By Hemant Batra | Policy & Business Lawyer | Kaden Boriss | Goeman Bind HTO
There is no dearth now of progressive and profound judgements by the Indian courts of law especially High Courts. There was a shallow time in judicial verdicts by the High Courts and subordinate courts for nearly a decade in the past but the times have changed for the good. From 1950s to 1990s, Indian legal spectrum witnessed formidable and intelligent judgments by all the courts. Between 2000 to 2015, the quality of intellect and research in the judgements passed depicted frivolity. However, today one could see not only well researched, analyzed judicial orders but also giving due weight to logic.
In the series of opinionated articles, which have been assigned to me, this is the first in the row. I discuss here thought through and sound judgment passed by the High Court of Karnataka, Dharwad Bench on 11 June 2018. The decision was delivered by the Hon’ble Dr. Justice H. B. Prabhakara Sastry in a case titled Moulasab S/o. Hasansab Karanachi Versus The State of Karnataka.
The Magistrate’s Court convicted the petitioner for the offenses punishable under Sections 279, 304 A of IPC and under Section 134 along with Section 184 of Motor Vehicles Act (M.V. Act). Primarily crimes causing the death of any person by doing any rash or negligent act not amounting to culpable homicide; and dealing with rash or negligent as to endanger human life.
The case of the prosecution was that the accused, the lorry driver drove his lorry in a rash, and negligent manner, thereby endangering human life and hit a cyclist from his rear side, due to which accident the said cyclist sustained injuries and ultimately succumbed to it.
The accused fled the place without informing the police. Since the accused did not plead guilty, and hence was subjected to a trial. The Trial Court held the accused guilty for the offense punishable under Sections 279, 304 A IPC and under Section 134 read with Section 187 of the M.V.Act. The accused was sentenced to undergo simple imprisonment for six months and to pay a fine of Rupees 2,000/- and in default of payment of fine, to undergo simple imprisonment for two months for the offense punishable under Section 304 A of IPC. No separate sentence was ordered for the crime punishable under Section 279 of IPC.
An appeal was preferred against the Trial Court’s order of conviction. The appeal got to be dismissed by the Sessions Court thereby confirming the Judgment of conviction and order on the sentence passed by the Trial Court. The Karnataka High Court was approached against the said Judgment of the Sessions Court by way of a Criminal Revision Petition.
The fundamental or the core argument of the convict or petitioner was that the place of accident was a traffic hit area and there were speed breakers as well as the traffic signals thereby making impossible for the vehicle to run in high speed in that area. Interestingly, the facts contained in the argument were proved correct.
The Karnataka High Court observed: “By the word ‘rash driving’ it cannot be automatically imagined that the vehicle alleged to be rash in its driving should also necessarily be coupled with high speed.”
While reaching the above conclusion, the High Court referred to the Halsbury’s laws of England (4th edition) vol. 34, para 1 (p.3), according to which:
‘1. General Principles of the law of negligence –
Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent, although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two.’
Even the Supreme Court of India in Mohd. Aynuddin v. State of A.P., had observed that “A rash act is primarily an overhasty 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 consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.”
Hence, the High Court opined that “to constitute a rash and negligent driving it is not necessary that the offending vehicle must have always exceeded its speed limit or over speeded. Failure to exercise the required care and caution expected to be taken by a driver in a circumstance, in which he was driving would constitute a negligent driving. An act of driving done without due care and caution though not coupled with high speed still results into a rash driving. Therefore, in the instant case merely because there was said to be few speed breakers on the road and traffic signal near the spot of the accident, by itself cannot be deduced that there was no rash and negligent driving on the part of the driver of the offending vehicle.”
The High Court rightly dismissed the Criminal Revision Petition as devoid of merits and upheld the conviction and sentence.
The findings have given a required clarity and firmness in dealing with cases of rash and negligent driving, which are on the rampant rise in India.