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jpc/-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 124 OF 2011
Adwait Surendra Aatre .. Applicant
Versus
The State of Maharashtra
and others ig .. Respondents
Mr.Parvej Menon i/by Majeed Menon & Associate for the applicant
Mrs. M. R.Tidke, APP for the State
Mr. Ravi Mishra for Respondent No.2
CORAM : N. D. DESHPANDE, J.
DATE : 7 April, 2011
th
ORAL ORDER:
1. Heard both sides.
2. By consent of the parties taken up for final hearing at the
stage of admission.
3. The present application is filed under Section 482 of the
Criminal Procedure Code, 1973, invoking inherent powers of this
Court in the matter of criminal justice, for quashing of the F.I.R.
being C.R. No. 107 of 2010 registered by the Kherwadi Police
Station, of offences u/s 279, 338 read with 134 (a), (b) of the
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Motor Vehicles Act against the applicant, on a complaint of one Mr.
Nitin Satish Kale.
4. The applicant is a student aged 23 years, having valid
driving licence and it is alleged that while he was driving a motor
vehicle (Mahindra Scorpio), it gave a dash to the complainant on
a road and thereby caused some minor injuries to his leg and
shoulder. The matter was therefore, reported to Kherwadi Police
station, which was subsequently inquired and investigated.
Concerned Investigating Officer of the Kherwadi Police station is
present. He informed that investigation is complete and charge
sheet is ready for filing.
5. It is admitted that the offences, as per the investigation and
the charge-sheet, are stated to be mainly u/s 279 and 338 of
I.P.C. Learned counsel for the applicant- accused relied on the
affidavit filed in his favour along with this application for
compounding of the offences registered against the applicant as
mentioned above. Learned counsel for the complainant also agreed
for compounding of the offence when asked. However, it has been
stated that such compounding is not possible at this stage because
the charge-sheet is yet to be filed and one of the offences being u/s
279 of I.P.C., is non-compoundable in law although it is punishable
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up to six months imprisonment only, besides it is bailable and
triable by the magistrate. Another major offence u/s 338 of IPC is
no doubt compoundable, bailable and triable by any magistrate and
punishable upto two years imprisonment. It can be compounded
by the complainant who is injured (victim) with the permission of the
Court. 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 I.P.C which is
stated to be non-compoundable.
6. Relevant Sections 279 and Section 338 of I.P.C. read thus:
“279. Rash driving or riding on a public way._ whoever
drives any vehicle, or rides, on any public way in a manner so
rash or negligent as to endanger human life, or to be likely to
cause hurt or injury to any other person, shall be punishedwith imprisonment of either description for a term which may
extend to six months, or with fine which may extend to one
thousand rupees or with both:
Classification of Offence : The offence under this section is
cognizable, bailable, non compoundable and triable by any
magistrate.
338. Causing grievous hurt by act endangering life of
personal safety or others._ Whoever causes grievous hurt
to any person by doing any act so rashly or negligently as to::: Downloaded on – 09/06/2013 17:10:10 :::
4 apl124-11endanger human life, or the personal safety of others, shall
be punished with imprisonment of either description for a term
which may extend to two years or with fine which may extendto one thousand rupees, or with both:
Classification of Offence._ The offence under this section is
cognizable, bailable, compoundable with permission of thecourt before which any prosecution of such offence is
pending and triable by any magistrate.
7. After minute reading of both these sections, it is seen that
the alleged act of rash and negligent driving, endangering human
life, is required to be proved as necessary ingredient to constitute
offence u/s 279 I.P.C. and by allegedly doing any act rashly or
negligently as to endangering the human life are also the same
ingredients to constitute the offence u/s 338 I.P.C. Therefore, such
ingredients which are common, cannot be separately dealt with. The
requirement of offence u/s 338 is all that is covered in section 279
of IPC. As specifically mentioned in the Code, when the offence u/s
338 is compoundable, there cannot be any impediment or bar to
hold that the alleged offence u/s 279 of I.P.C. read with 338 of 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 of I.P.C. in the present case. In short, the offence u/s
338 I.P.C. is compoundable with permission of the Court, which,
amounts to acquittal. After such compounding with the consent of
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the aggrieved party-injured complainant, the accused cannot be
prosecuted or tried for the same act which are complained of by
different title or head u/s 279 of I.P.C. Though it may not be a
second trial, but the accused, who is once acquitted from the
charge u/s 338 IPC upon compounding of the charge based on the
same evidence, would be vexed, if he is directed to under go further
trial u/s 279 for lesser punishment. Thus, by the present application,
the applicant has made out a case for compounding of offence.
However, the present application is filed by the accused alone and
not by the complainant who is the complainant since aggrieved
person in a complaint case, and therefore he alone has a right to
compounding. Merely because the complainant is made as party-
respondent no.2 and having filed his affidavit in support of the
application would not be enough. The matter needs to be verified by
the court for compounding, which is like a compromise for desired
order or judgment of acquittal by the Court so as to put an end to the
proceedings. Both the parties are, therefore, directed to appear
before the trial Court because this Court would not record evidence
or verify compromises. It is the trial court who is competent to
record evidence and verify the compromise for compounding, if
satisfied. After compounding of the offence u/s 338 of I.P.C. which
amounts to acquittal of accused in law, in my opinion in the present
case, such charge sheet u/s 279 of I.P.C alone would sustain in law
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for further continuation of proceedings or trial on the basis of same
evidence for section 338 of I.P.C.
8. Since both the parties have submitted that the charge
sheet is ready and it is going to be filed in the next week, I therefore,
direct the parties to appear before the learned Magistrate’s Court.
Liberty is given to both the parties to file a joint purshis/application
for compounding of the offence u/s 338 IPC. So far as Section 279
IPC is concerned, that would give rise to some difficulty despite the
observation made by this Court and the parties would be harassed
and troubled. In order to avoid that, I am satisfied that once the
offence u/s 338 IPC is compounded, nothing survives for trying the
offence u/s 279 IPC. The FIR or Charge sheet for additional section
279 would be meaningless when the cognizace is taken u/s 338 of
IPC. The proceedings for the offence u/s 279 IPC, therefore
deserves to be quashed and set aside.
9. In that view of the matter, the application is partly allowed.
10. The FIR, the charge sheet and the proceedings u/s 279 is
liable to be quashed and accordingly it is quashed and set aside to
that extent.
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11. The parties are directed to appear before the learned
Magistrate in the next week. The parties shall be at liberty to file an
application for compounding of the offence u/s 338 I.P.C. and the
same shall be verified and decided by the trial Court in the light of
the observations made herein above.
12. The application is accordingly disposed of.
ig ( N. D. DESHPANDE, J. )
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