Research › Search › Judgment

Karnataka High Court · body

2007 DIGILAW 281 (KAR)

VENKATESH v. STATE BY HEBBAL POLICE

2007-04-17

MOHAN M.SHANTANAGOUDAR

body2007
ORDER On the basis of the complaint lodged by Mr. Fabian Redden, Crime No. 459 of 2006 is registered for the offences punishable under Sections 392 and 363 of the Indian Penal Code, 1860 against the petitioner and two other accused. The police after investigation have laid the cha;-le-sheet for the offences punishable under Sections 397 and 367 of the IPC. 2. The case of the prosecution is that while the complainant was driving his Scorpio Car from Yelahanka towards Bangalore at 8.30 p.m. on 6-12-2006, the petitioner and another followed his car on a motor-cycle upto Hebbal Ring Road. In the said car, Kumari Kanmani Kavi was travelling with the complainant. Though the complainant avoided the accused and proceeded towards Hebbal, the accused began chasing the car of the complainant. However, to avoid the crowded traffic near Hebbal Fly-Over, the complainant took the car towards left side of Fly-Over i.e., towards the Ring Road. Ultimately the car driven by the complainant had to stop because of traffic signal. Then the two accused parked their motor-cycle in front of Scorpio Car and started banging both the front door glasses. The complainant got down from Scorpio, immediately, petitioner herein, who was one of those two miscreants, got into Scorpio Car and drove away the car along with Kumari Kanmani Kavi. The complainant's laptop, mobile phone, etc., were in the car the petitioner did not allow Kanmani Kavi to get down from the car and threatened her with dire consequences by holding her hands and by showing knife. Thereafter the mobile phone of Kanmani Kavi was snatched by the petitioner and he called his friends over phone to come near the car as he has brought the girl. He tried to outrage her modesty and told her that in case if she does not satisfy his lust, he would get 10 boys to commit rape on her. Ultimately, when the car fell in a small ditch, Kanmani Kavi escaped from the car at about 9.45 p.m. During the course of investigation, the police have seized Scorpio Car, mobile phones, laptop, etc., robbed by the accused. At the first instance, the petitioner had approached this Court by filing a bail petition on merits and same came to be dismissed. This is the second petition for bail and the same is filed for taking benefit under Section 167(2) of the Cr. At the first instance, the petitioner had approached this Court by filing a bail petition on merits and same came to be dismissed. This is the second petition for bail and the same is filed for taking benefit under Section 167(2) of the Cr. P.C. by the petitioner. 3. Learned Counsel appearing for the petitioner submitted that the charge-sheet is filed on 83rd day and that the imprisonment prescribed for the offences under Sections 397 and 367 of the IPC may extend to 10 years. Thus, the charge-sheet ought to have been filed within 60 days from the date of arrest/remand. He relies upon the judgments of the Apex Court in the case of Rajeev Chaudhary v State (N. C. T. of Delhi), and in the case of Bhupinder Singh and Others v Jarnail Singh and Another, in support of his contention. He further submits that the offence has not taken place on highway. 4. Sri A.V. Ramakrishna, learned Government Pleader submits that the imprisonment that can be imposed under Section 397 shall not be less than 7 years. That means, according to him, the imprisonment may extend to life also. That the offence had taken place on the highway and " therefore the offence of robbery committed by the petitioner is punishable with sentence upto 14 years. Thus the charge-sheet can be filed upto 90 days. 5. There cannot be any dispute that if the offence has taken place on a Highway, the sentence that can be imposed under Section 392 read with Section 397 of the IPC would be upto 14 years. As the sentence to be imposed is more than 10 years, the charge-sheet can be filed within 90 days from the date of arrest/remand. 6. The petitioner and another accused have chased the car of the complainant, in which Kumar Kanmani Kavi was travelling, from Yelahanka to Hebbal Fly-Over at Bangalore. The said road is a National 'Highway 7. When the car came near Hebbal Fly-Over, the complainant took left turn to avoid crowded traffic in order to save his and Kanmani Kavi's life. Ultimately the car was stopped about 250 feet away from that National Highway and the complainant was forced to get down from the car. According to investigation records, the complainant was robbed of his car and other materials such as laptop, etc., on the ring road which is a busy public road. Ultimately the car was stopped about 250 feet away from that National Highway and the complainant was forced to get down from the car. According to investigation records, the complainant was robbed of his car and other materials such as laptop, etc., on the ring road which is a busy public road. Kumari Kanmani Kavi was also threatened along with the complainant with dire consequences by showing knife and was robbed near that place. It is also not in dispute that the offence is committed between 8.30 and 9.00 p.m. i.e., between sunset and sunrise. Sri Hasmath Pasha, learned Advocate appearing for the petitioner submits that the Ring Road is not a Highway and that therefore the robbery has not taken place on the Highway and consequently the offence under Section 392 read with Section 397 of the IPC is not punishable with imprisonment of 14 years, but is punishable upto 10 years. Hence, the large-sheet should have been filed within 60 days. This Court is unable to persuade itself to agree with the arguments canvassed by Sri Hasmath Pasha. 7. Section 397 of the IPC does not constitute a separate offence. It merely regulates the punishment already provided for the offence of robbery or dacoity under Section 393 or 395 of the IPC as the case may be, by fixing minimum term of imprisonment when its commission is attended by two aggravating circumstances, viz., (i) If the offender uses the deadly weapon for the commission of robbery or dacoity; or (ii) causes grievous hurt to any person or attempts to cause death or attempts to cause grievous hurt to any person. If the aforesaid aggravating circumstances are present in the crime of robbery, then the offence is punishable with imprisonment of minimum period of 7 years under Section 397 of the IPC. 8. According to Sri Hasmath Pasha, if the offence takes place from Jakkur Airodrome upto Hebbal Ring Road, the same cannot be said to be an offence committed on Highway as the said area comes within the limits of municipal area of Bangalore City. According to him, though the said road continues as National Highway 7 towards Yehihanka and Bellary, the said road cannot be treated as Highway within the meaning of Section 2 of the National Highways Act, 1956. The said contention cannot be accepted. According to him, though the said road continues as National Highway 7 towards Yehihanka and Bellary, the said road cannot be treated as Highway within the meaning of Section 2 of the National Highways Act, 1956. The said contention cannot be accepted. The term "Highway" has been nowhere defined in the Code of Criminal Procedure. The same is not even defined in the "National Highways Act". But it is a concept, the meaning of which must be understood as used in common parlance. In the absence of any definition of a particular word found in the Code of Criminal Procedure, the said word will have to be understood as is usually understood by a common man in general. Thus, it is useful to know the meaning of Highway as described in various leading Dictionaries. In 21st Century Dictionary, the word "Highway" is described as "a public road that everyone has the right to use, the main or normal way or route". In Advanced Oxford Current English Dictionary, it is described as "main public road, main route (by air, sea or land), easiest or most direct way". In Dictionary of English Law, it is described as "a passage which is open to the public; thus public rivers are in law considered as highways" . In Judicial Dictionary, it is described as "the common definition of a highway that is given in all the text books of authority is that it is a way, leading from one market-town or inhabited place to another inhabited place, which is common to all, a public road or way open equally to everyone for travel, and includes the public streets of an urban district equally with connecting roads between the urban districts". In Advanced Law Lexicon, it is described as "a passage over which members of the public are entitled to pass and repass, without any hindrance, a public road open to all passengers; the ordinary or main route by land or water, public way, means not merely a mail coach road, but every way which is common to the people at large, way by which public have a right to pass". In Black's Law Dictionary, it is described as "broadly, any main route on land, water or air, a free and public roadway or street that every person may use, the main public road connecting towns and cities". In Black's Law Dictionary, it is described as "broadly, any main route on land, water or air, a free and public roadway or street that every person may use, the main public road connecting towns and cities". It is further relevant to note certain observations on the subject. In Halsbury's Laws of England, Third Edition, Volume 19, at page 12, highways is defined thus: "A highway is a way over which all members of the public are entitled to pass and repass; and conversely, every piece of land which" is subject to that public right of passage is a highway or part of a highway.... It is, however, an essential characteristic of a highway that every person should have a right to use it for the appropriate kind of traffic, subject only to any restrictions affecting all passengers alike. It follows that a road or path over which only individuals, or a limited class of the public (for example, the inhabitants or occupiers of a particular house, field or village) have a right of passage, is not a highway". Salmond in his Law of Torts, 17th edition, at page 79 describes highway thus: "A highway (including in that term any public way) is a piece of land over which the public at large possesses a right of way. A highway extends to the whole width of the space between the fences or hedges on either side partly in order to admit light and air to it, and partly because Macadam's system of road-making with broken stone was not introduced at the earliest until just before the end of the eighteenth century". It is clear from the aforementioned, the meaning assigned to the word "Highway" in various Dictionaries and aforementioned observations of learned authors that it is a public way meant for public in general. It may be a road, a pathway in air or in water. Broadly speaking, Highway is a public main route on land, water or air for which the public have got a right to pass and repass. The right of the public extends over the whole width of the highway or public way. The word "Highway" is a generic term and includes every public way whether on land or on water or in air. The right of the public extends over the whole width of the highway or public way. The word "Highway" is a generic term and includes every public way whether on land or on water or in air. Thus, it cannot be confined only to declared National Highways under Section 2 of National Highways Act, as contended on behalf of the petitioners. The chief characteristic of public way or the highway is that over it all people have right to pass. It is clearly distinguishable from a way to a private house or for the benefit of a particular person or class or communality, or the one limited' to inhabitants, to certain of the villagers only. The fact that a defined and definite number of persons had the right to use the way does not make a public way or highway, to which are entitled to all the citizens. In this matter, admittedly the offence has taken place on the Right Road of Bangalore City, which is a busy public road. The spot in question is just about 250 feet away from the National Highway No.7, near Hebbal Fly-Over. Thus, it is prima facie clear that the offence has taken place on the Highway. 9. In view of the above, it cannot be said that the offence has not taken place on the highway. Hence, the imprisonment of the petitioner may be extend upto 14 years, if convicted. Consequently, the petitioner is not entitled to be released on bail if the charge-sheet is filed beyond 60 days and within 90 days after his arrest and remand in pursuance to provisions of Section 167(2) of the Criminal Procedure Code, 1973. Hence, this Court does not find any ground to allow the petition. Petition is accordingly dismissed.