THE STATE OF ARUNACHAL PRADESH versus RAMCHANDRA RABIDAS @ RATAN RABIDAS & ANR. on 4 October 2019

THE STATE OF ARUNACHAL PRADESH

v.

RAMCHANDRA RABIDAS @ RATAN RABIDAS & ANR.

(Criminal Appeal No. 905 of 2010)

OCTOBER 04, 2019

[INDU MALHOTRA AND SANJIV KHANNA, JJ.]

Motor Vehicles Act, 1988 – Penal Code, 1860 – Conflictbetween – The High Court held that road traffic offences shall bedealt with only under the provisions of the Motor Vehicles Act, 1988and the prosecution of cases of road traffic or motor vehicleoffences under the provisions of the Penal Code is without sanctionof law – Propriety of – Held: Not proper – The position of law iswell-settled – The Supreme Court has consistently held that the M.V.Act, 1988 is a complete code in itself in so far as motor vehiclesare concerned – However, there is no bar under the M.V. Act orotherwise, to try and prosecute offences under the IPC for anoffence relating to motor vehicle accidents – The offencesprescribed under the IPC are independent of the offencesprescribed under the M.V. Act – The legislative intent of the M.V.Act, and in particular Chapter XIII of the M.V. Act, was not tooverride or supersede the provisions of the IPC in so far asconvictions of offenders in motor vehicle accidents are concerned – There is no provision under the M.V. Act which separately dealswith offences causing death, or grievous hurt, or hurt by a motorvehicle in cases of motor vehicle accidents – Offences underChapter XIII of the M.V. Act, cannot abrogate the applicability ofthe provisions u/s. 297, 304, 304A, 337 and 338 of the IPC – Thereis no conflict between the provisions of the IPC and the M.V. Act– Both statutes operate in entirely different spheres – GeneralClauses Act, 1897 – s. 26.

Doctrines/Principles – The principle of proportionalitybetween the crime and punishment – In relation to road trafficoffences – discussed.

Allowing the appeals, the Court

HELD: 1. In view of this Court there is no conflict betweenthe provisions of the Penal Code, 1860 and the Motor Vehicles

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AAct, 1988. Both the statutes operate in entirely different spheres.The offences provided under both the statutes are separate anddistinct from each other. The penal consequences provided underboth the statutes are also independent and distinct from eachother. The ingredients of offences under the both statutes, aredifferent, and an offender can be tried and punishedBindependently under both statutes. The principle that the speciallaw should prevail over the general law, has no application incases of prosecution of offenders in road accidents under theIPC and M.V. Act. [Para 6] [787-D]

2. It is pertinent to mention that there is no provisionCunder the M.V. Act which separately deals with offences causingdeath, or grievous hurt, or hurt by a motor vehicle in cases ofmotor vehicle accidents. Chapter XIII of the M.V. Act is silentabout the act of rash and negligent driving resulting in death,or hurt, or grievous hurt, to persons nor does it prescribe any Dseparate punishment for the same; whereas Sections 279, 304Part II, 304A, 337 and 338 of the IPC have been specificallyframed to deal with such offences. [Para 7] [787-E-F]

3. Section 26 of the General Clauses Act, 1897 provides,“Where an act or omission constitutes an offence under two orEmore enactments, then the offender shall be liable to beprosecuted and punished under either or any of thoseenactments, but shall not be liable to be punished twice for thesame offence.” It is well settled that an act or an omission canconstitute an offence under the IPC and at the same time, bean offence under any other law. The finding of the High CourtFthat the prosecution of offenders under two statutes i.e. the M.V.Act and the IPC, is unsustainable and contrary to law, istherefore, set aside. [Paras 8] [787-G; 788-A]

4. The legislative intent of the MV Act, and in particularChapter XIII of the MV Act, was not to override or supersedeGthe provisions of the IPC in so far as convictions of offendersin motor vehicle accidents are concerned. Offences underChapter XIII of the MV Act, cannot abrogate the applicabilityof the provisions under Sections 297, 304, 304A, 337 and 338of the IPC. The offences do not overlap, and therefore, theHmaxim of “generalia specialibus nonderogant” is inapplicable, and could not have been invoked. The offences prescribed under theIPC are independent of the offences prescribed under the M.V.Act. It cannot be said that prosecution of road traffic/motorvehicle offenders under the IPC would offend Section 5 of theIPC, as held by the High Court, in so far as punishment foroffences under the M.V. Act is concerned. [Para 9] [790-C-D]

5. The principle of proportionality between the crime andpunishment has to be borne in mind. The principle of justpunishment is the bedrock of sentencing in respect of a criminaloffence. The maximum imprisonment for a first time offenceunder Chapter XIII of the M.V. Act, is up to only six months;whereas the maximum imprisonment for a first time offenceunder the IPC in relation to road traffic offences can go upto 10years under Section 304 Part II of the IPC. The sentenceimposed by the courts should be commensurate with theseriousness of the offence, and should have a deterring effecton wrong-doers. The punishment of offenders of motor vehicleaccidents under the IPC is stricter and proportionate to theoffence committed, as compared with the M.V. Act. [Para 12][791-A-C]

7. This Court thus holds that a prosecution, if otherwisemaintainable, would lie both under the IPC and the MV Act, sinceboth the statutes operate with full vigour, in their ownindependent spheres. Even assuming that some of theprovisions of the MV Act and IPC are overlapping, it cannot besaid that the offences under both the statutes are incompatible.[Para 13] [791-C-D]

T.S. Baliah v. T.S. Rangachari [1969] 3 SCR 65 ; Stateof Maharashtra v. Sayyed Hassan AIR 2018 SC5348 ; Dalbir Singh v. State of Haryana (2000) 5 SCC82 : [2000] 3 SCR 1000 ; Guru Basavaraj v. State ofKarnataka (2012) 8 SCC 734 : [2012] 8 SCR 189 –relied on.

The New India Assurance Co. Ltd. v. C. Padma andOrs. (2003) 7 SCC 713 : [2003] 3 Suppl. SCR 677 ;Deepal Girishbhai Soni and Ors. v. United IndiaInsurance Co. Ltd. (2004) 5 SCC 385 : [2004] SCR213 ; Vimla Devi and Ors. v. National Insurance A

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ACompany Limited and Ors. (2019) 2 SCC 186 ; M.K.Kunhimohammed v. P.A. Ahmedkutty and Ors. (1987)4 SCC 284 : [1987] 3 SCR 1149 ; Naresh Giri v. Stateof M.P. (2008) 1 SCC 791 : [2007] 11 SCR 987;Rathnashalvan v. State of Karnataka (2007) 3 SCC474 ; [2007] 1 SCR 774 ; Alister Anthony Pareira v.BState of Maharashtra (2012) 2 SCC 648 : [2012] 1SCR 145 ; N.K.V. Bros (P) Ltd. v. M. Karwnai Ammal& Ors. (1980) 3 SCC 457 : [1980] 3 SCR 101 ; GopalSingh v. State of Uttarakhand (2013) 7 SCC 545 :[2013] 4 SCR 104 ; State of Karnataka v. SharanappaCBasanagouda Aregoudar (2002) 3 SCC 738 : [2002]2 SCR 692 ; National Insurance Co. Ltd. v. AnnappaIrappa Nesaria, (2008) 3 SCC 464 : [2008] 1 SCR1061 ; Gottumukkala Appala Narasimha Raju v.National Insurance Co. Ltd. (2007) 13 SCC 446 :[2007] 2 SCR 939 – referred to.

STATE OF ARUNACHAL PRADESH v.RAMCHANDRA RABIDAS@ RATAN RABIDAS & ANR.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 905 of 2010.

From the Judgment and Order dated 22.12.2008 of the GauhatiHigh Court, Agartala Bench in Criminal Revision No. 33 of 2002.

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Criminal Appeal No. A.No. 906/2010

Kabir Shankar Bose, Mepung Tadar Bage, Anil Shrivastav,Shuvodeep Roy, Ms. Varsha Poddar, Advs. for the Appellant.

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Anil Kumar Shrivastav, Rituraj Biswas, Satyendra KumarSrivastav, Advs. for the Respondents.

The Judgment of the Court was delivered by D

INDU MALHOTRA, J.

1. The issue which has arisen for consideration in the presentCriminal Appeals is whether the Gauhati High Court was justified inissuing directions that road traffic offences shall be dealt with only underthe provisions of the Motor Vehicles Act, 1988 (“M.V. Act”), and inholding that in cases of road traffic or motor vehicle offences,prosecution under the provisions of Indian Penal Code,1860 (“IPC”) iswithout sanction of law, and recourse to the provisions of the IPC wouldbe unsustainable in law?

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2. The Gauhati High Court, Agartala bench vide the impugnedjudgment dated 22.12.2008 held that:

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i. Sections 183 and 184 of the M.V. Act, which relate todriving of motor vehicles at excessive speeds anddangerously, and other offences under Chapter XIII ofthe M.V. Act are compoundable before the Police, orin court, and that no further proceeding shall be takenagainst the accused after he has pleaded guilty. On thispremise, it was held “that the provisions of Cr.P.C mustsuccumb to the statutory provisions to the M.V.Act,and any investigation, inquiry or trial contrary tothe same, would be illegal and unsustainable in law”.[Para 14 of the impugned judgment].

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ii. The IPC and Code of Criminal Procedure, 1973(“Cr.P.C”) are placed in Entry No. 1 and 2 of theConcurrent List of the Seventh Schedule to theConstitution of India. The M.V. Act,1988 falls underEntry No. 35 of the Concurrent List.

Hence, the status of the M.V. Act is at par with theIPC and Cr.P.C, and it cannot be presumed that M.V.Act is either a subordinate legislation, or inferior to theIPC and Cr.P.C in status. [Para 21 of the impugnedjudgment]

iii. Section 5 of the IPC removes any kind of ambiguityabout the conviction and punishment of offenders undera special enactment, which covers the field. Section 208of the M.V. Act has laid down a special procedure fordisposal of road traffic offences. Hence, recourse to theIPC would offend Section 5 of the IPC.

Section 5 of the IPC recognizes the supremacy of thespecial laws, which cannot be diluted under the garb ofSection 26 of the General Clauses Act, 1897. [Paras 24-26 of the impugned judgment]

iv. The prosecution of road traffic offences under the IPCis not permitted, since it has no sanction of law. Theonly exception to this rule would be where the offencecannot be adequately punished under the M.V. Act.[Para 24-26 of the impugned judgment]

v. Since road traffic offences can be regulated andadequately dealt with under the provisions of MV Act,resort to the provisions of the IPC, which is a generallaw should be avoided. [Para 28 of the impugnedjudgment]

vi. Sections 183 to 188 of the MV Act, which relate topunishment for driving at excessive speed ordangerously or in a drunken condition, etc., are silentabout the outcome of the accidents. These penalprovisions do not prescribe any separate punishment forcausing hurt to people or for damaging any property.However, this does not mean that the Legislature was not aware or totally oblivious to the consequences ofdangerous driving while enacting the M.V. Act. [Para30 of the impugned judgment]

vii. If a person cannot be convicted for causing hurt to anyperson while driving a motor vehicle in a rash anddangerous manner under the MV Act, then the saidoffender cannot also be convicted under the IPC, sincethe IPC does not expressly take within its purview roadtraffic offences. [Para 30 of the impugned judgment]

viii. To permit the prosecution of offenders under theprovisions of any other penal law other than the M.V.Act in cases of motor vehicle offences would amountto overriding the M.V. Act, which is a special enactmentframed by Parliament for motor vehicle offences. Byinvoking provisions of the IPC for motor vehicleoffences, the basic character and structure of the M.V.Act would get distorted, and would not help in curbingthe rising rate of motor vehicle accidents. [Para 33 ofthe impugned judgment]

ix. Prosecution of offenders in cases of road trafficaccidents must be carried out under the M.V. Act as ageneral rule subject to one exception i.e to try offendersin cases of culpable homicide not amounting to murderunder S. 304 IPC, because sentence of imprisonmentof 6 months provided under the M.V. Act appears tobe inadequate, going by the rising rate of violent roadaccidents.

The prosecution of offenders under the provisions of theIPC is violative of settled principles of law and contraryto the legislative intent of the M.V. Act. [Para 37 and37.1 of the impugned judgment]

x. The High Court directed the States of Assam, Nagaland,Meghalaya, Manipur, Tripura, Mizoram and ArunachalPradesh, and to issue appropriate directions to allsubordinate officers to ordinarily register cases againstoffenders of motor vehicle accidents only under theprovisions of the M.V. Act subject to the exceptionunder S. 304 IPC.

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A3. The present Special Leave Petitions have been filed by theStates of Tripura and Arunachal Pradesh before this Court, whereinvide Orders dated 12.05.2009 and 31.07.2009, the operation of theimpugned judgment was stayed.

This Court vide Order dated 26.04.2010 granted special leaveBto appeal, and directed that the stay of the impugned judgment wouldcontinue to operate during the pendency of the appeals.

4. Despite service of notice, none appeared for the Respondents.Since there is no contest to the adjudication on the merits of the case,we are not touching upon that part of the judgment.

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5. The M.V. Act is a beneficial legislation, the primary objectivebeing to provide a statutory scheme for compensation of victims of motorvehicle accidents; or, their family members who are rendered helplessand disadvantaged by the untimely death or injuries caused to a memberof the family, if the claim is found to be genuine.[1] The Act provides aDsummary procedure for claiming compensation for the loss sustainedin an accident, which is otherwise applicable to suits and otherproceedings while prosecuting a claim before a civil court.[2]

5.1 The M.V. Act repealed the Motor Vehicles Act, 1939. Theneed was felt to take into account changes in road transport technology,Epattern of passenger and freight movements, development of the roadnetwork in the country and particularly improved techniques in motorvehicle management.

In M.K. Kunhimohammed v. P.A. Ahmedkutty and Ors.[3], thisCourt made suggestions for raising the limit of compensation payableFin motor vehicle accidents wherein death and permanent disablementhad occurred, even in the event of there being no fault on the part ofthe person driving the offending vehicle, and also in hit and runaccidents. The said suggestions were taken into consideration by theLegislature and incorporated in the M.V. Act, 1988.

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1 The New India Assurance Co. Ltd. vs. C. Padma and Ors. (2003) 7 SCC 713;Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd. (2004) 5 SCC385

2 Vimla Devi and Ors. vs. National Insurance Company Limited and Ors. (2019) 2SCC 186

3 (1987) 4 SCC 284: AIR 1987 SC 2158

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5.2 Chapter XIII of the M.V. Act, 1988 deals with “Offences,Penalties and Procedure”. It deals with offences relating tocontraventions of the provisions of the M.V. Act, or any rule, regulationor notification made thereunder. It primarily deals with offences relatingto licenses, driving of vehicles by unauthorized persons, control of traffic,maintenance of motor vehicles, using a vehicle in an unsafe condition,or without registration or permit, driving beyond speed limits, drivingdangerously or driving by a drunken person, or by a person under theinfluence of drugs, etc.

5.3 The relevant provisions of the M.V. Act,1988 (as they stoodat the time of commission of the offence in question) which arenecessary to advert to are extracted herein below:

183. Driving at excessive speed, etc. – (1) Whoever drivesa motor vehicle in contravention of the speed limits referredto in section 112 shall be punishable with fine which mayextend to four hundred rupees, or, if having been previouslyconvicted of an offence under this sub-section is againconvicted of an offence under this sub-section, with finewhich may extend to one thousand rupees.

(2) Whoever causes any person who is employed by him oris subject to his control in driving to drive a motor vehiclein contravention of the speed limits referred to in section 112shall be punishable with fine which may extend to threehundred rupees, or, if having been previously convicted ofan offence under this sub-section, is again convicted of anoffence under this subsection, with fine which may extendto five hundred rupees.

(3) No person shall be convicted of an offence punishableunder subsection (1) solely on the evidence of one witnessto the effect that in the opinion of the witness such personwas driving at a speed which was unlawful, unless thatopinion is shown to be based on an estimate obtained by theuse of some mechanical device.

(4) The publication of a time table under which, or the givingof any direction that any journey or part of journey is to becompleted within a specified time shall, if in the opinion ofthe Court it is not practicable in the circumstances of the case A

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for that journey or part of a journey to be completed in thespecified time without contravening the speed limits referredto in section 112 be prima facie evidence that the personwho published the time table or gave the direction hascommitted an offence punishable under sub-section (2).

184. Driving dangerously — Whoever drives a motor vehicleat a speed or in a manner which is dangerous to the public,having regard to all the circumstances of the case includingthe nature, condition and use of the place where the vehicleis driven and the amount of traffic which actually is at thetime or which might reasonably be expected to be in theplace, shall be punishable for the first offence withimprisonment for a term which may extend to six months orwith fine which may extend to one thousand rupees, and forany second or subsequent offence if committed within threeyears of the commission of a previous similar offence withimprisonment for a term which may extend to two years, orwith fine which may extend to two thousand rupees, or withboth.

185. Driving by a drunken person or by a person underthe influence of drugs. - Whoever, while driving, orattempting to drive, a motor vehicle,—

(a) has, in his blood, alcohol exceeding 30 mg. per 100ml. of blood detected in a test by a breath analyser,or (b) is under the influence of a drug to such an extentas to be incapable of exercising proper control overthe vehicle.

shall be punishable for the first offence with imprisonmentfor a term which may extend to six months, or with fine whichmay extend to two thousand rupees, or with both; and for asecond or subsequent offence with imprisonment for termwhich may extend to two years, or with fine which may extendto three thousand rupees, or with both Explanation.— For the purposes of this section, the drug ordrugs specified by the Central Government in this behalf,by notification in the Official Gazette, shall be deemed to

render a person incapable of exercising proper control overa motor vehicle.

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187. Punishment for offences relating to accident. –Whoever fails to comply with the provisions of clause (c) ofsub-section (1) of section 132 or of section 133 or section134 shall be punishable with imprisonment for a term whichmay extend to three months, or with fine which may extendto five hundred rupees, or with both or, if having beenpreviously convicted of an offence under this section, he isagain convicted of an offence under this section, withimprisonment for a term which may extend to six months, orwith fine which may extend to one thousand rupees, or withboth.

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208. Summary disposal of cases - (1) The Court takingcognizance of any offence (other than an offence which theCentral Government may by rules specify in this behalf)under this Act,—

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(i) may, if the offence is an offence punishable withimprisonment under this Act; and

(ii) shall, in any other case, state upon the summons tobe served on the accused person that he—

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(a) may appear by pleader or in person; or (b) may, by a specified date prior to the hearing ofthe charge, plead guilty to the charge and remitto the Court, by money order, such sum (notFexceeding the maximum fine that may be imposedfor the offence) as the Court may specify, andthe plea of guilt indicated in the money ordercoupon itself:

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Provided that the Court shall, in the case of any of theoffences referred to in sub-section (2), state upon thesummons that the accused person, if he pleads guilty, shallso plead in the manner specified in clause (b) and shallforward his driving licence to the Court with his lettercontaining such plea.

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(2) Where the offence dealt with in accordance with sub-section (1)is an offence specified by the Central Governmentby rules for the purposes of this sub-section, the Court shall,if the accused person pleads guilty to the charge and forwardhis driving licence to the Court with the letter containing hisplea, make an endorsement of such conviction on his drivinglicence.

(3) Where an accused person pleads guilty and remits thesum specified and has complied with the provisions of sub-section (1), or as the case may be, sub-sections (1) and (2),no further proceedings in respect of the offence shall betaken against him nor shall he be liable, notwithstandinganything to the contrary contained in this Act, to bedisqualified for holding or obtaining a licence by reason ofhis having pleaded guilty.

209. Restriction on conviction. - No person prosecuted foran offence punishable under section 183 or section 184shall be convicted unless—

(a) he was warned at the time the offence was committedthat the question of prosecuting him would be takeninto consideration, or

(b) within fourteen days from the commission of theoffence, a notice specifying the nature of the offenceand the time and place where it is alleged to havebeen committed was served on or sent by registeredpost to him or the person registered as the owner ofthe vehicle at the time of the commission of theoffence, or

(c) within twenty-eight days of the commission of theoffence, a summons for the offence was served onhim:

Provided that nothing, in this section shall apply where theCourt is satisfied that—

(a) the failure to serve the notice or summons referredto in this sub-section was due to the fact that neitherthe name and address of the accused nor the name and address of the registered owner of the vehiclecould with reasonable diligence have beenascertained in time, or (b) such failure was brought about by the conduct ofthe accused.”

5.4 Section 183 provides for the offence of driving a vehicle atexcessive speed in contravention of the speed limits referred in Section112 of the M.V. Act; while Section 184 M.V. Act deals with the offenceof driving dangerously. In order to constitute an offence under Section184, the following ingredients are required to be proved:- (a) the accusedshould be driving a motor vehicle; (b) the vehicle should be driven at aspeed or in a manner which is dangerous to the public having regardto all the circumstances of a case, including the nature, condition anduse of the place where the vehicle is driven and the volume of trafficat the time of the accident or which might reasonably be expected tobe in the place.

Section 183 and 184 must be read with Section 209 of M.V. Act,which provides that a warning, notice or summons, is mandatorilyrequired to be given for an offence punishable under Section 183 or184.

5.5 Section 185 of the M.V. Act pertains to the offences ofdriving after consuming alcohol, or driving under the influence of drugs.Any person who while driving or attempting to drive, (a) has alcoholexceeding 30 mg. per 100 ml. present in his blood, detected by a breathanalyser; or (b) is under the influence of a drug to such an extent thathe is incapable of exercising proper control over the vehicle, shall beguilty of an offence under Section 185 of the M.V. Act.

5.6 Section 187 pertains to offences arising from accidents. Theoffence is for breach of duty and failure to comply with the provisionsof Section 132(1)(c) or Section 133 or Section 134 of the M.V. Act.

Clause (c) of Section 132 (1) was omitted by S. 40 of the MotorVehicles (Amendment) Act, 1994 (w.e.f. 14-11-1994); Section 133relates to the duty of the owner to give information regarding the nameand address of, and the licence held by, the driver or conductor, who isaccused of any offence under this Act on the demand of any policeofficer; while Section 134 relates to the duty of the driver in case ofan accident and injury to a person, to take all reasonable steps to secure A

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Amedical attention for the injured person, by conveying him to the nearestmedical practitioner or hospital, and providing necessary information tothe police and insurer of the vehicle about the accident.

5.7 The offences under Chapter XIII of the MV Act provide asummary procedure for disposal of cases, which are compoundable inBnature under Section 208 (3) of the M.V. Act. Section 208(3) providesthat if an accused pleads guilty and deposits the fine imposed, then “nofurther proceeding in respect of offence shall be taken against himnor shall he be liable, notwithstanding anything to the contrarycontained in this Act, to be disqualified for holding or obtainingCa licence by reason of his having pleaded guilty”.

5.8 The IPC, on the other hand, is punitive and deterrent in nature.The principal aim and object is to punish offenders for offencescommitted under the IPC. The relevant provisions of the IPC whichare necessary to advert to are extracted herein below:

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5. Certain laws not to be affected by this Act .- Nothing inthis Act shall affect the provisions of any Act for punishingmutiny and desertion of officers, soldiers, sailors or airmenin the service of the Government of India or the provisionsof any special or local law.

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279. Rash driving or riding on a public way.- Whoeverdrives any vehicle, or rides, on any public way in a mannerso rash or negligent as to endanger human life, or to belikely to cause hurt or injury to any other person, shall bepunished with imprisonment of either description for a termFwhich may extend to six months, or with fine which mayextend to one thousand rupees, or with both.

304. Punishment for culpable homicide not amounting tomurder.

Whoever commits culpable homicide not amounting tomurder, shall be punished with imprisonment for life, orimprisonment of either description for a term which mayextend to ten years, and shall also be liable to fine, if theact by which the death is caused is done with the intentionof causing death, or of causing such bodily injury as is likelyto cause death; G

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or with imprisonment of either description for a term whichmay extend to ten years, or with fine, or with both, if the actis done with the knowledge that it is likely to cause death,but without any intention to cause death, or to cause suchbodily injury as is likely to cause death.

304A. Causing death by negligence - Whoever causes thedeath of any person by doing any rash or negligent act notamounting to culpable homicide, shall be punished withimprisonment of either description for a term which mayextend to two years, or with fine, or with both.

337. Causing hurt by act endangering life or personalsafety of others. - Whoever causes hurt to any person bydoing any act so rashly or negligently as to endanger humanlife, or the personal safety of others, shall be punished withimprisonment of either description for a term which mayextend to six months, or with fine which may extend to fivehundred rupees, or with both.

338. Causing grievous hurt by act endangering life orpersonal safety of others. - Whoever causes grievous hurtto any person by doing any act so rashly or negligently asto endanger human life, or the personal safety of others,shall be punished with imprisonment of either description fora term which may extend to two years, or with fine whichmay extend to one thousand rupees, or with both.

5.9 Section 279 IPC falls under Chapter XIV – “Offencesaffecting Public Health, Safety, Convenience, Decency AndMorals”, and provides for offences relating to rash and negligent drivingwhich endanger human life.

Section 279 IPC makes rash driving, or riding on a public road,punishable if such rash driving or riding endangers human life, or is likelyto cause hurt or injury to any person. It is the rash or negligent mannerof driving or riding which endangers human life, or is likely to causehurt or injury to any person, which constitutes an offence under Section279 IPC.

5.10 Sections 304 Part II, 304A, 337 and 338 IPC fall underChapter XVI – “Offences Affecting the Human Body” which makes A

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Aprovision for offences relating to culpable homicide not amounting tomurder, causing death by negligence by doing any rash or negligent act,and causing hurt or grievous hurt, by endangering the life or personalsafety of others.

5.11 Where the rash or negligent driving results in hurt orBgrievous hurt being caused to any person, an offence under Section337 or 338 IPC is committed.

5.12 Where the rash or negligent driving, results in the death ofa person, without the knowledge that the said act will cause death,Section 304A IPC would be applicable. In other words, Section 304ACapplies to cases where there is no intention to cause death, and noknowledge that the act done in all probability will cause death.Negligence and rashness are essential elements of Section 304A.[4]

The three ingredients of Section 304-A, which are required toDbe proved are: (1) the death of a human being; (2) the accused causedthe death; and (3) the death was caused by the doing of a rash ornegligent act, though it did not amount to culpable homicide of eitherdescription.[5]

The requirement of culpable rashness under S.304A IPC is moreEdrastic than negligence sufficient under the law of tort to create liability.[6]Criminal or culpable rashness means hazarding a dangerous or wantonact with the knowledge that it is dangerous or wanton, and the furtherknowledge that it may cause injury, but done without any intention tocause injury or knowledge that the act would probably cause.[7]

F5.13 When a person drives a vehicle so recklessly, rashly ornegligently that it causes the death of a person, and of which he hadknowledge as a reasonable man, that such act was dangerous enoughto cause death, he may be attributed with the knowledge of theconsequence, and may held liable for culpable homicide not amountingto murder, which is punishable under Section 304 Part II IPC.G

4 Naresh Giri v. State of M.P. (2008) 1 SCC 791; Rathnashalvan v. State of Karnataka,(2007) 3 SCC 474 : (2007) 2 SCC (Cri) 84

5 Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648 : (2012) 1 SCC

(Civ) 848 : (2012) 1 SCC (Cri) 953

6 N.K.V Bros (P) Ltd. v. M. Karumai Ammal & Ors. (1980) 3 SCC 457

H7 Rathnashalvan v. State of Karnataka, (2007) 3 SCC 474 : (2007) 2 SCC (Cri) 84

5.14 Sections 279, 304-A, 337 and 338 IPC may be invoked onlyif the act of the accused is a negligent or rash act. It is manifest fromthe scheme of Sections 279, 304-A, 336, 337 and 338 IPC that theseoffences are punishable because of the inherent danger of the actsspecified therein, irrespective of the knowledge or intention of theoffender.

With respect to Section 304 Part II IPC, the prosecution has toprove that the death of the person was caused by the act of the accused,and that he had knowledge that such act was likely to cause death.[8]To constitute an offence under this Section, the knowledge of theoffender as required under Section 300 IPC is to be proved andestablished.

6. In our view there is no conflict between the provisions of theIPC and the MV Act. Both the statutes operate in entirely differentspheres. The offences provided under both the statutes are separateand distinct from each other. The penal consequences provided underboth the statutes are also independent and distinct from each other. Theingredients of offences under the both statutes, as discussed earlier, aredifferent, and an offender can be tried and punished independently underboth statutes. The principle that the special law should prevail over thegeneral law, has no application in cases of prosecution of offenders inroad accidents under the IPC and M.V. Act.

7. It is pertinent to mention that there is no provision under theM.V. Act which separately deals with offences causing death, orgrievous hurt, or hurt by a motor vehicle in cases of motor vehicleaccidents. Chapter XIII of the M.V. Act is silent about the act of rashand negligent driving resulting in death, or hurt, or grievous hurt, topersons nor does it prescribe any separate punishment for the same;whereas Sections 279, 304 Part II, 304A, 337 and 338 of the IPC havebeen specifically framed to deal with such offences.

8. Section 26 of the General Clauses Act, 1897 provides, “Wherean act or omission constitutes an offence under two or more enactments,then the offender shall be liable to be prosecuted and punished undereither or any of those enactments, but shall not be liable to be punishedtwice for the same offence.”

8 Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648 : (2012) 1 SCC(Civ) 848 : (2012) 1 SCC (Cri) 953

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It is well settled that an act or an omission can constitute anoffence under the IPC and at the same time, be an offence under anyother law. The finding of the High Court that the prosecution ofoffenders under two statutes i.e. the M.V. Act and the IPC, isunsustainable and contrary to law, is therefore, set aside.

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A similar issue arose in the case of T.S. Baliah v. T.S.BRangachari [9], wherein the appellant was prosecuted both under Section177 of the IPC, and Section 52 of the Income Tax Act, 1922. This Courtheld as follows:

“6. We proceed to consider the next question arising in thiscase viz. whether the appellant can be prosecuted both underCSection 177 of the Indian Penal Code and Section 52 of the1922 Act [Income Tax Act, 1922] at the same time. It wasargued on behalf of the appellant that in view of theprovisions of Section 26 of the General clauses Act (Act 10of 1897) the appellant can be prosecuted either underDSection 52 of the 1922 Act or under Section 177 of theIndian Penal Code and not under both the sections at thesame time. We are unable to accept this argument as correct.Section 26 of the General clauses Act states:

“26. Provision as to offences punishable under two or moreenactments.— Where an act or omission constitutes anEoffence under two or more enactments, then the offendershall be liable to be prosecuted and punished under eitheror any of those enactments, but shall not be liable to bepunished twice for the same offence.”

A plain reading of the section shows that there is no bar toFthe trial or conviction of the offender under both enactmentsbut there is only a bar to the punishment of the offender twicefor the same offence. In other words, the section providesthat where an act or omission constitutes an offence undertwo enactments, the offender may be prosecuted andpunished under either or both the enactments but shall notGbe liable to be punished twice for the same offence. Weaccordingly reject the argument of the appellant on thisaspect of the case.”

H9 (1969) 3 SCR 65 : AIR 1969 SC 701 : (1969) 72 ITR 787

STATE OF ARUNACHAL PRADESH v.RAMCHANDRA RABIDAS@ RATAN RABIDAS & ANR. [INDU MALHOTRA, J.]

Similarly, in State of Maharashtra v. Sayyed Hassan[10], theaccused was prosecuted under Sections 26 and 30 of the Food andSafety Standards Act, 2006 as well as Sections 188, 272, 273 and 328of the IPC for transportation and sale of prohibited gutka/pan masala.The High Court held that Section 55 of the Food and Safety StandardsAct, 2006 being a specific provision made in a special enactment,Section 188 of the IPC was inapplicable.

The Supreme Court remanded the matter to the High Court, andheld that :

“8. There is no bar to a trial or conviction of an offenderunder two different enactments, but the bar is only to thepunishment of the offender twice for the offence. Where anact or an omission constitutes an offence under twoenactments, the offender may be prosecuted and punishedunder either or both enactments but shall not be liable tobe punished twice for the same offence. The same set of facts,in conceivable cases, can constitute offences under twodifferent laws. An act or an omission can amount to andconstitute an offence under the IPC and at the same time,an offence under any other law. The High Court ought tohave taken note of Section 26 of the General Clauses Act,1897 which reads as follows:

“Provisions as to offences punishable under two or moreenactments -Where an act or omission constitutes an offenceunder two or more enactments, then the offender shall beliable to be prosecuted and punished under either or any ofthose enactments, but shall not be liable to be punished twicefor the same offence.”

9. In Hat Singh’s case this Court discussed the doctrine ofdouble jeopardy and Section 26 of the General Clauses Actto observe that prosecution under two different Acts ispermissible if the ingredients of the provisions are satisfiedon the same facts. While considering a dispute about theprosecution of the Respondent therein for offences under theMines and Minerals (Development and Regulation) Act 1957and Indian Penal Code, this Court in State (NCT of Delhi)

10 Criminal Appeal No. 1195-1207 of 2018, Decided on September 20, 2018

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Av. Sanjay held that there is no bar in prosecuting personsunder the Penal Code where the offences committed bypersons are penal and cognizable offences. A perusal of theprovisions of the FSS Act would make it clear that there isno bar for prosecution under the IPC merely because theprovisions in the FSS Act prescribe penalties. We, therefore,Bset aside the finding of the High Court on the first point.”

9. The legislative intent of the MV Act, and in particular ChapterXIII of the MV Act, was not to override or supersede the provisionsof the IPC in so far as convictions of offenders in motor vehicleCaccidents are concerned. Offences under Chapter XIII of the MV Act,cannot abrogate the applicability of the provisions under Sections 297,304, 304A, 337 and 338 of the IPC. The offences do not overlap, andtherefore, the maxim of “generalia specialibus nonderogant” isinapplicable, and could not have been invoked. The offences prescribedDunder the IPC are independent of the offences prescribed under theM.V. Act. It cannot be said that prosecution of road traffic/motorvehicle offenders under the IPC would offend Section 5 of the IPC,as held by the High Court, in so far as punishment for offences underthe M.V. Act is concerned.

10. Considering the matter from a different perspective, offencesEunder Chapter XIII of the MV Act are compoundable in nature in viewof Section 208(3) of the MV Act, whereas offences under Section 279,304 Part II and 304A IPC are not.

If the IPC gives way to the MV Act, and the provisions of CrPCsuccumb to the provisions of the MV Act as held by the High Court,Fthen even cases of culpable homicide not amounting to murder, causingdeath, or grievous hurt, or simple hurt by rash and negligent driving,would become compoundable. Such an interpretation would have theconsequence of letting an offender get away with a fine by pleadingguilty, without having to face any prosecution for the offence committed.

G11. This Court has time and again emphasised on the need tostrictly punish offenders responsible for causing motor vehicle accidents.With rapidly increasing motorisation, India is facing an increasing burdenof road traffic injuries and fatalities. The financial loss, emotional andsocial trauma caused to a family on losing a bread winner, or any othermember of the family, or incapacitation of the victim cannot beHquantified.

12. The principle of proportionality between the crime andpunishment has to be borne in mind. The principle of just punishmentis the bedrock of sentencing in respect of a criminal offence.[11] Themaximum imprisonment for a first time offence under Chapter XIII ofthe M.V. Act, is up to only six months; whereas the maximumimprisonment for a first time offence under the IPC in relation to roadtraffic offences can go upto 10 years under Section 304 Part II of theIPC. The sentence imposed by the courts should be commensurate withthe seriousness of the offence, and should have a deterring effect onwrong-doers.[12] The punishment of offenders of motor vehicle accidentsunder the IPC is stricter and proportionate to the offence committed,as compared with the M.V. Act.

13. We thus hold that a prosecution, if otherwise maintainable,would lie both under the IPC and the MV Act, since both the statutesoperate with full vigour, in their own independent spheres. Evenassuming that some of the provisions of the MV Act and IPC areoverlapping, it cannot be said that the offences under both the statutesare incompatible.

14. The High Court has given a contradictory finding by holdingon the one hand that the provisions of the Cr.P.C must succumb to theprovisions of the M.V. Act, as executive authorities cannot take awaya beneficial provision under a special law enacted by Parliament (para14 of the impugned judgment), while on the other hand, it has opinedthat the M.V. Act is not a complete code in itself, and there is nocomplete bar to investigate road traffic offences under the provisionsof Cr.P.C. (para 23 of the impugned judgment).

15. In our considered view the position of law is well-settled. ThisCourt has consistently held that the M.V. Act,1988 is a complete codein itself in so far as motor vehicles are concerned.[13] However, there isno bar under the M.V. Act or otherwise, to try and prosecute offencesunder the IPC for an offence relating to motor vehicle accidents. Onthis ground as well, the impugned judgment is liable to be set aside.

11 Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545 : (2013) 3 SCC (Cri) 608

12 State of Karnataka v. Sharanappa Basanagouda Aregoudar (2002) 3 SCC 738

13 National Insurance Co. Ltd. v. Annappa Irappa Nesaria, (2008) 3 SCC 464 : (2008)2 SCC (Cri) 99 : (2008) 1 SCC (Civ) 945; Gottumukkala Appala Narasimha Raju v.National Insurance Co. Ltd., (2007) 13 SCC 446 : (2008) 2 SCC (L&S) 662

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A16. The object behind punishing persons found guilty of causingmotor vehicle accidents has been succinctly stated by this Court inDalbir Singh vs. State of Haryana[14] in the following words:

“11. Courts must bear in mind that when any plea is madebased on Section 4 of the PO Act for application to aBconvicted person under Section 304-A IPC, that roadaccidents have proliferated to an alarming extent and thetoll is galloping day by day in India, and that no solution isin sight nor suggested by any quarter to bring them down.When this Court lamented two decades ago that “more peopleCdie of road accidents than by most diseases, so much so the”Indian highways are among the top killers of the country,the saturation of accidents toll was not even half of what itis today. So V.R. Krishna Iyer, J., has suggested in the saiddecision [Rattan Singh v. State of Punjab, (1979) 4 SCC 719: 1980 SCC (Cri) 17] thus: (SCC p. 720, para 3)D

“Rashness and negligence are relative concepts, notabsolute abstractions. In our current conditions, the lawunder Section 304-A IPC and under the rubric ofnegligence, must have due regard to the fatal frequencyof rash driving of heavy duty vehicles and of speedingEmenaces.”

12. In State of Karnataka v. Krishna [(1987) 1 SCC 538 :1987 SCC (Cri) 198] this Court did not allow a sentence offine, imposed on a driver who was convicted under Section304-A IPC to remain in force although the High Court tooFhad confirmed the said sentence when an accused wasconvicted of the offence of driving a bus callously andcausing the death of a human being. In that case this Courtenhanced the sentence to rigorous imprisonment for sixmonths besides imposing a fine.

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13. Bearing in mind the galloping trend in road accidentsin India and the devastating consequences visiting the victimsand their families, criminal courts cannot treat the nature ofthe offence under Section 304-A IPC as attracting the

benevolent provisions of Section 4 of the PO Act. Whileconsidering the quantum of sentence to be imposed for theoffence of causing death by rash or negligent driving ofautomobiles, one of the prime considerations should bedeterrence. A professional driver pedals the accelerator ofthe automobile almost throughout his working hours. He mustconstantly inform himself that he cannot afford to have asingle moment of laxity or inattentiveness when his leg is onthe pedal of a vehicle in locomotion. He cannot and shouldnot take a chance thinking that a rash driving need notnecessarily cause any accident; or even if any accidentoccurs it need not necessarily result in the death of anyhuman being; or even if such death ensues he might not beconvicted of the offence; and lastly, that even if he isconvicted he would be dealt with leniently by the court. Hemust always keep in his mind the fear psyche that if he isconvicted of the offence for causing death of a human beingdue to his callous driving of the vehicle he cannot escapefrom a jail sentence. This is the role which the courts canplay, particularly at the level of trial courts, for lesseningthe high rate of motor accidents due to callous driving ofautomobiles. “

In Guru Basavaraj v. State of Karnataka[15], the Court opinedthat there is a constant concern of the Court on imposition of adequatesentence in respect of commission of offences in cases of motor vehicleaccidents. In that case, the appellant was found guilty for the offencespunishable under Sections 337, 338, 279 and 304-A IPC and sentencedto undergo simple imprisonment for six months along with fine. TheCourt held that:

“32. We may note with profit that an appropriate punishment-works as an eyeopener for the persons who are not carefulwhile driving vehicles on the road and exhibit a carelessattitude possibly harbouring the notion that they would beshown indulgence or lives of others are like ‘flies to thewanton boys’. They totally forget that the lives of many are A

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Ain their hands, and the sublimity of safety of a human beingis given an indecent burial by their rash and negligent act.33. There can hardly be any cavil that there has to be aproportion between the crime and the punishment.It is theduty of the court to see that appropriate sentence is imposedBregard being had to the commission of the crime and itsimpact on the social order. The cry of the collective for justicewhich includes adequate punishment cannot be lightly”ignored.

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17. In view of the above discussion, we set aside the directionsissued by the Gauhati High Court to the States of Assam, Nagaland,Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh to issueappropriate instructions to their subordinate officers to prosecuteoffenders in motor vehicle accidents only under the provisions of theDMotor Vehicles Act,1988 and not the IPC.

18. The Criminals Appeals are allowed in the aforesaid terms.The interim order passed on 26.04.2010 is made absolute. All pendingApplications, if any, are accordingly disposed of.

Ordered accordingly.

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Ankit Gyan

Appeals allowed.

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