Passenger May Be Prosecuted For Motor Accident Caused By Drunk Driver: Madras High Court

The Madras High Court recently held that a co-passenger in a vehicle involved in motor accident caused by an inebriated driver can be prosecuted for instigation and culpable homicide not amounting to murder under Section 304 (ii) of IPC. Justice Bharatha Chakravarthy held that the co-passengers could not escape liability by merely claiming that they were merely sitting in the passenger seat and were not behind the wheels. The court thus rejected a doctor's plea seeking review of a lower court order rejecting the prayer to discharge her from the case. "There is no merits in this revision and finding that there is an equal criminal liability on all these three accused persons, who set out on the journey at the hard hours, in the manner mentioned above, just because, one person was on the wheel and other persons were sitting on the passenger seats, does not in any manner make difference and it will only make a difference of Section 304(ii) of IPC and Section 304(ii) read with Section 109 of IPC. Therefore, the Criminal Revision is dismissed." In the present case, the prosecution case against the petitioner was that she, along with two others was travelling in a car in wee hours when the vehicle ran berserk and dashed against three pedestrians, killing them instantly and gravely injuring few others. The petitioner's brother, who was driving the car (first accused) was charged for offence under Section 304(ii) (3 counts) while the petitioner and the other co-passenger where charged for the offence under Section 304(ii) (3 counts) read with 109 of the Indian Penal Code. The petitioner challenged the criminal proceedings on two grounds. Firstly, at the time of accident she was not in an inebriated state and the same was confirmed through medical examination. Secondly, there was no evidence to show that the petitioner had knowledge about the inebriated state of the driver. Reliance was placed on the decision of the Supreme Court in Kulwant Singh @ Kulbansh Singh v. State of Bihar (2007) to argue that the negative act, that is, not stopping the accused from driving in an inebriated condition cannot come within the definition of abetment under Section 109 of the Indian Penal code and therefore, the petitioner was entitled for discharge. The Court however noted that the petitioner had committed a "positive act" in opening the door and sitting in the front seat of the car and thus participating in the journey. Whether this positive act would amount to instigating the driver to drive in an inebriated state would depend on the facts of each case. In the present case, the parties were going on a night stroll which would amount to instigation. In this case, the time was 3.30 AM., and the place of occurrence is near the beach and thus, it is clear that if any person joins the person, in an inebriated condition for a late night after the party stroll in the Car to the beach that by itself is a positive act of instigating the person to drive the vehicle in an inebriated condition and consequences that follow on account of the inebriated driving, will also be fastened on the abetter under Section 111 and 113 of the Indian Penal Code. With respect to the contention that there was no evidence to show that the petitioner had knowledge of the inebriated state of the driver, the court held the same to be untenable. There was grave suspicion that the petitioner had knowledge. Further, at this stage, when the petitioner was seeking discharge, she could not raise such claims, it said. Thus, the court rejected the petitioner's plea and upheld the order dismissing her discharge. Case Title: Dr. Lakshmi v. State Case No: Crl RC No 410 of 2022 Citation: 2022 LiveLaw (Mad) 335 Counsel for the Petitioner: Mr.R.John Sathyan Counsel for the Respondent: Mr.S.Vinoth Kumar Government Advocate (Criminal sideClick here to read/download the judgment

Passenger May Be Prosecuted For Motor Accident Caused By Drunk Driver: Madras High Court

Upasana Sajeev

"Positive act" of travelling in a car with an inebriated driver amounts to instigation of offence.

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