IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 Crl.MC.No. 2961 of 2009 --------------------------------------- CRIME NO.411/2006 of KUZHALMANNAM POLICE STATION CC.189/2007 of JFCM-I, PALAKKAD ............. PETITIONER/ACCUSED: SUDHAKARAN, S/O.SATHYADEVAN PILLAI, LAKSHMI BHAVAN, NEDIYARA P.O., ANCHAL, KOLLAM. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH RESPONDENTS: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2961 of 2009 -------------------------- ORDER Petitioner was tried by Judicial First Class Magistrate-I, Palakkad in C.C.No.189/2007 for the offences under Sections 279, 337 and 338 of Indian Penal Code. Prosecution case was that on 16.11.2006 at about 10.30 p.m., petitioner drove tourist bus KL- 25/369 in a rash and negligent manner so as to endanger human live through Thrissur-Palakkad National Highway and when reached at Kuppukad in Kuzhalmannam Panchayat, the bus hit against motor cycle KL-9/K 5294, driven by Sajithchandran and caused grievous hurt to his head and right thigh and petitioner thereby committed the offences under Sections 279, 337 and 338 of Indian Penal Code. 2. As is clear from Annexure-I judgment, when particulars of the offences were read over and explained to the petitioner, he pleaded guilty and recording that pleading guilty was voluntary and with the knowledge of the consequences, learned Magistrate convicted him for the offences under Sections 279, 337 CRMC 2961/09 2 and 338 of Indian Penal Code and sentenced to imprisonment till rising of court and a compensation of Rs.3,500/- to the injured under Section 357(3) of Code of Criminal Procedure. 3. The injured was, in fact, originally discharged from the hospital on 31.3.2007. Annexure-I conviction was on 11.10.2007. Later, the injuries got aggravated and he was again admitted in the hospital and died from the hospital on 14.12.2007. Police, thereafter, laid Annexure-III final report for the offences under Sections 279 and 304A of Indian Penal Code, which was taken cognizance by the learned Magistrate. According to the prosecution, the injured Sajithchandran died consequent to the injuries sustained in the accident and therefore, petitioner also committed the offence under Section 304A of Indian Penal Code. This petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings, taken cognizance under Annexure-III final report, contending that in view of Section 300 of Code of Criminal Procedure, petitioner cannot be prosecuted again for the offences in respect of the same incident. It is contended that petitioner had pleaded guilty, as the offences were CRMC 2961/09 3 only under Sections 279, 337 and 338 of Indian Penal Code and if he is to be prosecuted for the offence under Section 304A of Indian Penal Code, it will prejudice the petitioner, as he had already pleaded guilty. 4. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 5. Learned counsel appearing for the petitioner pointed out that the substantive sentence provided for the offences under Sections 338 and 304A of Indian Penal Code is the same and the only difference is that of fine and the fine for the offence under Section 304A is not limited as in the case of Section 338 of Indian Penal Code and when petitioner was tried and on his pleading guilty, he was already convicted and sentenced, he cannot be prosecuted for the offence under Section 304A of Indian Penal Code in respect of the same incident and that too on the same allegations. Learned counsel further submitted that even if it is found that prosecution for the offence under Section 304A of Indian Penal Code is maintainable, irrespective of pleading guilty earlier, petitioner is to be permitted to defend the case, raising all the available CRMC 2961/09 4 contentions. 6. Learned Public Prosecutor pointed out that under Section 300 of Code of Criminal Procedure, second prosecution is barred, only if petitioner was tried and convicted or acquitted for the offence or could have been tried and convicted or acquitted for another offence, though charge is not framed and when the injured was alive on the date when learned Magistrate has taken cognizance and petitioner pleaded guilty and he was convicted and sentenced, he could not have been prosecuted for the offence under Section 304A of Indian Penal Code and therefore, the bar provided under Section 300 of Code of Criminal Procedure is not applicable. It is also submitted that sub-section (3) of Section 300 of Code of Criminal Procedure makes the position clear and in such circumstances, petition is only to be dismissed. 7. Section 300 of Code of Criminal Procedure provides bar for a subsequent trial, when a person was either convicted or acquitted for the same offence earlier. Under sub-section (1) of Section 300, a person, who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted CRMC 2961/09 5 of such offence, shall not be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221 or for which he might have been convicted under sub-section (2) of Section 221, while such conviction or acquittal remains in force. 8. It cannot be disputed that petitioner could not have been tried for the offence under Section 304A of Indian Penal Code, when he pleaded guilty or was convicted. Neither sub-section (1) of Section 221 nor sub-section (2) of Section 221, applies to the facts of this case. Admittedly, petitioner was not tried, much less convicted or acquitted for the offence under Section 304A of Indian Penal Code and therefore, the bar provided under sub-section (1) of Section 300 of Code of Criminal Procedure is not applicable to the facts of this case. Position is absolutely clear from sub-section (3) of Section 300 of Code of Criminal Procedure. It reads: “A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different CRMC 2961/09 6 offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the court to have happened, at the time when he was convicted.” 9. I find that there is force in the submissions of the learned counsel appearing for the petitioner that petitioner will be prejudiced by the plea of guilty made at a time when he was not charged for the offence under Section 304A of Indian Penal Code, when, on the same facts, except the fact that the injured did not die at that time, he pleaded guilty. In the facts and circumstances of the case, interest of justice warrants that when petitioner is being tried for a grievous offence, he shall not be prejudiced by the pleading guilty when he was tried only for the offences under Sections 279, 337 and 338 of Indian Penal Code. True, as petitioner was already tried and convicted for the offence under Section 279 of Indian Penal Code, in view of sub-section (1) of Section 300 of Code of Criminal procedure, he cannot be tried again for that offence. But, he could, definitely, be tried for the offence under Section 304A of Indian Penal Code. As CRMC 2961/09 7 petitioner was persuaded to plead guilty at a time when he was charged only for the offences under Sections 279, 337 and 338 of Indian Penal Code, in the interest of justice, irrespective of pleading guilty, petitioner is to be permitted to plead not guilty of the offence under Section 304A of Indian Penal Code and raise all the available contentions before the Magistrate. To avoid any technical difficulty and to secure justice, exercising the extraordinary powers under Section 482 of Code of Criminal Procedure, it is necessary to quash the conviction based on pleading guilty for the offences under Sections 279, 337 and 338 of Indian Penal Code and I do so. It is made clear that learned Magistrate is to try the petitioner for all the offences and has to frame charge for all the offences and record the plea and thereafter proceed with the evidence. Petition is disposed. 30th September, 2009 (M.Sasidharan Nambiar, Judge) tkv