1. By this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), the applicant has prayed to quash the first information report registered vide Babra Police Station C.
R. No. I – 65/2009 qua the present applicant.
2. The facts of the present case are that the respondent No.2 – first informant lodged the above referred first information report on 13.6.2009 alleging that on the previous day, that is, on 12.6.2009 he and his family were going from Una towards their native place. In all twenty persons, had alighted at Amreli at about 2 o'clock at night. There from the school road a truck going towards their native place, whose number he does not remember, was filled with cement and was going to Kutch. Since they wanted to go to Samakhayali, he and his family members along with their luggage were sitting on the cement and had fixed the fare at Rs.800/- with the driver. Out of the twenty persons, two persons had to alight at Rajkot and the rest at Samakhayali. The truck departed towards Samakhayali and on the way from Amreli to Babra upon reaching near Bhila village, the truck driver suddenly lost control over the truck and the truck was pulled towards a pit and had overturned and they were all thrown away. Some of them were buried under cement bags. Five of the persons named therein were thrown out and twelve others including his brother Bachu, his brother’s wife, his son Bhiku, his daughters Bhavana and Huki, his brother’s daughter Arti were buried under the cement bags. He, therefore, called 108 ambulance by phone and, he and his wife and three others were taken to Amreli Government Hospital where he came to know that the members of his family as well as his relatives, in all twelve persons had died and were taken to the Government Hospital at Babra, where he had been taken for identification. The incident had taken place between 4.00 to 4.30 hours in the morning and when he went along with the officer, he had found that the number of the truck was GT-J-12-X-2282. The truck driver had driven the truck under his control in a rash and negligent manner, thereby causing the same to be overturned and he, his wife and others had sustained injuries of different degrees and twelve other persons had expired.
3. In the said first information report, the only person arraigned as an accused is the driver of the above referred truck. Subsequently, the applicant herein came to be arrested as he was the owner of the truck in question. Thus, the applicant has been arraigned as an accused by virtue of his being the owner of the truck in question.
4. Mr. Ashish Dagli, learned advocate for the applicant submitted that insofar as the applicant is concerned, he is only the owner of the truck and at best, may be made vicariously liable under the provisions of the Motor Vehicles Act. However, insofar as any criminal act of the driver is concerned, the applicant, as an owner of the truck, cannot be made to be vicariously liable. It was submitted that the only reason for arraigning the applicant herein as an accused is to harass and pressurize him. That initially the offence was registered under section 304A of the Indian Penal Code and thereafter, section 304A was deleted and section 304 was applied. It was submitted that by no stretch of imagination, can it be said that the applicant herein is in any manner involved in the offence in question and as such, the first information report is required to be quashed qua the present applicant.
5. This court has also heard Ms. Krina Calla, learned Additional Public Prosecutor for the respondent - State who has submitted that in the facts and circumstances of the case, there is no warrant for exercise of powers under section 482 of the Code.
6. A perusal of the first information report, shows that all the allegations made therein pertain to the truck driver, who had taken the first informant and his family members as passengers in the truck, and it is against the said driver that allegations of rash and negligent driving have been made, which had resulted into the accident being caused whereby twelve members of the family of the first informant had expired and others were injured. Reading the first information report in it’s entirety, there is not even a whisper insofar as the applicant herein is concerned. Thus, there are no allegations against the present applicant who is the owner of the truck in question in respect of the offences alleged, which are under sections 279, 337, 334 and 304 of the Indian Penal Code and sections 177, 184 and 134 of the Motor Vehicles Act, 1980.
7. Thus, insofar as the first information report is concerned there are no allegations as regards commission of any offence against the applicant. Under the circumstances, what is to be seen is whether even otherwise, any of the offences alleged would be attracted qua the applicant. The applicability of the above-referred sections of the Indian Penal Code as well as the Motor Vehicles Act qua the petitioner may, therefore, be examined. Section 279 IPC pertains to rash driving or riding on a public way. In the present case, the allegation in the first information report is to the effect that the driver was driving the vehicle in a rash and negligent manner. Sections 337 and 338 IPC relate to causing hurt by act endangering life or personal safety of others and causing grievous hurt by act endangering life or personal safety of others respectively. In the facts of the present case, in the entire first information report no role has been attributed to the applicant to the effect that he was driving the vehicle rashly or that by doing so he had endangered the lives of the passengers therein. Such allegation of rash and negligent driving has been made only against the driver. Under the circumstances, the provisions of sections 279, 337 and 338 IPC would clearly not be attracted insofar as the applicant herein is concerned. Section 304 IPC, which provides for punishment for culpable homicide not amounting to murder, also would not be attracted in the present case inasmuch as, the applicant herein has not been attributed any role to play insofar as the accident in question is concerned. Section 177 of the Motor Vehicles Act is a general provision for punishment of offences for contravention of any provisions of the Act or of any rule, regulation or notification made thereunder. On a bare perusal of the first information report, it is apparent that no such allegations have been made qua the present applicant. Section 184 of the Motor Vehicles Act which pertains to dangerous driving, would again be applicable only to the driver of the vehicle. Section 134 of the Motor Vehicles Act provides for duty of driver in case of accident and injury to a person. In the facts of the present case, admittedly the applicant herein was not driving the vehicle in question and as such, the said provision would also not be applicable qua the applicant herein.
8. In the light of the aforesaid, it is apparent that neither are any of the provisions of the Indian Penal Code or the Motor Vehicles Act referred to in the first information report attracted insofar as the applicant herein is concerned, nor is there any allegation in the entire first information report attributing any role of the present applicant. The Penal Code, save and except some provision specifically providing therefor, does not contemplate any vicarious liability on the part of a party who is not charged directly for commission of an offence. The provisions invoked in the present case, do not provide for any vicarious liability on the part of a person who is not charged directly with the commission of the offence, similar is the case with the provisions under the Motor Vehicles Act. Under the circumstances, in the absence of the applicant being directly charged with the commission of the offences alleged, he cannot be made vicariously liable for the criminal act on the part of the driver of the vehicle in question merely because he is the owner of the vehicle. Under the circumstances, this is a fit case for exercise of powers under section 482 of the Code.
9. For the foregoing reasons, the application succeeds and is, accordingly, allowed. The first information report registered vide Babra Police Station I C. R. No. 65/2009 as well as all proceedings pursuant thereto are hereby quashed qua the present applicant. Rule is made absolute accordingly.
Direct Service is permitted.
[HARSHA DEVANI, J.] parmar*