Criminal Revision No. 352 of 2008 -4- below on the basis of the evidence to be led by the parties. (RAJESH BINDAL) JUDGE May 26, 2008 sunita