1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Criminal Revision Petition NO. 101/2009 Chandra Pal Singh Choudhary vs. Vijit Singh & Anr. WITH S.B. Criminal Revision Petition No. 121/2009 The State of Rajasthan vs. Vijit Singh Date of order : 03.03.2009 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mrs. Sonia Shandilya, for the petitioner, in Petition No. 101/09 Mr. N.A. Naqvi, Addl. Advocate General, for State, in petition No. 121/09 Mr. S.R. Bajwa with Mr. V.R. Bajwa, for the respondent. BY THE COURT: Since, both the aforesaid criminal petitions arise out and pertain to order dated 9 January, 2009 rendered by the learned Sessions Judge, Jaipur City, Jaipur, whereby, petitions filed by the revisionists under Section 439 (2) of Cr.P.C. were dismissed, they are being disposed of by this common order. 2. The facts necessary for the disposal of these revision petitions succinctly stated are:- That on 14 December, 2008, the students of Institute of Business and Bio- Science, Kota, came on tour and after visiting Behrod arrived at Jaipur on 15 December, 2008. Having parked the Bus way side of the road near Gandhi Nagar crossing, when the students at 10:45 p.m. were in process of crossing the road through Zebra lines to reach at restaurant situated on Tonk Road, one car of black colour, came at a fast speed rashly and negligently and caused 2 violent hit and run accident rsulting in the death of Kr. Babita Choudhary and injuries to Kumari Gauri, Kumari Maninder Kaur, Kumari Shaifali and Mukesh. The number of VOLKSWAGEN Car was RJ-14 CF 5975. The injured girls were taken to S.M.S. Hospital in Ambulance where Kumari Babita was declared dead by the Doctors. The S.H.O. police station Accident, (East), sent the report of this accident to police station Gandhi Nagar where FIR No. 580/08 came to be registered in the offences under Section s 279, 337 and 304-A of IPC and the investigation commenced. 3. It is also, alleged that having received the information of the accident, both S.H.O. police station Accident (East) and S.H.O. police station, Gandhi Nagar chased the vehicle which had caused this accident. The S.H.O. intercepted the vehicle NO. RJ 14 CF 5975 and the driver of the vehicle Vijit Singh S/o. Prithvi Singh was taken into custody and produced for medical examination before the Medical Jurist, S.M.S. Hospital, Jaipur as he was found drunk. The samples of blood and urine were taken by the Medical Jurist and duly sent for chemical examination to FSL, Jaipur. Thereafter, at 5.00 a.m., the accused respondent Vijit Singh was released on bail by the Investigating Officer on account of all the offences under Sections 279, 337 and 304-A of IPC being bailable. 4. During investigation, the Investigating Officer recorded the statements of the witnesses acquainted with the facts and circumstances of the case under Section 161 of Cr.P.C., collected the relevant material and the FSL report pertaining to the blood and urine samples of the respondent. The FSL report gave a positive test to 92.00mg/100ml quantity of Ethyl Alcohol in 3 the blood samples and 126.50mg/100ml quantity of Ethyl Alcohol in the urine of accused Vijit Singh. After receiving the FSL report with regard to urine and blood samples of the respondent, and recording the statements of the witnesses, the Investigating Officer found that the offence under Section 304 of IPC was established instead of Section 304-A of IPC and thereafter he aprised the senior police officers with this development. The Investigating Officer finally formed an opinion that the offences under Section 279, 337, 338 and 304 of IPC and Section 134/187, 185 of Motor Vehicle Act were fully established against the respondent Vijit Singh. 5. Since the offences under Sections 279, 337 and 304-A of IPC and Section 134/187 of Motor Vehicle Act were bailable. The Investigating Officer released the respondent Vijit Singh on bail on furnishing bail bonds on 16 December, 2008 itself. The offence under Section 304 of IPC being of grave nature and non-bailable, the revisionists applied for cancellation of bail under Section 439(2) of Cr.P.C. before the learned Sessions Judge, Jaipur City, Jaipur, who dismissed the same on 9 January, 2009. The revisionist felt aggrieved with this impugned orders and hence these revisions. 6. Heard learned counsel for the revisionist as also the learned A.A.G. for the State, and scanned the relevant material available on record. 7. Learned counsel for the revisionist have craved the cancellation of bail on the following grounds:- (i)That at the initial stage, the respondent Vijit Singh was released on bail on the ground that the offences 4 under Sections 279, 337 and 304-A of IPC are bailable. Later on having collected the material evidence during investigation, it was revealed that the offence under Section 304 of IPC was made out which were graver in nature and non-bailable; (ii)That the bail granted by the police is subjected to be cancelled if later on a graver and non-bailable offence is disclosed; (iii)That the accused respondent after committing the accident fled from the spot. When he was chased and tried to be intercepted, he again hit the vehicle and fled, which clearly indicates that the accused committed offence under Section 304 of IPC and not under Section 304-A of IPC; (iv)That if a person drives a vehicle under the influence of alcohol and subsequently causes hit and run accident, it can safely be gathered that he had a knowledge that from his act the death of a person could be caused. Therefore, such act of the accused is punishable under Section 304 of IPC; (v)That, thereafter on being chased by an eye-witness Abhimanyu Swami, who tried to stop the accused but the accused- respondent having the knowledge and being aware of his illegal act, hit Abhimanyu Swami as well and fled from there. His post accident conduct of the respondent clearly establishes that the respondent was able to see in the sufficient light available at the crossing that a group of 60 students 5 was moving at the Zebra crossing to cross the road and having knowledge that his act of hitting these students could cause the death of anyone, did not stop the car and on the contrary hit the students and fled from there. He made no efforts to stop the car and thus, his act is punishable under Section 304 of IPC; 8. At the very outset, the learned counsel for the respondent Vijit Singh assailed the maintainability of these revision petitions on the ground that the impugned order dated 9 January, 2009 passed by the learned Sessions Judge, Jaipur City, Jaipur is an interlocutory order and a revision against such interlocutory order is barred under Sub-section 2 of Section 397 of Cr.P.C. He has further canvassed that the order summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of pending proceedings are the interlocutory orders against which no revision would lie under Section 397 (2) of Cr.P.C. 9. In support of this argument, he relied upon AIR 1977 Cr.L.J. 1891; 1977 Cr.L.J. 471; 1983 Cr.L.J. 1590; 1988 Cr.L.J. 1434; 1994(2) Crimes 449; 1995 Cr.L.J. 556; 1995 Cr.L.J. 2523; 1999 (4) Crimes 461 and 1999 Cr.L.J. 3806. 10. Except in the case of Mahesh Mehto and others vs. Shri Shankar Kumar Mehto (1999)(4) Crimes 461, in all other cases, it has been held: “that grant or refusal of bail constitutes an interlocutory order and no revision lies against such order under Section 397(2) of Cr.P.C.” (Emphasis supplied) 11. In the case of Thakur V. Hariprasad, vs. State of A.P. 1977 Cr.L.J. 471 6 and in the case of Mahesh Mehto and others vs. Shri Shankar Kumar Mehto, it has been held that the order of canceling the bail also was an interlocutory order and prima facie therefore, a revisional application under Section 397 would not be maintainable. The learned counsel for the respondent has basically relied upon the judgment of Amarnath and others vs. State of Haryana and others 1977 Cr.L.J. 1891 wherein, it is observed that: “Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2). But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisinal jurisdiction of the High Court.” (Emphasis supplied) 12. In the case of Amarnath & others, it is not held that the order of canceling the bail is an interlocutory order. Thus, an order with regard to cancellation of bail cannot be said to be an interlocutory order in view of this judgment of Hon'ble Apex Court. 13. A bird's eye view of some of the decisions of Hon'ble Apex Court throwing light on this issue needs to be taken. 14. A three Judge Bench of Hon'ble Apex Court in Madhu Limaye vs. State of Maharashtra, AIR 1978 SC 47 laid down the following test:- “All order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2)” (Emphasis supplied) 7 15. The above position was reiterated in the case of Rajasthan Kumar Sitaram Pande & ors. vs. Uttam and Anr. Again in the case of K.K. Patel and anr. vs. State of Gujarat and Anr., Hon'ble Apex Court stated thus: “It is well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 387 (2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v. State of Haryana, Madhu Limaye v. State of Maharashtra, V.C. Shukla v. State through CBI and Rejendra Kumar Sitaram pande v. Uttam). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed of such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objections raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable.” (Emphasis supplied) 16. In the case of M/s. Bhaskar Industries Ltd. vs. M/s. Bhiwani Denim and Apparels Ltd. And ors. 2001 Cr.L.J. SC 851, the Hon'ble Apex Court has held:- “The interdict contained in Section 397 (2) of the Code of Criminal Procedure (for short 'the Code') is that the powers of revision shall not be exercised in relation to any interlocutory order. Whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at the interlocutory stage. The safe test laid down by this Court through a series of decisions is this: if the contention of the petitioner who moves the superior court in revision, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate? If it would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage.” (Emphasis supplied) 17. An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of 8 the rights of the parties. Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is that in ordinary sense of the term, an interlocutory is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding. 18. Now, it is tangible from the aforesaid judgments pronounced by the Hon'ble Apex Court from time to time that if a criminal proceeding as a whole culminates or concludes albeit, at an interlocutory stage, shall not fall in the category of an interlocutory order. In the instant case, a petition with regard to cancellation of bail was finally decided by the learned Sessions Judge and the same was dismissed. This order of the learned Sessions Judge with regard to the prayer of canceling bail, already granted by the police to the respondent, is a final order as the proceedings in this matter as a whole culminated. It is certainly not an interlocutory order and to end, in my opinion, revision lies under Section 397 (2) of Cr.P.C. against the impugned order. The contention of the learned counsel for the respondent is found to be devoid of force and objection raised by him at the initial stage deserves to be jettisoned. 19. Now adverting to the issue of canceling the bail already granted by Investigating Officer to the accused respondent, the learned counsel for the revisionist canvassed that bail granted by the Police for the offences under Sections 279, 379 and 304-A of IPC (Bailable offences) will not enure to the benefit of the accused respondent after the conversion of the offence to Section 304 of IPC. The learned Additional Advocate General Mr. N.A. Naqvi has contended that the accused respondent noticing a group of 60 students crossing Zebra line on a fully lit road drove the vehicle at a fast speed knowingly that his act could cause the death of 9 any person and thus hit the students causing the death of Kumari Babita Choudhary and further causing simple and grievous injuries to Kumari Gouri, Kumari Munindra, Kumari Shefali and Mukesh. The act of the respondent was not only immensely dangerous but cruel and callus also and this act constitutes an offence under Section 304 of IPC. The respondent is an influential person and thus, there are every chances and likelihood that he would tamper with the evidence. Hence, in the interest of justice and for fair investigation, the bail so granted by the Police to the respondent deserves to be cancelled. In support of his argument, the learned counsel has cited the following cases:- 1. Sanjiv Nanda Vs. State (1999 I AD (Cr.) Del.650) 2 Chiman Singh and Ors. Vs. State of Raj. (RCC Sept., 1997, 507). 3. Deepak Kumar Goyal VS. State of Raj. (1995 Cr.L.R.(Raj.) 557). 4. Sharda(Smt.) Vs. State of Raj. (2001, Cr.L.R.(Raj.),129). 5. Utsav Bhasin Vs. State (MANU/DE/1414/2008). 20. Per contra, the learned counsel for the respondent has argued that the facts of the case do not constitute an offence under Section 304 of IPC. It is a case simpliciter of the offence under Section 304-A of IPC. Section 304-A of IPC by its own definition totally excludes the ingredients of Section 299 or Section 300 of IPC. Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a person's death are ingredients of the offence of culpable homicide. Encountering the argument of the learned counsel for the revisionist, Shri Bajwa has further contended that as per the case of police, the 10 respondent Vijit Singh was aberrant and sozzled, then how it could be gathered that the respondent had the knowledge of all these facts and his act could cause the death of any person. In support of his arguments, he has cited the following judgments:- 1.State of Gujarat VS. Haidarali Kalubhai ((1976),1, SCC, 889. 2.Balwant Singh VS. State of Punjab and Anr.(1994 Supp(2) SCC). 3. Satpal Vs. State of Haryana ((2004) 10 SCC,794). 4. State of Raj. VS. Chittarmal (JT, 2007 (9) 261) 5. Prabhakaran Vs. State of Keral (AIR 2007 SC,2376). 6. Naresh Giri Vs. State of M.P.((2008) 1, SCC,791). 7. Mahadev Prasad Kaushik Vs. State of UP & Anr. (JT 2008 (11) SC, 218). 21. In the case of Haidarali Kalubhai, the deceased along with a Head Constable and two constables was resting on a cot at a hotel situated on a Kutcha Road by the side of the highway. The appellant came to the spot on his tractor. A truck which was formerly driven by him was parked there with only the conductor present. The appellant is alleged to have willfully driven the truck at full speed against the deceased's cot over-throwing him and causing his death. The version of the appellant was that he lost control over the vehicle resulting in the accident. The Sessions Court convicted him under Section 304 Part II which was altered to that under Section 304-A by the High Court and the Supreme Court upheld the judgment of the High Court. 22. The learned counsel took me to the case of Satpal Vs. State of Haryana ((2004) 10, SCC, 794) wherein it has been held that:- “From the facts proved, it cannot be said that the accused had either intended to cause death of the victim or had knowledge that he was likely to cause death by such act. The evidence to prove a case of culpable homicide or murder is completely lacking. Merely 11 because the victim was dashed by the vehicle which was being driven by the appellant, from that alone, neither a case of murder nor that of culpable homicide can be inferred. We are of the view that the facts alleged and proved show that act of the accused was a rash one, as a result of which the victim was dashed causing his death thereby. In our opinion, the prosecution has succeeded in proving its case beyond reasonable doubts but the accused can be said to have committed an offence under Section 304-A IPC and the High Court was not justified in upholding the conviction of the appellant under Section 302 IPC.” (emphasis supplied) 23. There is another case of Naresh Giri Vs. State of M.P.((2008)1, SCC, 791) wherein a train hit the bus at the Railway Crossing causing the death of two passengers and simple and grievous injuries to several passengers. The accused was indicted for the offence under Section 302 of IPC and alternatively under Sections 304, 325 and 323 of IPC. 24. The Hon'ble Apex Court held that:- “doing act with intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide.” (Emphasis supplied) 25. Section 304-A carves out a specific performance where it is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. Similarly, in other cases cited by the learned counsel for the respondent same ratio has been applied. 26. In order to draw a tangible distinction between the offences under Section 304 and 304-A of IPC, I would like to reproduce section 300 of IPC which reads as under:- “SECTION 300.MURDER.- Except in the cases hereinafter excepted, culpable homicide 12 is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- Fourthly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 27. Exception.1-When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. 28. The above exception is subject to the following provisos:- First.- that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. 13 Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception.2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception.3.- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception.4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault. Exception.5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 29. Section 300 of IPC comprises of two parts. The first part relates to culpable homicide amounting to murder and the Second Part contemplates when culpable homicide is not murder. If the culpable homicide is murder then the act of the accused is punishable under Section 302 of IPC and when culpable homicide is not murder then the act of the accused amounts 14 to be punishable under Section 304 of IPC. Section 304 of IPC applies to the following clauses of cases;_ (i) When the case falls under one or the other clauses of Sub-Section 300 but is covered by the exceptions to that Section; (ii)When the injury caused is not of the higher degree of likelihood which is covered by the expression of “sufficient in the ordinary course of nature to cause death”, but is of a lower degree of likelihood generally spoken of as an injury “likely to cause death” and the case also does not fall under Clause (2) of Section 300; (iii)When the act is done with the knowledge that the death is likely to ensue but there is no intention to cause death or an injury likely to cause death. In such cases, there may be either no intention to cause any injury at all or there my be an intention to cause simple or grievous hurt but not an injury likely to cause death. 30. Where a case falls under either (i) or (ii), as stated above, it is within the ambit of Section 304 of IPC Part-I, and a case falls under (iii) above would be covered by Section 304 of IPC Part-II. 31. Whereas in order to constitute an offence under Section 304-A of IPC the death of a person must have been caused