• Advice on Matter where chargesheet is filed with IPC 279 & 338

Would like to get advice on a Case where victim has been charged with IPC 279 / 338!

Summary - 
Victim, was driving on public way and meet with accident where Girl had MINOR injury (2-3 Stitches and few rashes) post this episode of accident, victim immediately took her to hospital and have paid lump-sum amount for treatment and some extra in cash BUT have no recipt as Hospital denied giving it to anyone else excepts Patients family and they had no objection them. 
But later Police had filed a case and added 279 & 338 section and chargesheet has been filed now so Want to know how to proceed for this matter and which court shall be looking for such case.

Also, any kind of guidance on outcome for such case will be Big HELP; please some past Judgement on similar case.

Thanks in Anticipation!
Asked 4 months ago in Criminal Law from Mumbai, Maharashtra
Religion: Hindu
sec.279,338 IPC  is for  rash and  negligent driving 

2) you have to contest the case before trial court 

3) it has to be proved by the prosecution that the accident was caused due to the rash and negligent driving by the accused 

4) since accused has taken girl to hospital court would also consider said fact while awarding sentence 
Ajay Sethi
Advocate, Mumbai
23279 Answers
1219 Consultations
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Delhi District Court
25. In "Namdeo vs State Of Maharashtra", Crl Appeal ... on 27 June, 2015
Author: Ms. Saumya Chauhan
                      IN THE COURT OF MS. SAUMYA CHAUHAN,
                 METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT

State v. Joginder Kumar
FIR No. 305/10
PS Paschim Vihar
U/s 279/338 IPC
                                        JUDGMENT
C C No.                                      :         151/2/14

Date of Institution                          :         22.02.2011

Date of Commission of Offence                :         15.10.2010

Name of the complainant                      :         Prem Singh
                                                       S/o Trilok Singh
                                                       R/o B-209, Gali No.4,
                                                       Keshav Nagar, Near Nathupura
                                                       Delhi

Name & address of the accused                :         Joginder Kumar
                                                       S/o Harbans Lal
                                                       R/o J-252, Shiv Ram Park, Nangloi
                                                       Delhi

Offence complained of                        :         279/338 IPC & 134/187 M V Act

Plea of accused                              :         Pleaded not guilty

Final Order                                  :         Convicted

Date of reserve for judgment                 :         22.06.2015

Date of announcing of judgment               :         27.06.2015

          BRIEF STATEMENT OF THE REASONS FOR THE DECISION

1. Vide this judgment this court shall decide the present case u/s 279/338 IPC.

2. The briefly stated story of the prosecution is that on 15.10.2010 at about 7.00 State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 1/12 FIR No. 305/10 PS Paschim Vihar pm, the injured namely Prem Singh was present at the Peeragarhi bus stop, Udyog Nagar, Paschim Vihar, Delhi. When his bus arrived at the bus stop and he came forward to board the bus, one car bearing no. DL-8CM-7359 which was being driven by the accused Joginder Kumar came from behind. The driver turned the car towards the injured and the front tyre of the car ran over his foot. The public stopped the car and asked the driver to take the injured to the hospital. However, the driver took the car towards Nangloi and asked the injured to get down from his car and fled away. The injured called on 100 number and PCR van took him to SGM hospital. The details of the car were obtained from the transport authority. On basis of the same, the accused was apprehended. Thus the accused is alleged to have committed an offence under Section 279/338 IPC & under Section 134/187 M V Act. After completing the formalities, investigation was carried out.

3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused under Section 207 Cr.P.C. Notice under Section 251 Cr.P.C for offence under Section 279/338 IPC & under Section 134/187 M V Act was framed against him vide order dated 25.07.2014 to which he pleaded not guilty and claimed trial.

4. In order to prove the case against the accused, the prosecution has examined seven witnesses i.e (1) Prem Singh (2) Ct. Balraj (3) Brijpal (4) HC Mahender Singh (5) Retired ASI Manni Ram (6) Raghubir Singh (7) SI Karan Singh. State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 2/12 FIR No. 305/10 PS Paschim Vihar

5. PW-1 Prem Singh who is the injured had deposed that on 15.10.2010 he was standing at Peeragarhi bus stand on the road going towards G. T. Karnal Road. At about 7.00 pm, one bus came from Vikaspuri side and he moved forward to board the bus. All of a sudden, a car bearing no. DL8CN 7359 came from behind and driver turned it towards him. The front tyre of the car struck him on the left foot and he sustained injuries. He deposed that the public got the car stopped. The driver Joginder said that he would take the witness to the hospital and made him sit in the car. However, instead of taking him to the hospital, he took him towards Nangloi and made him get down from the car. Thereafter, the accused fled away with his car. Witness deposed that he called on 100 number and PCR van took him to SGM hospital and his statement was recorded by the police which is Ex.PW1/A. He identified the accused in the court. The identity of the car is not disputed by the accused.

6. In the cross examination, witness stated that his supplementary statement was recorded at PS Paschim Vihar while his statement Ex.PW1/A was recorded in the hospital. He deposed that he had reached the PS at about 12.00 noon and remained there for half an hour. He stated that he was not taken to the spot or any other place for investigation. He denied the suggestion that the accused was not driving the said car on the given date, time and place or that the IO had obtained his signature on blank papers.

State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 3/12 FIR No. 305/10 PS Paschim Vihar

7. PW-2 Ct. Balraj has deposed that on 15.10.2010 he along with SI Karan Singh had gone to the SGM hospital where the IO recorded the statement of injured. The IO prepared the tehrir and handed it over to the witness for getting the FIR registered. He got registered the FIR and returned back to the spot and handed over the copy of FIR and original rukka to the IO. In the cross examination, he stated that he had reached at SGM hospital at about 8.15 pm and after taking tehrir from the IO, he had reached the PS at about 10.00 pm.

8. PW-3 Brij Pal, dealing clerk at Wazirpur Transport Authority had brought the certified copy of the particulars of the car in question. He deposed that as per records, the car no. DL-8CN-7359 is owned by the accused Joginder. The certified copy of the same is Ex.PW3/A.

9. PW-3 HC Mahender Singh deposed that on 18.10.2010 he was posted as HC at Vikaspuri Zone, PCR. He was on duty in Ambulance P-100 from 8.00 to 8.00 pm. He deposed that he had received the call from PCR 100 number and received the information of the injured. He took the injured to the SGM hospital.

10. PW-4 Retired ASI Mani Ram deposed that on 11.11.2010 he was posted as ASI at Police Station City Hansi, District Hisar, Haryana. He was the investigating officer in the case FIR No. 646/10 under Section 279/337 IPC. He had seized the Santro car bearing no. DL-8CN-7359 along with driving license and the RC of the car. He handed over the copy of the same to the IO SI Karan Singh.

11. PW-2, 3 and 4 were not cross examined by the accused. State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 4/12 FIR No. 305/10 PS Paschim Vihar

12. PW-5 Raghubir Singh, Retired Mechanical Inspector, Haryana Roadways has deposed that on 12.11.2010, he had conducted the mechanical inspection of the car no.DL-8CN-7359 at the instance of ASI Mani Ram. His report is Ex.PW5/A. In the cross examination, he admitted that he had not conducted the mechanical inspection of the vehicle in the present FIR.

13. PW-6 SI Karan Singh deposed that on 15.10.2010 he was posted at PS Paschim Vihar as ASI. On that day, he received DD No.40A from the Ahlmad on which he had gone to the SGM hospital along with Ct. Balraj. Injured Prem Singh was admitted in the hospital. The witness deposed that he recorded the statement of injured and collected his MLC. He prepared the rukka and handed it over to Ct. Balraj for registration of FIR. Thereafter, he visited the spot i.e Udyog Nagar, Peeragarhi chowk. He deposed that no public person was present there. At about 11.00 pm, Ct. Balraj reached the spot and handed over the copy of FIR and original rukka to the witness. He further deposed that on the next day, he got the information from the transport authority about the car bearing no. DL8CN 7359. On the next date, he visited the house of the car owner Joginder Kumar but he was not present at that time. He further deposed that on 05.11.2010 Joginder Kumar came to PS Paschim Vihar. On the same day, injured Prem Singh had come to the PS to collect his documents. He identified the accused in the Police Station. Notice under Section 133 M V Act was served upon the accused by the IO. Thereafter, he arrested the accused State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 5/12 FIR No. 305/10 PS Paschim Vihar vide memo Ex.PW1/B and conducted his personal search vide memo Ex.PW6/A. He asked the accused to produce his driving license and other documents. However, the accused replied that his documents have already been deposited in Hansi, Haryana in another case. He prepared the site plan at the instance of the complainant which is Ex.PW6/B. He further deposed that on 11.11.2010 he reached at PS Hansi City where ASI Mani Ram met him. On 12.11.2010, the vehicle was mechanically inspected by the mechanical inspector. Witness recorded the statement of mechanical inspector and obtained the photocopy of the document regarding the ownership of the car. Thereafter, he prepared the charge-sheet and filed in the court.

14. During cross examination, he stated that he had received the information regarding the incident at about 7.45 pm. He admitted that the car was not present at the spot when he reached the spot at about 9.30 pm. He also admitted that he had not obtained the signature of the complainant on the site plan. He also admitted that he had not got the mechanical inspection conducted in the present FIR and the same was conducted by the IO in FIR No. 642/10 PS Hansi City. He admitted that no judicial TIP was conducted by him. He denied the suggestion that he is deposing falsely.

15. Thereafter, the PE was closed. Statement of accused was recorded u/s 313 Cr.P.C, wherein he denied all the allegations and pleaded innocence. No DE was led despite opportunity. The accused had stated that he was not driving State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 6/12 FIR No. 305/10 PS Paschim Vihar the car in a rash and negligent manner as there was lot of traffic. He stated that the speed of the car was 20-30 kmph. He admitted that the accident had taken place from his car however, it was not his fault. The injured was trying to board a moving bus and his leg had got struck with his car. He stopped the car and made him sit in the car and took him to the hospital. However, injured stated raising hue and cry stating that they will kill him. He started protesting and asked him to stop the car. Hence, the accused stopped the car before the petrol pump and injured got down from the car.

16. I have heard the submissions addressed by the Learned APP for state and the Legal Aid Counsel for accused and carefully perused the documents on record.

17. Ld. Counsel for accused has submitted that the prosecution has failed to prove its case beyond all reasonable doubts. He submits that the site plan does not bear the signature of the complainant. Also, the mechanical inspection of the vehicle i.e car no. DL8CN 7359 was conducted on 04.11.2010 while the accident had taken place on 15.10.2010. He further submits that as per the prosecution the same car had met with an accident in FIR No.646/10 registered at PS Hansi, Haryana. Hence, the damage shown in the mechanical inspection report Ex.PW5/A cannot be read in evidence for the purpose of this case. He further submits that no judicial TIP was conducted by the IO and the manner in which the injured had identified the accused at the police station is quite doubtful.

State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 7/12 FIR No. 305/10 PS Paschim Vihar

18. On the other hand, Ld. APP has submitted that the prosecution has successfully proved its case against the accused and he is liable to be convicted for the offence alleged.

19. To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows:-

1. That the accident actually took place.
2. That the accident took place due to rash and negligent driving.
3. That the accused was the person who was driving the vehicle at the relevant time.
20. Before proceeding further, let us discuss the meaning of the expressions "rash"

and "negligent". These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Black's Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
21. The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the case of "S.N. Hussain v. State of Andhra Pradesh", AIR 1972 SC 685 as under :

"Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 8/12 FIR No. 305/10 PS Paschim Vihar proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted............Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case".

22. In the case at hand, it has been admitted by the accused that he was driving the car no. DL-8CN-7359 on the alleged date, time and place and that his car had struck the injured due to which injury was caused to him. Since the factum of accident has not been disputed by the accused nor has he disputed his identity or that of the above said car, hence, the only question before the court is whether the accused was driving the car in a rash and negligent manner, and had caused grievous injuries to Prem Singh or not.

23. There are no photographs of the spot on record. The court agrees with the submissions of the Ld. Counsel for accused that since the mechanical inspection report Ex.PW5/A was prepared after the car had met with the subsequent accident and same cannot be read in evidence.

24. However, the testimony of the injured i.e PW-1 has remained intact and no discrepancy whatsoever has been found in the same. He has clearly stated the State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 9/12 FIR No. 305/10 PS Paschim Vihar entire incident and how the car had come towards him when he was trying to board the bus. The accused has not been able to impeach the credibility of PW-1 or marr the veracity of his statement.

25. In "Namdeo vs State of Maharashtra", Crl Appeal No.914/2006 decided on 13.03.2007, the Hon'ble Supreme Court of India relied upon its earlier judgment in "Vadivelu Thevar vs State of Madras" 1957 SER 981 wherein it was observed by the Hon'ble Court as under:-

1. As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
2. Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule prudence that corroboration should be insisted upon, for example in case of a child witness or an accomplice or a witness of analogue character.
3. Whether corroboration of the testimony of a single witness is or is not necessary must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depend upon the judicial discretion of the judge before whom the case comes."
26. The Hon'ble Supreme Court further observed that the testimony of a solitary witness can be made the basis of conviction. The credibility of the witness is State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 10/12 FIR No. 305/10 PS Paschim Vihar required to be decided with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the court as fact wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony.

27. In case titled as "Shadab @ Shamshad vs State of Govt. of NCT of Delhi", Criminal Appeal 1377/2012 decided on 11.03.2014 it was held by the Hon'ble High Court of Delhi, "There is no hard and fast rule that the testimony of injured requires corroboration before conviction. However, the rule of prudence has to be kept in mind. If the testimony of injured is trustworthy, categorically free of bias, and if there is nothing on record to suggest that the injured has any motive to falsely implicate the accused and allow his real assailants go scot free, the conviction can be based on the sole testimony of injured."

28. In the case at hand, the testimony of the sole eye witness / injured PW-1 has given a trustworthy and reliable account of the incident and defence has not been able to impeach his credibility in the cross examination. There is no reason to disbelieve the testimony of PW-1. Since his testimony has remained unimpeached, the court is of the view that no further corroboration is required.

29. In view of the above discussion, the court is of the view that the prosecution has successfully proved its case. It has been successfully proved by the prosecution that the accident was caused due to the rash and negligent driving by the accused and that the grievous injuries caused to PW-1 was a result of State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 11/12 FIR No. 305/10 PS Paschim Vihar such driving. It has also been proved that the accused did not provide medical aid to the injured and ran away after leaving him on the road. Hence, the accused is held guilty of the offence punishable u/s 279 & 338 Indian Penal Code and 134/187 Motor Vehicle Act. Accordingly, the accused stands convicted for offence under Section 279/338 Indian Penal Code & 134/187 Motor Vehicles Act.

30. Be listed arguments on point of sentence.

ANNOUNCED IN THE OPEN COURT ON 27th June 2015 (SAUMYA CHAUHAN) MM-07(West)/THC/27.06.15 State v. Joginder Kumar U/s 279/338 IPC & 134/187 M V Act 12/12 FIR No. 305/10 PS Paschim Vihar
Ajay Sethi
Advocate, Mumbai
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Supreme Court in the case of Dalbir Singh v. State of Haryana and Ors. AIR 2000 SC 1677 where the Supreme Court held that automobiles have become deathtraps. Any leniency shown to the drivers who are found guilty of rash driving would be at the risk of further escalation of road accident. In the case of Sadha Singh and Anr. v. State of Punjab , keeping in view the facts of the case where the accused was found guilty for an offence under Section 307 of the IPC, the Supreme Court has held that the sentence is a matter in the discretion of the trial Court to be exercised on sound judicial principles and reduction of sentence by enhancing fine by the High Court would not be a proper approach
Ajay Sethi
Advocate, Mumbai
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 Devender Vs. State 185(2011)DLT655, passed by High Court of Delhi, wherein, it is held that:

7.It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus. 8.The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence, the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer 9. A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequence. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to Page no.11 of 13 FIR no.684/06 PS Narela U/s. 279/338 IPC State Vs. Mool Chand Saini any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.

19. Further, I would also like to emphasize on the judgment Ram Avtar Vs. State of Rajasthan, II (2006) ACC 438, passed by Rajasthan High Court wherein it is held that:

Thus, the essential ingredients for offence under section 279 IPC is that the vehicle should be driven in "rash and negligent manner". The concept of rashness and negligence is borrowed from the law of tort into the criminal law. But in criminal law for rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. On the other hand, criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to the individual in particular, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted (Ref. To AIR 1944 Lah. 163). Hence, the prosecution has to prove the existence of these two elements to bring home the offence under Section 279 IPC. However, the mere fact that accused was driving vehicle at high speed may not attract provision of Section 279 IPC. For, speed of the vehicle is not always determinative of the question whether vehicle was driven in a rash and negligent manner. One has to consider the surrounding circumstances of the case to conclude whether the driving was done in rash and negligent manner or not?

8.In the case of Badri Prasad Tiwari Vs. The State I (1994) ACC 476: 1994 Cri. LJ 389 (Qri.), the Hon'ble Orissa High Court has held that "In order to constitute an offence under Section 279 IPC, it must be established that the accused was driving the vehicle on a public way in a rash and negligent manner to endanger human life or to likely Page no.12 of 13 FIR no.684/06 PS Narela U/s. 279/338 IPC State Vs. Mool Chand Saini cause hurt or injury to any other person.
Ajay Sethi
Advocate, Mumbai
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The word victim is confusing. Probably you meant offender. Sec. 279 relates to rash driving on a public way and is cignigible. Section 338 though non cognigible is compoundable with the permission of Court. You should contact the victim's family and approach the Magistrate 's court for necessary relief. Please consult a criminal lawyer of your area for further guidance .
Sushil Jha
Advocate, Patna
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Either the accused has to compound the offence with the complainant, or he will have to prove his innocence at the trial. If the charges have been framed then the case must be pending in the court of jurisdictional magistrate.
Ashish Davessar
Advocate, Jaipur
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conviction depends upon evidence on record 

2) criminal courts are overburdened . it may take years for disposal .

3) it depends upon pendency of cases in court 

4) make application for compounding offence under section 338 of IPC 

5) make application to court for   exercising power under Section 258 Cr.P.C.to stop  the proceeding  which shall operate as discharge of the accused as no witness as have been examined.
Ajay Sethi
Advocate, Mumbai
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Delhi District Court
State vs . Banarsi Dass on 25 September, 2013
Author: Sh. Harjyot Bhalla
         IN THE COURT OF HARJYOT SINGH BHALLA :
         M.M.­07(SOUTH WEST), DWARKA, NEW DELHI 


                                         STATE  VS. BANARSI DASS
                                         FIR NO.:   73/12
                                         P.S.        :  DWARKA NORTH
                                         U.S.        :   279/337/338 IPC  
J U D G M E N T
a.  Sl. No. of the case and               :  CN 3782/13
     date of its institution                 16.07.2013
b.  Name of the complainant               :  Sh. Khalil Kureshi 
c.  Date of commission of offence   :  12.04.2012
d.  Name of the accused,                  : Banarsi Dass 
     Parentage and residence                S/o Sh. Shiv Charan Dass
                                            R/o  B­44, Suraj Vihar, Patel 
                                            Garden, Kakrola, New Delhi. 
e.  Offence complained of                   :U/s 279/337/338 IPC 
f.  Plea of accused                         :Pleaded not guilty 
g. Date when judgment reserved       :Oral
h. Date when judgment pronounced  :25.09.2013
i. Final order                              :Discharged for the offence 
                                             under Section 279 IPC and 
                                             Section 337 & 338 IPC 
                                             compounded

BRIEF STATEMENT OF FACTS FOR THE DECISION:­ 

1. It is the case of the prosecution that on 12.04.2012 at about 02.30 pm between red light of sector­3 & sector 13, Dwarka, New Delhi accused was driving a vehicle RTV bearing registration no. DL­1V­ State Vs. Banarasi Dass Page no.1/5 FIR no. 73/12 7428 in rash and negligent manner and at a high speed so as to endanger human life and personal safety of others and while driving the above­stated vehicle in above­stated manner, the said vehicle had hit and injured one Parvez Kureshi and Khalil Kureshi who were traveling on a Scooter bearing no. DL­8SD­ 7095 and cause injuries to both and thereby accused committed offences punishable U/s 279/337/338 IPC.

2. Charge sheet in the present case was filed under Section 279/337/338 IPC. Matter was compromised between both the injured and the accused and compensation was paid to the injured as agreed before the Mediation Cell. Statement of the parties were recorded and offence under Section 337 & 338 IPC were compounded with the permission of the court.

3. It is pertinent to note that the FIR was registered on the complaint which gives no description of how the vehicle was being driven rashly and negligently. Even otherwise, the injured has compounded the major offence disclosed in the charge sheet. In this background the fate of trial viz­a­viz Section 279 IPC is to be considered. An issue has been raised by the Ld. Counsel for the accused that this is a fit case for exercising power under Section 258 of Cr.P.C. for stopping the proceedings as nothing fruitful would be achieved. There is possibility of witnesses not deposing against the accused or turning hostile. I agree with the submissions of the Ld. Counsel. Even more relevant is that the asal tehrir and FIR are devoid of any description of the manner of accident. The exact manner in which the vehicle was being driven by the accused is not mentioned. Even State Vs. Banarasi Dass Page no.2/5 FIR no. 73/12 otherwise, Sections 279 and 337/338 of IPC punish rash and negligent act. The only difference is that in Section 279 IPC there is rashness and negligence which may result in injury and Section 337/ 338 IPC is invoked when such an act actually results in an injury being caused. Section 337/338 IPC has been made compoundable but Section 279 IPC is not compoundable. Perhaps, one reason is that, as far as Section 337/ 338 IPC are concerned, there is a determinable victim i.e. injured whereas in offence under Section 279 IPC, there is no determinable injured who can compound the offence. In a recent decision entitled as Adwait Surendra Aatre Vs. The State of Maharashtra & Ors., in Criminal Application no.124 of 2011, whereas Ld. Single Judge of Hon'ble High Court of Bombay held and I quote :

"...Therefore, there is an apprehension in the mind of both, the applicant / accused and complainant, that even by approaching the trial court, they may not be allowed compounding the entire proceeding because of inclusion of Section 279 IPC which is stated to be non­compoundable...
7. After minute reading of both these sections, it is seen that the alleged act of rash and neglient driving, endangering human life, is required to be proved as necessary ingredient to constitute offence under Section 279 IPC and by allegedly doing any act rashly or negligently as to endagering the human life are also the same ingredient to constitute the offence under Section 338 IPC.
Therefore, such ingredients which are common, cannot be separately dealt with. The requirement of offence under Section 338 IPC is all that is covered in Section 279 of IPC. As specifically mentioned in the Code, when the offence under Section 338 IPC is compoundable, there cannot be any State Vs. Banarasi Dass Page no.3/5 FIR no. 73/12 impediment or bar to hold that the alleged offence under Section 279 of IPC read with Section 338 IPC could also be compounded. It is not a different act complained of to constitute a separate offence but are the essential ingredients of section 338 IPC in the present case. In short, the offence under Section 338 IPC is compoundable with permission of the Court, which, amounts to acquittal. After such compounding with the consent of 5 apl 124­11.

... the aggrieved party injured complainant, the accused cannot be prosecuted or tried for the same act which are complained of by different title or ead under Section 279 of IPC. Though it may not be a second trial, but hte accused, who is once acquitted from the charge under Section 338 IPC upon compounding of the charge based on thesame evidence, would be vexed, if he is directed to under go further trial under Section 279 for lesser punishment. Thus, by the present application, the applicant has made out a case for compoinding of offence...

...I am satisfied that once the offence under Section 338 IP is compounded, nothing survives for trying the offence under Section 279 IPC. The FIR or Charge sheet for additional Section 279 IPC would be meaningless when the cognizance is taken under Section 338 of IPC. The proceedings for the offence under Section 279 IPC, therefore deserves to be quashed and set aside." (Emphasis supplied)

4. Therefore, the Ld. Single Judge was of the view that once injury was received by rash and negligent driving, only Section 338 IPC ought to be invoked i.e. the graver of the two offences and Section 279 IPC is not made out, and therefore, the court quashed proceedings under Section 279 IPC and directed the parties to appear before Ld. Magistrate for compounding the offence under Section 279 IPC.

State Vs. Banarasi Dass                                                              Page no.4/5
FIR no. 73/12
5. Ld. APP for State has submitted that the judgment is not laying down correct law and trial for offence under Section 279 IPC must be completed and power under Section 258 Cr.P.C., ought not to be exercised in the present case.

6. The court was also of the view that once offence under Section 338 IPC is compounded continuing the trial for the offence under Section 279 IPC shall be vexing the accused twice. Although, I am not fully in agreement with the view that Section 279 IPC looses its significance once Section 337/338 IPC are invoked by the police and that Section 337/338 IPC is not independent but only graver form of the offence under Section 279 IPC. Keeping in view the circumstances of the case, the decision of Bombay High Court and the futility of purpose in proceeding with the trial of minor offence when the major offence has already been compounded by the victim, I am of the view that present case is a fit case for exercising power under Section 258 Cr.P.C. I direct that the proceeding in the present case are stopped which shall operate as discharge of the accused as no witness as have been examined.




Announced & dictated in 
the open Court on 25.09.2013                     (Harjyot Singh Bhalla)    
                                               Metropolitan Magistrate 
                                              Dwarka Courts: New Delhi




State Vs. Banarasi Dass                                                         Page no.5/5
FIR no. 73/12
 
Ajay Sethi
Advocate, Mumbai
23279 Answers
1219 Consultations
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1. It is more than 50%.
2. The FIR can be quashed by the HC if there is a compromise. 
3. If there is a compromise then there is no need to apply for sending the case to Lok Adalat.
4, If there is a trial the result could be conviction or acquittal of the accused.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
But later Police had filed a case and added 279 & 338 section and chargesheet has been filed now so Want to know how to proceed for this matter and which court shall be looking for such case.

First obtain anticipatory bail and afterwards when you receive notice from court, you may appear in person accompanied by an advocate.  
During trial proceedings, you may arrive at a compromise with the defacto complainant and try to get the case withdrawn instead of challenging the same.
You can consult an advocate and proceed as per his advise on further issues.
T Kalaiselvan
Advocate, Vellore
14056 Answers
127 Consultations
5.0 on 5.0
1. What is conviction rate in such cases .

Conviction rate in such cases are very less, hence it can be challenged properly on the basis of merits.




2.  If the person who meet with accident is ready to settle case...  can this case be sorted out as Sec 279 is not compoundable!

Though it is non-compoundable, there are ways to get the case acquitted by the defacto complainant turning as hostile witness.




3. Can we put application to  lok adult, Please elloborate! 

NO.





4. how long such case takes to come on board .. as it's already 2-3 Years

The duration of the trial proceedings cannot be predicted, generally the trial shall take at least two years to conclude.




5. If case goes for court Trail what can be probable ruling... 

Challenge the case on the basis of merits in your side and see for the probables yourself.




6. Best Way to SORT this kind of cases at the earliest!

No suggestion, you have to sail with the trial proceedings.
T Kalaiselvan
Advocate, Vellore
14056 Answers
127 Consultations
5.0 on 5.0

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