Query regarding next date of hearing for accident case.
Querist :
Anonymous
(Querist) 08 June 2011
This query is : Resolved
Hi,
I have been granted court bail and chargesheet has been filed against me. The next date of hearing is fixed on 21-July-11.
I have talked to accident victim and he is ready to settle the case.(IPC 338) and my lawyer have suggested that he will argue for IPC 279.
Now my query is that if we take the accident victim with us on next date will court allow to compound 338 if the victim agree for settlement. Also is it possible to argue for case under 279 and put required facts before court and get aquital on same or will it take few more hearing to settle 338 and get aquital in 279 IPC.
Since next date is fixed on 21-July, but I have to leave delhi on 8-July due to my job, is there a way to request court to change the hearing date to some date before 8-July-11 indicating that both the parties wants to settle the case.
Please provide your valuable comments.
PALNITKAR V.V.
(Expert) 08 June 2011
A similar query was put up and it is already answered. I believe you had put that query on 2nd June,2011 under heading "Query for case filed under IPC 279/338.
Querist :
Anonymous
(Querist) 08 June 2011
You are right I had asked query asking expert if I should compromise or peruse that case and I had been suggested that I can get out of IPC 338 by compromise. But I have to persue case for IPC 279 as it is non compoundable.
Based on suggestion from esteemed members I have decided to persue my case u\s 279 and since accident victim is ready to compromise I am trying to get out of clutch of 338 by way of compromise.
I have been granted bail on 07-July by court and it has fixed my next hearing date on 21-July(since the judge was on leave a proxy judge has granted me bail and fixed the next hearing date. My queries now are as under.
1. Is there a way that I can request court to get hearing date fixed earlier(Before 09-July). As suggested above court have already fixed hearing date on 21-July I want to reqest it to prepond to ealier dates.
2. Since 21-July will be first hearing date after getting court bail, I am not sure if court will send summon to the accident victim. If I take the victim along with me on next hearing date(21-July) and we both pray to settle the case will court allow to compound 338.
3. If my lawyer argues on charges under 279 is there possibility to get aquital on same date or I have to bear for few more dates(days\months) before I can finally get out of case.
I am asking all above question because I will be based in mumbai on 21-July and I have to come to delhi to attend the case and I wanted to be sure that atleast I get out of 338 on 21-July if not 279. Otherwise I am planning to ask my lawyer to represent me on next date(21-July) take permisson from court regarding compromise and then may be when court agrees, me and accident victim attend court on next hearing after 21-July and get matter settled and then my lawyer persues case for few more hearing till I get aquital under 279. what is suggestion of esteemed experts?
Thanks for ealier help provided and thank in advance for future :-)
Sarvesh Kumar Sharma Advocate
(Expert) 08 June 2011
this is one case with two sections,
normally after bail majistrate will not compound case after filing chagesheet due to his quota!
first of all court will frame the charge upon you ( your presence is must)and then on the next date the victim will come to court and settle the case(your presence is not requir)
and the time of judgement your presence is must!
nut shall in two dates yr case will finish!
EXPERT
H. S. Thukral
(Expert) 08 June 2011
After minute reading of sections 279 and 338, 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 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.
Though there is no bar if prosecution under section 279 is continued after the complaint under 338 is compounded the courts always lean in favour of compromise and even in cases which are not compoundable and somewhat less serious, the courts do give substantial effect to the compromise between the parties.
However if trial court does not give effect to the compromise, it will be fit case to quash proceedings under section 482 by the High Court.
PALNITKAR V.V.
(Expert) 09 June 2011
With due respect to shri. Thukral, offence u/s 279 is different from offence u/s 338. 279 contemplates rash/negligent driving in public place. Since offence u/s 279 is not compoundable the trial has to proceed. High Court is also not likely to quash the proceeding u/s 279 IPC. But the accused need not remain present for trial on each and every date. Hence, Mr. Anonymous can safely go to mumbai and come to Delhi only when the Court requires his presence.
Querist :
Anonymous
(Querist) 09 June 2011
Thanks to all the experts for providing help.
While searching in google for quashing IPC 279, I have found a recent judgement of mumbai HC "Adwait Surendra Aatre vs The State Of Maharashtra on 7 April, 2011"
The court have allowed to Quash 279 with same comments as suggested by Mr. Harbhajan.
I am planning to talk to my lawyer and file a application for mutual quash in Delhi HC under Cr. PC. 482.
Attached file contains detail judgement of Mumbai. I hope it will be helpful to other people like me who want to get out of such case quickly.
H. S. Thukral
(Expert) 09 June 2011
There are many other judgments from HC as well. In my practice too I have got many cases compounded without much hesitation in trial courts. Courts usually impose a small cost on the accused.
Approach the trial court first by filing application for compounding of offence. I am sure it will be allowed.
Querist :
Anonymous
(Querist) 09 June 2011
Thanks,
Harbhajan sir. As suggested in my previous post, session court have fixed next hearing date to 21-July-11. Can I file a application for compounding of offence before next hearing date(may be within fe days) or I have to wait till 21-July-11.
Also as suggested by you that court impose small cost to accused, I think it means that I will be convicted under IPC 279, but since I work for IT company and have to travel to onsite for my work I wanted to avoid conviction under both the section and get aquital and as per all the available info I can see that its only HC who can quash IPC 279(non compoundbale offence). Can trail court too release me with aquital without a liability of attending case for many dates?
PALNITKAR V.V.
(Expert) 09 June 2011
I had gone through the judgment quoted above. I differ with that view. The said view is per incurium. There is a division bench of Bombay HC. attaching the file.
Querist :
Anonymous
(Querist) 10 June 2011
meanwhile in above discussion one of my important query is still unanswered.
Can I file application to trail court to compound the case before next hearing date fixed by court(21-July), so that court hears me and the victim in some short date and allows to compound the offence under 338 and may be my lawyer tries to put argument for 279.
H. S. Thukral
(Expert) 10 June 2011
You can file the application at any time before that date or on that date. It shall not be conviction but acquital only. cost is not a fine.
H. S. Thukral
(Expert) 10 June 2011
Mr. Palnitkar is right when he says law does not permit the court to compond a non-compoundable case and certainly there are
conflicting judgments. As I said here courts are leaning towards the idea that no purpose will be served in continuation of futile proceedings when due to compromise no evidence shall be available. But High court in its inherent powers can direct compounding of offence.
PALNITKAR V.V.
(Expert) 10 June 2011
Even the HC has no powers to allow compounding of non compoundable case under its inherent powers as was held by SC in Ramlal's case. however, it is a fact that quashing is being allowed liberally. So try your luck!
