Person Driving Vehicle Rashly With 'Knowledge' That It Would Cause Death By Accident Can Be Prosecuted U/S 304 (II) IPC: Calcutta High Court

The Calcutta High Court on Wednesday declined to quash proceedings under Section 304 Part II of the Indian Penal Code (IPC) in a motor accident case finding that the case was still at its investigation stage and that it was likely that the petitioner had "knowledge" that his reckless driving would lead to a fatal accident. 

Justice Bibek Chaudhuri pointed out that it was found from the initial police report that the petitioner was driving the vehicle at utmost high speed despite having knowledge that such reckless driving may cause death of any by-stander, himself and his fellow passengers.

"Therefore at this stage of investigation, I am not inclined to quash the registration of case against the petitioner under Section 304 Part-II of the IPC. Accordingly the instant criminal revision being devoid of any material is dismissed on contest."

The Court was adjudicating upon a case where a complaint had been lodged against the petitioner for allegedly causing a car accident by driving at a very high speed and in a dangerous manner, resulting in the death of one of his co-passengers. The complaint was lodged by the father of the deceased and the police thereby registered a case against the petitioner under Section 279/304 Part-II/308/427 of IPC. 

Consequently, the petitioner moved the Court praying to quash the proceedings pending before the Chief Judicial Magistrate.

Senior Advocate Sekhar Kumar Basu appearing on behalf of the petitioner urged that the FIR case ought to have been registered under Section 304A of the IPC. He elucidated that prior to the lodging of the complaint, a GD entry was lodged on the same accident and a police officer had conducted an inquiry on the same. The senior counsel invited the Court to consider this inquiry report and submitted that materials on record never made out a case of wilful and deliberate act on the part of the petitioner to show even prima facie that he caused the death with knowledge that it was likely to cause death.

He argued that this is absolutely a case of rash and negligent driving causing the death of the daughter of the de facto complainant and it should have been registered under Section 304A. He referred to a Supreme Court decision in State of Punjab vs. Balwinder Singh & Ors. [2012 (2) SCC 182] to reinforce his argument. 

It was further contended that Section 304 Part-II cannot be attributed to the accused and thus registration of the case is bad in law and investigational proceeding in so far as it relates to Section 304 Part-II should be quashed. 

On the other hand, Senior Advocate Sudipto Moitra appeared on behalf of the de facto complainant and submitted that there is a clear distinction between the applicability of Sections 304 and 304A as laid down in Alister Anthony Pareira vs State of Maharashtra [2012 (2) SCC 648]. He added that the spot inquiry revealed that the accident and the consequent death occurred due to the petitioner's rash and negligent driving with conscious knowledge that it could lead to a fatal accident. Thus, it was urged that it would not be proper to quash investigational process under Section 304 Part-II.

It was also pointed out that the petitioner approached the Court for quashing of the case barely two days after the incident without giving any opportunity to the investigating officer to consider the veracity of the case of the defacto complainant. the senior counsel contended that the case should not be quashed at this nubile stage of investigation and relied on Supreme Court decisions to buttress his argument. 

The Court noted that a plain reading of Section 304 makes it clear that it is in two parts. The first part applies where the accused causes death to the victim with intention to cause such bodily injury as is likely to cause death. Part II on the other hand comes into play when death is caused by doing an act under knowledge that it is likely to cause death, but without any intention to cause death or such bodily injury as is likely to cause death.

The Single Judge also pondered over the observation of the makers of the Code regarding the importance of intention or knowledge in this offence and concluded that before Section 304 Part-II can be invoked, it should be proved that the offender had knowledge that the bodily injury was likely to cause death.

However, Section 304A was inserted by the IPC (Amendment) Act and deals with the homicidal death by the rash or negligent act. It does not create a new offence and covers those cases where death has been caused without intention or knowledge. It applies to act which are rash or negligent and are directly the cause of death of another person.

The Court thus concluded that there is a distinction between Section 304 and Section 304A. Section 304A carves out case where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300.

"In other words Section 304A excludes all the ingredients of Section 299 as also of Section 300. Where intention or knowledge is "motivating force" of the act complained of, Section 304A will have to make room for the graver or most serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The Section has application to those case where there is neither intention to cause death or knowledge that the act in all probability will cause death."

The petitioner argued that by no stretch of imagination can it be said that while driving the car he had the knowledge that it would cause death by accident. On the contrary,  the defacto complainant argued that the investigation has not reached the stage where it can be gathered whether the petitioner had the knowledge that his driving would likely to cause accident resulting in death of a fellow passenger.

The Judge recalled that there cannot be any direct evidence of knowledge of the offender and it can be only ascertained through circumstantial evidence. Applying the test of prudent person under the same facts and circumstances, it was found that a "prudent person would not drive a vehicle at a very high speed and in a dangerous manner which he cannot control because they have the knowledge that there is obvious chance of fatal accident if a car is driven at very high speed and in dangerous manner."

As such, the Court dismissed the plea and refused to quash the case against the the petitioner. 

Case Title: Arnav Choudhury v. State of West Bengal & Anr.

Citation: 2022 LiveLaw (Cal) 365  

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