S.B. Criminal Revision Petition No.101 of 2009,S.B. Criminal Revision Petition No.121 of 2009

3rd March, 2009

Petitioner Counsel: SONIA SHANDILYA
Respondent Counsel: N. A. NAQVI, S. R. BAJWA with Mr. V. R. BAJWA

Cases Cited:
1977 Cr.L.J. 1891 [Para 9]
Thakur V. Hariprasad Vs. State of A.P., 1977 Cr.L.J. 471 [Para 9,11]
1983 Cr.L.J. 1590 [Para 9]
1988 Cr.L.J. 1434 [Para 9]
1994(2) Crimes 449 [Para 9]
1995 Cr.L.J. 556 [Para 9]
1995 Cr.L.J. 2523 [Para 9]
1999 (4) Crimes 461 [Para 9]
1999 Cr.L.J. 3806 [Para 9]
Mahesh Mehto Vs. Shri. Shankar Kumar Mehto, (1999)4 Crimes 461 [Para 10]
Amarnath Vs. State of Haryana, 1977 Cr.L.J. 1891 [Para 11]
Madhu Limaye Vs. State of Maharashtra, 2007 ALL SCR (O.C.C.) 191=AIR 1978 SC 47 [Para 14]
M/s. Bhaskar Industries Ltd. Vs. M/s. Bhiwani Denim and Apparels Ltd., 2001 ALL MR (Cri) 1961 (S.C.)=2001 Cr.L.J. 4250 (S.C.) [Para 16]
Sanjiv Nanda Vs. State, 1999(I) AD (Cr.) Del. 650 [Para 19]
Chiman Singh Vs. State of Raj., RCC Sept. 1997, 507 [Para 19]
Deepak Kumar Goyal Vs. State of Raj., 1995 Cr.L.R. (Raj.) 557 [Para 19]
Sharda (Smt.) Vs. State of Raj., 2001 Cr.L.R. (Raj.) 129 [Para 19]
Utsav Bhasin Vs. State, MANU/DE/1414/2008 [Para 19]
State of Gujarat Vs. Haidarali Kalubhai, (1976)1 SCC 889 [Para 20]
Balwant Singh Vs. State of Punjab, 1994 Supp(2) SCC 67 [Para 20]
Satpal Vs. State of Haryana, (2004)10 SCC 794 [Para 20,22]
State of Raj. Vs. Chittarmal, JT 2007(9) 261 [Para 20]
Prabhakaran Vs. State of Kerala, 2008 ALL MR (Cri) 288 (S.C.)=AIR 2007 SC 2376 [Para 20]
Naresh Giri Vs. State of M.P., 2007 ALL MR (Cri) 3550 (S.C.)=(2008)1 SCC 791 [Para 20,23]
Mahadev Prasad Kaushik Vs. State of UP, 2009 ALL MR (Cri) 1864 (S.C.)=JT 2008 (11) SC 218 [Para 20]
State of Karnataka Vs. K. Yarappa Reddy, 2000 ALL MR (Cri) 348 (S.C.)=1999 Cr.Law Reporter (SC) 723 [Para 39]
State Vs. Sanjay Gandhi, AIR 1978 Supreme Court 961 [Para 43]
Dolatram Vs. State of Haryana, (1995)1 Supreme Court Cases 349 [Para 44]
Smt. Rajbala Vs. State of Rajasthan, 2005(1) R.C.C. 289 [Para 45]
Aslam Babalal Desai Vs. State of Maharashtra, AIR 1993 SC 1 [Para 46]
Shukpal Vs. State of Rajasthan, 1988(1) RLW 283 [Para 48]
Gheesya Vs. State of Rajasthan, RLR 1988(2) 307 [Para 49]

JUDGMENT

JUDGMENT :- Since, both the aforesaid criminal petitions arise out and pertain to order dated 9th January, 2009 rendered by the learned Sessions Judge, Jaipur City, Jaipur, whereby, petitions filed by the revisionists under Section 439(2) of Cr.P.C. were dismissed, they are being disposed of by this common order.

2. The facts necessary for the disposal of these revision petitions succinctly stated are :-

That on 14th December, 2008, the students of Institute of Business and Bio-Science, Kota, came on tour and after visiting Behrod arrived at Jaipur on 15th December, 2008. Having parked the Bus way side of the road near Gandhi Nagar crossing, when the students at 10:45 p.m. were in process of crossing the road through Zebra lines to reach at restaurant situated on Tonk Road, one car of black colour, came at a fast speed rashly and negligently and caused violent hit and run accident resulting in the death of Kr. Babita Choudhary and injuries to Kumari Gauri, Kumari Maninder Kaur, Kumari Shaifali and Mukesh. The number of Volkswagen Car was RJ-14 CF 5975. The injured girls were taken to S.M.S. Hospital in Ambulance where Kumari Babita was declared dead by the Doctors. The S.H.O. police station accident, (East), sent the report of this accident to police station Gandhi Nagar where FIR No.580/08 came to be registered in the offences under Sections 279, 337 and 304-A of IPC and the investigation commenced.

3. It is also, alleged that having received the information of the accident, both S.H.O. police station Accident (East) and S.H.O. police station, Gandhi Nagar chased the vehicle which had caused this accident. The S.H.O. intercepted the vehicle NO. RJ 14 CF 5975 and the driver of the vehicle Vijit Singh S/o. Prithvi Singh was taken into custody and produced for medical examination before the Medical Jurist, S.M.S. Hospital, Jaipur as he was found drunk. The samples of blood and urine were taken by the Medical Jurist and duly sent for chemical examination to FSL, Jaipur. Thereafter, at 5.00 a.m., the accused respondent Vijit Singh was released on bail by the Investigating Officer on account of all the offences under Sections 279, 337 and 304-A of IPC being bailable.

4. During investigation, the Investigating Officer recorded the statements of the witnesses acquainted with the facts and circumstances of the case under Section 161 of Cr.P.C., collected the relevant material and the FSL report pertaining to the blood and urine samples of the respondent. The FSL report gave a positive test to 92.00mg/100ml quantity of Ethyl Alcohol in the blood samples and 126.50mg/100ml quantity of Ethyl Alcohol in the urine of accused Vijit Singh. After receiving the FSL report with regard to urine and blood samples of the respondent, and recording the statements of the witnesses, the Investigating Officer found that the offence under Section 304 of IPC was established instead of Section 304-A of IPC and thereafter he apprised the senior police officers with this development. The Investigating Officer finally formed an opinion that the offences under Sections 279, 337, 338 and 304 of IPC and Sections 134/187, 185 of Motor Vehicle Act were fully established against the respondent Vijit Singh.

5. Since the offences under Sections 279, 337 and 304-A of IPC and Sections 134/187 of Motor Vehicle Act were bailable. The Investigating Officer released the respondent Vijit Singh on bail on furnishing bail bonds on 16th December, 2008 itself. The offence under Section 304 of IPC being of grave nature and non-bailable, the revisionists applied for cancellation of bail under Section 439(2) of Cr.P.C. before the learned Sessions Judge, Jaipur City, Jaipur, who dismissed the same on 9th January, 2009. The revisionist felt aggrieved with this impugned orders and hence these revisions.

6. Heard learned counsel for the revisionist as also the learned A.A.G. for the State, and scanned the relevant material available on record.

7. Learned counsel for the revisionist have craved the cancellation of bail on the following grounds :-

(i) That at the initial stage, the respondent Vijit Singh was released on bail on the ground that the offences under Sections 279, 337 and 304-A of IPC are bailable. Later on having collected the material evidence during investigation, it was revealed that the offence under Section 304 of IPC was made out which were graver in nature and non-bailable;

(ii) That the bail granted by the police is subjected to be cancelled if later on a graver and non-bailable offence is disclosed;

(iii) That the accused respondent after committing the accident fled from the spot. When he was chased and tried to be intercepted, he again hit the vehicle and fled, which clearly indicates that the accused committed offence under Section 304 of IPC and not under Section 304-A of IPC;

(iv) That if a person drives a vehicle under the influence of alcohol and subsequently causes hit and run accident, it can safely be gathered that he had a knowledge that from his act the death of a person could be caused. Therefore, such act of the accused is punishable under Section 304 of IPC;

(v) That, thereafter on being chased by an eye-witness Abhimanyu Swami, who tried to stop the accused but the accused-respondent having the knowledge and being aware of his illegal act, hit Abhimanyu Swami as well and fled from there. His post accident conduct of the respondent clearly establishes that the respondent was able to see in the sufficient light available at the crossing that a group of 60 students was moving at the Zebra crossing to cross the road and having knowledge that his act of hitting these students could cause the death of anyone, did not stop the car and on the contrary hit the students and fled from there. He made no efforts to stop the car and thus, his act is punishable under Section 304 of IPC.

8. At the very outset, the learned counsel for the respondent Vijit Singh assailed the maintainability of these revision petitions on the ground that the impugned order dated 9th January, 2009 passed by the learned Sessions Judge, Jaipur City, Jaipur is an interlocutory order and a revision against such interlocutory order is barred under Sub-section 2 of Section 397 of Cr.P.C. He has further canvassed that the order summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of pending proceedings are the interlocutory orders against which no revision would lie under Section 397 (2) of Cr.P.C.

9. In support of this argument, he relied upon 1977 Cr.L.J. 1891; 1977 Cr.L.J. 471; 1983 Cr.L.J. 1590; 1988 Cr.L.J. 1434; 1994(2) Crimes 449; 1995 Cr.L.J. 556; 1995 Cr.L.J. 2523; 1999 (4) Crimes 461 and 1999 Cr.L.J. 3806.

10. Except in the case of Mahesh Mehto and others Vs. Shri. Shankar Kumar Mehto, (1999)4 Crimes 461, in all other cases, it has been held :

"that grant or refusal of bail constitutes an interlocutory order and no revision lies against such order under Section 397(2) of Cr.P.C." (Emphasis supplied)

11. In the case of Thakur V. Hariprasad Vs. State of A.P., 1977 Cr.L.J. 471 and in the case of Mahesh Mehto and others Vs. Shri. Shankar Kumar Mehto, it has been held that the order of canceling the bail also was an interlocutory order and prima facie therefore, a revisional application under Section 397 would not be maintainable. The learned counsel for the respondent has basically relied upon the judgment of Amarnath and others Vs. State of Haryana and others, 1977 Cr.L.J. 1891 wherein, it is observed that :

"Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2). But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court." (Emphasis supplied)

12. In the case of Amarnath & others, it is not held that the order of canceling the bail is an interlocutory order. Thus, an order with regard to cancellation of bail cannot be said to be an interlocutory order in view of this judgment of Hon'ble Apex Court.

13. A bird's eye view of some of the decisions of Hon'ble Apex Court throwing light on this issue needs to be taken.

14. A three Judge Bench of Hon'ble Apex Court in Madhu Limaye Vs. State of Maharashtra, AIR 1978 SC 47 : [2007 ALL SCR (O.C.C.) 191] laid down the following test :-

"All order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2)" (Emphasis supplied)

15. The above position was reiterated in the case of Rajasthan Kumar Sitaram Pande & ors. Vs. Uttam and Anr. Again in the case of K. K. Patel and anr. Vs. State of Gujarat and Anr., Hon'ble Apex Court stated thus :

"It is well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 387(2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath Vs. State of Haryana, Madhu Limaye Vs. State of Maharashtra, V. C. Shukla Vs. State through CBI and Rejendra Kumar Sitaram pande Vs. Uttam). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed of such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objections raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable."(Emphasis supplied)

16. In the case of M/s. Bhaskar Industries Ltd. Vs. M/s. Bhiwani Denim and Apparels Ltd. And ors., 2001 Cr.L.J. 4250 (S.C.) : [2001 ALL MR (Cri) 1961 (S.C.)], the Hon'ble Apex Court has held :-

"The interdict contained in Section 397(2) of the Code of Criminal Procedure (for short 'the Code') is that the powers of revision shall not be exercised in relation to any interlocutory order. Whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at the interlocutory stage. The safe test laid down by this Court through a series of decisions is this: if the contention of the petitioner who moves the superior court in revision, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate? If it would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage."(Emphasis supplied)

17. An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties. Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is that in ordinary sense of the term, an interlocutory is one which only decides a particular aspect or a particular issue or a particular matter in a proceeding.

18. Now, it is tangible from the aforesaid judgments pronounced by the Hon'ble Apex Court from time to time that if a criminal proceeding as a whole culminates or concludes albeit, at an interlocutory stage, shall not fall in the category of an interlocutory order. In the instant case, a petition with regard to cancellation of bail was finally decided by the learned Sessions Judge and the same was dismissed. This order of the learned Sessions Judge with regard to the prayer of canceling bail, already granted by the police to the respondent, is a final order as the proceedings in this matter as a whole culminated. It is certainly not an interlocutory order and to end, in my opinion, revision lies under Section 397 (2) of Cr.P.C. against the impugned order. The contention of the learned counsel for the respondent is found to be devoid of force and objection raised by him at the initial stage deserves to be jettisoned.

19. Now adverting to the issue of canceling the bail already granted by Investigating Officer to the accused respondent, the learned counsel for the revisionist canvassed that bail granted by the Police for the offences under Sections 279, 379 and 304-A of IPC (Bailable offences) will not enure to the benefit of the accused respondent after the conversion of the offence to Section 304 of IPC. The learned Additional Advocate General Mr. N. A. Naqvi has contended that the accused respondent noticing a group of 60 students crossing Zebra line on a fully lit road drove the vehicle at a fast speed knowingly that his act could cause the death of any person and thus hit the students causing the death of Kumari Babita Choudhary and further causing simple and grievous injuries to Kumari Gouri, Kumari Munindra, Kumari Shefali and Mukesh. The act of the respondent was not only immensely dangerous but cruel and callus also and this act constitutes an offence under Section 304 of IPC. The respondent is an influential person and thus, there are every chances and likelihood that he would tamper with the evidence. Hence, in the interest of justice and for fair investigation, the bail so granted by the Police to the respondent deserves to be cancelled. In support of his argument, the learned counsel has cited the following cases:-

1. Sanjiv Nanda Vs. State (1999(I) AD (Cr.) Del. 650).

2. Chiman Singh and Ors. Vs. State of Raj. (RCC Sept. 1997, 507).

3. Deepak Kumar Goyal Vs. State of Raj. (1995 Cr.L.R.(Raj.) 557).

4. Sharda(Smt.) Vs. State of Raj. (2001 Cr.L.R. (Raj.) 129).

5. Utsav Bhasin Vs. State (MANU/DE/1414/2008).

20. Per contra, the learned counsel for the respondent has argued that the facts of the case do not constitute an offence under Section 304 of IPC. It is a case simpliciter of the offence under Section 304-A of IPC. Section 304-A of IPC by its own definition totally excludes the ingredients of Section 299 or Section 300 of IPC. Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a person's death are ingredients of the offence of culpable homicide. Encountering the argument of the learned counsel for the revisionist, Shri. Bajwa has further contended that as per the case of police, the respondent Vijit Singh was aberrant and sozzled, then how it could be gathered that the respondent had the knowledge of all these facts and his act could cause the death of any person. In support of his arguments, he has cited the following judgments:-

1. State of Gujarat Vs. Haidarali Kalubhai ((1976)1 SCC 889).

2. Balwant Singh Vs. State of Punjab and Anr. (1994 Supp(2) SCC 67).

3. Satpal Vs. State of Haryana ((2004)10 SCC 794).

4. State of Raj. Vs. Chittarmal (JT 2007(9) 261).

5. Prabhakaran Vs. State of Kerala (AIR 2007 SC 2376 : [2008 ALL MR (Cri) 288 (S.C.)]).

6. Naresh Giri Vs. State of M.P. ((2008)1 SCC 791 : [2007 ALL MR (Cri) 3550 (S.C.)]).

7. Mahadev Prasad Kaushik Vs. State of U.P. & Anr. (JT 2008 (11) SC 218 : [2009 ALL MR (Cri) 1864 (S.C.)]).

21. In the case of Haidarali Kalubhai, the deceased along with a Head Constable and two constables was resting on a cot at a hotel situated on a Kutcha Road by the side of the highway. The appellant came to the spot on his tractor. A truck which was formerly driven by him was parked there with only the conductor present. The appellant is alleged to have willfully driven the truck at full speed against the deceased's cot over-throwing him and causing his death. The version of the appellant was that he lost control over the vehicle resulting in the accident. The Sessions Court convicted him under Section 304, Part-II which was altered to that under Section 304-A by the High Court and the Supreme Court upheld the judgment of the High Court.

22. The learned counsel took me to the case of Satpal Vs. State of Haryana ((2004)10 SCC 794) wherein it has been held that :-

"From the facts proved, it cannot be said that the accused had either intended to cause death of the victim or had knowledge that he was likely to cause death by such act. The evidence to prove a case of culpable homicide or murder is completely lacking. Merely because the victim was dashed by the vehicle which was being driven by the appellant, from that alone, neither a case of murder nor that of culpable homicide can be inferred. We are of the view that the facts alleged and proved show that act of the accused was a rash one, as a result of which the victim was dashed causing his death thereby. In our opinion, the prosecution has succeeded in proving its case beyond reasonable doubts but the accused can be said to have committed an offence under Section 304-A, IPC and the High Court was not justified in upholding the conviction of the appellant under Section 302, IPC." (emphasis supplied)

23. There is another case of Naresh Giri Vs. State of M.P. ((2008)1 SCC 791 : [2007 ALL MR (Cri) 3550 (S.C.)]) wherein a train hit the bus at the Railway Crossing causing the death of two passengers and simple and grievous injuries to several passengers. The accused was indicted for the offence under Section 302 of IPC and alternatively under Sections 304, 325 and 323 of IPC.

24. The Hon'ble Apex Court held that:-

"doing act with intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide."(Emphasis supplied)

25. Section 304-A carves out a specific performance where it is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. Similarly, in other cases cited by the learned counsel for the respondent same ratio has been applied.

26. In order to draw a tangible distinction between the offences under Sections 304 and 304-A of IPC, it would like to reproduce section 300 of IPC which reads as under :-

"Section 300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

Secondly.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-

Thirdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

Fourthly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."

27. Exception.1- When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

28. The above exception is subject to the following provisos:-

First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Exception.2.-Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Exception.3.-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception.4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception.5.-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

29. Section 300 of IPC comprises of two parts. The first part relates to culpable homicide amounting to murder and the Second Part contemplates when culpable homicide is not murder. If the culpable homicide is murder then the act of the accused is punishable under Section 302 of IPC and when culpable homicide is not murder then the act of the accused amounts to be punishable under Section 304 of IPC. Section 304 of IPC applies to the following clauses of cases:-

(i) When the case falls under one or the other clauses of Section 300 but is covered by the exceptions to that Section;

(ii) When the injury caused is not of the higher degree of likelihood which is covered by the expression of "sufficient in the ordinary course of nature to cause death", but is of a lower degree of likelihood generally spoken of as an injury "likely to cause death" and the case also does not fall under Clause (2) of Section 300;

(iii) When the act is done with the knowledge that the death is likely to ensue but there is no intention to cause death or an injury likely to cause death. In such cases, there may be either no intention to cause any injury at all or there my be an intention to cause simple or grievous hurt but not an injury likely to cause death.

30. Where a case falls under either (i) or (ii), as stated above, it is within the ambit of Section 304 of IPC Part-I, and a case falls under (iii) above would be covered by Section 304 of IPC, Part-II.

31. Whereas in order to constitute an offence under Section 304-A of IPC the death of a person must have been caused by the accused doing an act in a rash or negligent manner, as such, there must be positive evidence that the rash or negligent act of the accused was the proximate cause which resulted in the death of the deceased. There must be direct nexus between the death of a person and the rash or negligent act of the accused.

32. Now coming to the facts of the instant case and evidence collected by the Investigating Officer therein, it is revealed that on 15th December, 2008 at 10.45 PM when a group of students was crossing the road to reach at the restaurant situated at Tonk Road, a black coloured car came at a high speed from the direction of Ajmeri Gate and hit negligently Kumari Babita, Kumari Gouri, Kumari Maninder Kaur, Kumari Shefali and Mukesh resulting into the death of Kumari Babita and injuries to rest of them. The police lodged the First Information Report in the offences under Sections 279, 337 and 304-A of IPC and Sections 134/187 of the Motor Vehicles Act on the written complaint of Minakshi Sharma. The Investigating Officer released the accused respondent on bail as all the offences, wherein he was alleged to have been involved, are bailable. Thereafter suddenly on 21st December, 2008 the Investigating Officer changed the direction of investigation and converted the offence of Section 304-A into an offence under Section 304 of IPC. The Investigating Officer observed in the case diary that from the statements of the witnesses, site-plan and the F.S.L. Report with regard to the blood and urine sample of respondent Vijit Singh, the offence under Section 304 of IPC was made out and thus finally he found that the offences under Sections 279, 337, 338, 304 of IPC and 134/187, 185 of M.V. Act were established against the accused respondent.

33. In the case of Sanjiv Nanda Vs. State popularly known as 'BMW Accident Case', Delhi High Court dismissed the bail petition of the accused on the ground that he was not found to be a resident Indian nor Indian National and had travelled to India on British Pass-port. During arguments, the Court also gathered that he was a student in USA, he had to go to pursue his studies there and take his examination. The Court felt that releasing him on bail shall certainly delay the trial and thus the interest of justice shall suffer.

34. Similarly, in Utsav Bhasin's case, the accused approached Delhi High Court for grant of anticipatory bail. In this case initially, the case was registered under Sections 279 and 337 of IPC but after the death of one of the victims namely Anuj, Section 304-A of IPC was added. Subsequently, under the media pressure Section 304 of IPC was also added to the FIR. Delhi High Court did not given any finding in this case as to whether the facts of the case constituted an offence under Section 304 or Section 304-A of IPC but considering the totality of the facts and circumstances of the case, refused to grant anticipatory bail and rejected the petition. It is very interesting to note that in both the cases of Sanjiv Nanda Vs. State ('BMW Accident Case') and Utsav Bhasin, the case was initially registered in the offences under Sections 279, 337 and 304-A of IPC and thereafter under media pressure Section 304 of IPC was also added. To my utter surprise in both the cases the police investigated for the offences under Sections 279, 337, 304-A and 304 of IPC. In the instant case also the police has observed in the case diary on 21st December, 2008 that from the statements of the witnesses, site-plan and the F.S.L. Report relating to the blood and urine sample of respondent Vijit Singh and all the evidence collected so far, the offences under Sections 279, 337, 338, 304 of IPC and 134/187, 185 of M.V. Act are established.

35. It is insisted upon that the gravamen of the offence under Section 304 of IPC is intention or knowledge whereas the nucleus of the offence under Section 304-A is the rash and negligent act not amounting to culpable homicide. The respondent is alleged to have committed the offences under Sections 337, 338 and 304 of IPC in the course of same transaction.

36. In order to determine whether a group of facts constitute one, it is necessary to ascertain whether they are so connected together as to constitute a whole which can properly be described as a transaction. The real and substantial test by which to determine whether several offences are so connected as to form the same transaction depends on whether they are so related to one another in point of purpose, or as cause and effect or as principal and subsidiary acts as to constitute one continuous action. When applying the facts of the instant case on above touch-stone, it may be said that either the respondent was driving the car in a drunken state rashly and negligently or he knowingly drove the Car at a high speed and hit the students crossing the Zebra Line with knowledge that his act in all probability would cause the death of anyone of them. It is certain that the investigation for the offences under Sections 279, 337, 338 and 304 of IPC cannot be conducted together especially when they have been committed in series of one transaction and that too when the nucleus of the offence under Sections 279, 337 and 338 of IPC is rash and negligent act and the gravamen of the offence of Section 304, IPC is the intention and knowledge. How can the intention and knowledge as also the rash and negligence run simultaneously? Can a man move in two opposite directions at a given time? It looks ridiculous to accept a proposition that when the accused respondent caused simple and grievous hurt to the victims namely Kr. Gauri, Kr. Maninder Kaur, Kr. Shaifali and Mukesh, his act was rash and negligent because the investigation is being conducted for the offences under Sections 279, 337 and 338 of IPC and when he caused the death of Kumari Babita Choudhary then he was having the knowledge that his act in all probability will cause her death, whereas all these four offences have been committed by the respondent in the course of one and the same transaction.

37. In a State of Rule of Law, every citizen is equal before the law and it has to be applied equally with equanimity both by the police and the Courts. The provisions of law are required to be made applicable with robust intellect, fairly, impartially, honestly and sagaciously in a right perspective. No interest or prejudice coupled with mischief can be allowed to intrude in the application of law. It is not the status of a man which determines the law, rather it is the law which settles the issues involved in a case. As the status or opulence of a man cannot influence the law similarly the police also should not be permitted to act arbitrarily either way. Since 15th December, 2008, when the occurrence took place till 21st December, 2008 the investigation did not witness any change in the facts and circumstances of the case. No supervening circumstances appeared nor any new development took place. Thereafter, the police suddenly converted the offence of Section 304-A into Section 304 of IPC. In cases of alike nature, police all over the State, invariably investigates for the offence under Section 304-A of IPC, but this sudden conversion of an offence from Section 304-A to Section 304 of IPC during investigation seems to be a pandering approach of police.

38. In the above back drop, the crucial question which emerges for consideration is-

"Should the court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously ?"

39. The Hon'ble Apex Court in the Case of State of Karnataka Vs. K. Yarappa Reddy (1999 Cr. Law Reporter (S.C.) 723 : [2000 ALL MR (Cri) 348 (S.C.)]), has answered to this question in the following terms:-

"It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized by the Court independently of the impact of it. Otherwise, criminal trial will plummet to the level of the Investigating Officers ruling the roost. The Court must have predominance and pre-eminence in criminal trials over the action taken by the Investigating Officers. Criminal justice should not be made the casualty for the wrongs committed by Investigating Officers in the case". (Emphasis supplied)

40. At the time of hearing arguments, this Court expressed that at this stage, the Court shall not give any observation or finding to the effect as to whether the facts of the case do constitute an offence under Section 304 of IPC or not but after peeping into the case diary, the manner in which the investigation of the offence under Section 304-A of IPC has been converted into the offence under Section 304 of IPC, it has compelled me to ruminate as to whether the investigation of the case conducted by the Police is going in a right direction? Usually, the Courts do not interfere in the investigation of a case conducted by Police but the state has created circumstances before me by way of making a prayer that the bail granted by the Police for the offence under Section 304-A of IPC should be cancelled as the offence of Section 304-A of IPC has been converted into Section 304 of IPC which is not bailable. This is the prayer of the revisionists which has led me to make above observations.

41. At this stage, it is pertinent to record that if the existing laws have turned insufficient to cope with the challenges posed by alarmingly increasing hit and run accident caused especially by badly drunken drivers, the Government (Legislature) should amend the laws suitably and make the offence under Section 304-A of IPC non-bailable and propose punishment which may extend to ten years imprisonment and fine. Nevertheless, the police should not be permitted to abuse the powers unscrupulously and ridicule the laws of land.

42. Now the only question left for consideration in the instant petition is that as to whether the bail once granted can be cancelled merely on the ground that the offence of Section 304-A has been converted into Section 304 of IPC which is non-bailable.

43. Hon'ble Supreme Court in the case of State Vs. Sanjay Gandhi (AIR 1978 Supreme Court 961) held that :-

"rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial." (Emphasis supplied)

44. Hon'ble Supreme Court has also held in the case of Dolatram and others Vs. State of Haryana, ((1995)1 Supreme Court Cases 349) that:-

"rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the trial."(Emphasis supplied)

45. This Court has held in the case of Smt. Rajbala Vs. State of Rajasthan (2005(1) R.C.C. 289) as under :-

"It is now well settled by a catena of cases of the Apex Court as well as of this Court that the grounds for cancellation of bail are distinct from the considerations for grant of bail. The bail once granted cannot and ought not to be normally cancelled in a mechanical manner unless there are cogent and overwhelming facts and circumstances on record to do so." (emphasis supplied)

46. In the case of Aslam babalal Desai Vs. State of Maharashtra (AIR 1993 SC 1) wherein it has been held that :-

"The grounds for cancellation of bail under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) of (2) or 439(1) can be cancelled where (i)the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc."(Emphasis supplied)

47. Otherwise too, if a person is released on bail by police in bailable offences and during investigation a new offence or offences which are non-bailable are added, the bail already granted in bailable offences shall enure to the benefit of the accused respondent even after adding a non-bailable offence.

48. This High Court in the case of Shukpal Vs. State of Rajasthan, 1988(1) RLW 283, held that :-

"when a person is on anticipatory bail and some new offences have been added during investigation, then police cannot arrest an accused by adding a non-bailable offence. The police must seek an order from the court for cancellation of bail already granted to a person."(Emphasis supplied)

49. In the case of Gheesya & Ors. Vs. State of Rajasthan, RLR 1988(2) 307, it has been held that :-

"The principle that when a person is released on bail or released on anticipatory bail, he cannot be arrested if another offence is found to have been committed by him at the time of investigation of the case is well settled and if the court considers it proper then the bail granted can be cancelled under section 437(5) and Section 439(2), Cr.P.C. So far this principle is well established. However, it can be said that the ground for cancellation of bail should not be merely that a graver offence is found to have been committed as a result of the investigation but should be something different, such as that the accused is likely to abscond, is likely to tamper with the evidence or that he is mis-using his liberty etc."(Emphasis supplied)

50. Learned counsel for the revisionist Mr. Chandra Pal Singh Choudhary has submitted that the respondent was a highly influential person and his post accident conduct made it clear that there was a threatening from him to tamper with the evidence and influence the witnesses causing hinderance in fair investigation of the case.

51. Learned Additional Advocate General has also canvassed that the accused was an influential person and there was every likelihood that he would tamper with the evidence, therefore, in the interest of justice and fair investigation, the bail so granted by the police to the accused respondent deserves to be cancelled.

52. The submissions made by the learned counsel and the learned Additional Advocate General are found to be omnibus and devoid of particulars. Not even a single instance has been quoted so as to arrive at a conclusion that it was likelihood for the respondent to tamper with the evidence. No such apprehension has been shown by the revisionists that the interference or attempt to interfere with the due course of administration of justice has been made or the concession of bail granted to the respondent has been abused in any manner or the respondent is likely to abscond or he will abscond. It is also not shown as to how shall he tamper with the witnesses. No such cogent or overwhelming circumstances have been put-forth which are necessary for order directing the cancellation of bail, already granted. It must always be remembered that the object of Sub-section 2 of Section 439 is not punitive.

53. In the ultimate analysis, now has been brought to my notice either from which any inference may possibly be drawn that the respondent has in any manner, whatsoever, abused the concession of bail during intervening period. The impugned order of the learned Sessions Judge is cogent and well merited. It does not suffer from any illegality or infirmity. I am in unison with the finding of the learned Sessions Judge and in my view, the impugned order does not call for any interference. Memorizing the facts and law discussed as above, I do not find any strong ground to cancel the bail already granted to the respondent merely on the ground that the offence of Section 304-A of IPC has been converted into Section 304 of IPC which is non-bailable. The bail already granted to the respondent cannot be directed to be cancelled.

54. For these reasons, both the criminal revisions being bereft of merits stands dismissed.

55. However, it is made clear that whatever observations have been made are only to decide the question of cancellation of bail already granted by the Police to the respondent and shall not be treated to be expression of any opinion on merits. The case relating to acceptability or otherwise of the evidence is the subject matter for the trial court.

Petition dismissed.