Judgment Petition: Petition for bail. Offences: 2. Offences alleged are under Sections 279, 337, 338 (two counts) and 308 of IPC. Submissions: accused 3. According to the learned counsel for the petitioner, even taking the allegations as such in the F.I.R. an offence under Section 308 IPC is not warranted. 4. Learned counsel for the petitioner further contended that understanding the travails of the boy's family, petitioner paid Rs.50,000/- towards the boy's medical treatment. Petitioner also given Rs.5 lakhs to the boy's father and further he is ready to pay a reasonable sum. Petitioner is a graduate. So far he has not been involved in any criminal case. He has fair antecedents. He has permanent residence in Chennai. He will not run away. He will co-operate with the investigation agency. He has been jailed since 03.07.2014. In the circumstances, he may be granted bail. Submissions: prosecution 5. On the other hand, the learned Government Advocate (Criminal Side) submitted that the occurrence took place near a School zone. There are 3 injured. Defacto complainant's son sustained grievous injuries on his legs. Both his legs were amputated. The injured boy is only about 3½ years old. His future has become bleak. Investigation is going on. Defacto complainant: 6. Subramani, the defacto complainant, who is the father of the said boy, namely, Roshan, is present today. He did not deny his receipt of Rs.50,000/- and also Rs.5 lakhs. He is not interested in jailing the petitioner. Consideration: 7. I have considered the rival submissions and perused the case-diary. Factual matrix: 8. Subramani and Geetha are parents of Roshan who is about 3½ years old. They are residing in Choolai, Chennai. They put the boy in a nearby school situate in Kalathiappa Street, Choolai, Chennai. During the afternoons, Geetha used to feed her son near the school. Everything went as usual for them. But fate was cruel to them on 03.07.2014. They did not know on that day misfortune is going to happen to their beloved Roshan. 9. On the said day, at about 12.30 noon, just outside the School, on the pavement as usual Geetha was feeding Roshan. Her husband was standing nearby. Opposite to that there is Kalpavrikash Apartments. At that time, suddenly the Santro car TN-04-P-4797 came. It ran over Roshan. He fell down. The car hit Geetha and also Kirthiga, a school girl. The car was driven by the petitioner. Her husband was standing nearby. Opposite to that there is Kalpavrikash Apartments. At that time, suddenly the Santro car TN-04-P-4797 came. It ran over Roshan. He fell down. The car hit Geetha and also Kirthiga, a school girl. The car was driven by the petitioner. Then, he was trying to took the car outside. There was a slope. In the circumstances, the accident took place. Roshan sustained grievous injuries on his legs. Geetha sustained fracture. Kirthiga sustained simple injuries. Ultimately, Roshan's legs were amputated. 10. Under these circumstances, petitioner has been booked for offences under Sections 279, 337, 338 (two counts) and 308 IPC. Crime, Criminology: 11. 'Crime' is an objectable act. It is an offensive act. It may be 'commission' or 'omission' of an objectable act. Unless such 'an act' is made an offence by 'an Act' it will not be an offence even it may be an immortal act. Law and morality are different. An 'illegality' need not be always synonymous with 'morality'. And the Act shall prescribe various 'forms' of sanctions/punishments therefor. 12. Lord Macaulay's Indian Penal Code is a codification of penal law of India. It is the General Law of Crimes of this country. It is a product of erudition and scholarship. Lord Macaulay has become a source of inspiration and income for many. His Great Penal Code withstood the test of time with minimal aberrations. 13. In Chapter XIV of the Code, Section 279 IPC deals with rash and negligence driving of vehicles on public roads in such a manner endangering human life and safety likely to cause hurt or injury. Actual injury or hurt need not be necessary. But, the crux of the section is rash or negligent driving of vehicles in a thoroughfare. Section 279 IPC is concerned with public safety. Generally in all cases of road accidents involving vehicles, there will be an element of Section 279 IPC. In Chapter XVI of the Code, offences against human body are classified. If by a rash and negligent act simple injury has been caused, it is punishable under Section 337 IPC. Naturally, it must be read with Section 319 IPC (definition of (simple) hurt). If the victim sustains grievous injuries, it is punishable under Section 338 IPC. Naturally, it must be read with Section 320 IPC (definition of grievous hurt). If by a rash and negligent act simple injury has been caused, it is punishable under Section 337 IPC. Naturally, it must be read with Section 319 IPC (definition of (simple) hurt). If the victim sustains grievous injuries, it is punishable under Section 338 IPC. Naturally, it must be read with Section 320 IPC (definition of grievous hurt). But, for offences under Sections 337 and 338 IPC, the accident need not involve a vehicle and it need not be in a thoroughfare, but it must be a rash and negligent act endangering human life or personal safety of others. Sections 279, 337, 338 IPC are not based on 'intended acts'. They are based on 'rash and negligence'. Sections 279, 337, 338 IPC are 'cognizable' but are 'bailable' and triable by any 'Magistrate'. 14. Offence under Section 308 IPC comes under the heading 'offences affecting human life' in Chapter XVI of the Code. Section 308 IPC is intended to punish those who attempts to commit 'culpable homicide not amounting to murder'. Section 299 IPC describes 'culpable homicide' causing the death of a person (actus rea, overt act) with mens rea (guilty mind, cogintive factor).'Mens rea' has been put under three dimensions. The offence of 'murder' is stated in Section 300 IPC. Under 3 exceptional circumstances', culpable homicide 'will not amount to murder'. There are several 'exceptions' to it. So it is culpable homicide not amounting to murder. Excepting those circumstances when death takes place, culpable homicide 'amounts to murder'. If it is murder it is punishable under Section 302 IPC. If it falls under any one of the 3 exceptional clauses to Section 300 IPC then it is punishable under Section 304 IPC. If it is intentional 304(i) IPC, if it is without intention but with knowledge it is punishable under Section 304(ii) IPC. 15. If the offence of murder becomes incomplete, the man survives it is 'attempt' to commit murder under Section 307 IPC. If the culpable homicide not amounting to murder is incomplete it is 'attempt to commit culpable homicide' under Section 308 IPC. Thus, Section 299 IPC is 'generic', while Sections 300, 302, 304(i), (ii), 307, 308 IPC are its species. Section 299 IPC is 'mother' and the other Sections are its 'children'. 16. Lord Macaulay phrased Sections 307, 308 IPC similarly but with 'minute distinction'. Thus, Section 299 IPC is 'generic', while Sections 300, 302, 304(i), (ii), 307, 308 IPC are its species. Section 299 IPC is 'mother' and the other Sections are its 'children'. 16. Lord Macaulay phrased Sections 307, 308 IPC similarly but with 'minute distinction'. Under Section 307 IPC, if death takes place 'he would be guilty of murder', but under Section 308 IPC, if the death takes 'he would be guilty of culpable homicide not amounting to murder'. They are linked with Section 299 IPC and Section 300 IPC and the 3 exceptional clauses to Section 300 IPC. Thus, an offence under section 307 I.P.C. is murder less death. Thus, for an offence under section 307 I.P.C. all the requisite elements for an offence of murder must present but death should not take place. Similar is the perspective with respect to an offence under section 308 I.P.C. 17. If death does not fall under Section 299 IPC nor under Section 300 IPC or under Section 304 IPC but there is rash and negligent act then it will fall under section 304-A IPC as section 304-A IPC also has been worded similarly. In 304-A IPC also it is mentioned that the death 'should not amount to culpable homicide'. So for the offences affecting human lives, mens rea, intention or knowledge has been made an integral part. 18. There cannot be an attempt to commit an offence under Section 304-A IPC, though an attempt to commit murder or culpable homicide not amounting to murder has been punishable under Sections 307, 308 IPC as the case may be. Under the Indian Penal Code, there cannot be an attempt to attempt nor there cannot be abetment to abetment except the general attempt punishable under Section 511 IPC. (See SATVIR SINGH & OTHERS VS. STATE OF PUNJAB & ANOTHER ( 2001(8) SCC 633 ). 19. In the petitioner's case, prima facie, offences under Sections 337, 338 (2 counts) IPC are attracted. With reference to Roshan whether an offence under Section 308 IPC is attracted is debatable. Considering the manner of incident as mentioned in the F.I.R., the mental element required for an offence under Section 308 IPC is lacking. Still investigation is going on. Now, in a bail petition, we cannot pre-empt the work of investigation agency nor prejudge the issue at this 'nascent' stage of the case. Considering the manner of incident as mentioned in the F.I.R., the mental element required for an offence under Section 308 IPC is lacking. Still investigation is going on. Now, in a bail petition, we cannot pre-empt the work of investigation agency nor prejudge the issue at this 'nascent' stage of the case. So, we have taken a prima facie view of the matter only for the purpose of deciding this bail petition. Victim, Victimology: 20. There is offer of compensation from the petitioner to the victim's family. 21. When a crime is committed, accused goes to jail, if convicted, he continues there for a term, if not sentenced to death. He becomes a state guest. He gets free boarding and lodging. He is being fed freely (without cost) regularly and timely. He has many benefits. He is given some vocational training and has many rehabilitation measures. At one point of time, he walks out of the jail freely and joins the main stream of life. On the conclusion of a criminal trial, police goes happily to his station house, accused, if convicted goes to another house (jail), if acquitted, goes to his own house. 22. But what about the 'victims of crime'. Their sufferings and miseries are untold. They suffer in silence. In some cases, they suffer eternally. 23. In the administration of criminal justice, the most forgotten element is victims of crime. This has been voiced by His Lordship Justice V.R. Krishna Iyer in RATTAN SINGH vs. STATE OF PUNJAB [ AIR 1980 SC 84 ]. In RATTAN SINGH, the learned Judge lamented that the weakness of our jurisprudence is that the victims of the crime do not attract the attention of the law, victim reparation is still the vanishing point of our criminal law and it is a deficiency in our legal system which must be rectified. 24. In ancient times, Hammurabi, the Mesopotamian Emperor of Babylonia (1792-50BCE) prescribed the punishment of 'an eye for eye, and tooth for tooth'. Indeed, a brutal and barbaric system of punishment. It is 'Hammurabi's penology'. It was his way of administration of criminal justice. This was followed by Romans and Greeks. 25. But, in course of time when man became more humane, the said method of 'sanctions' have undergone a sea of change. If a person commits crime he was directed to pay compensation to the sufferer. It is 'Hammurabi's penology'. It was his way of administration of criminal justice. This was followed by Romans and Greeks. 25. But, in course of time when man became more humane, the said method of 'sanctions' have undergone a sea of change. If a person commits crime he was directed to pay compensation to the sufferer. It may be either in cash or in kind. It is Law of Compensation. It is Law of Torts. But, then it was birth and status oriented. MANU, the ancient Indian jurist, prescribed compensation for victims of criminal assault, property damage (See Chapter VIII, verse 287, 288). In the works of BRIHARSPATHI also such instances are available. 26. 'Eye for eye' had become 'for money'. This is 'Ancient Penal Law'. Thus, Maine, the English jurist, in his 'Village Communities' made his famous generalisation that 'the Penal Law of Ancient Communities is not the Law of Crimes, but Law of Dialects (torts)'. 27. It is interesting to note that even the Britishers, in their Anglo- Saxonic Criminal jurisprudence had barbaric punishments. After they subjected us, they brought those 'penological considerations' to this country. Even the highly cultured Lord Macaulay in his Great Indian Penal Code (1860) prescribed 'whipping' and 'transportation for life' as punishments. But, after we attained independence, we have erased such inhuman punishments from the said Code. 28. Psychologists studied crimes and criminals generally. Later, there was independent study on crimes and criminals and their behaviour. It became criminology. They became criminologists. Among them, there were radicals. They championed the cause of victims of crime. Jeremy Bentham (1748 – 1832), a British Philosopher and jurist said that “victims of crime should be compensated when their property or person was violated”. Such radical criminologists started focussing their attention on victims of crime. It became an independent study. It became 'victimology'. 29. Globally, United Nations Conventions on victim protection and compensation came to be passed. There is 'U.N. Declaration of Basic Principles of Justice for victims of crime', 1985 and 'U.N. Declaration of Basis Principles and Guidelines on the Right to Reparation for victims of violation of Human Rights'. 30. The victims of crime should not be simply ignored. Even in the Old Code of Criminal Procedure of 1898, in Section 545 Cr.P.C., there was semblance of giving compensation to victims of crime. 30. The victims of crime should not be simply ignored. Even in the Old Code of Criminal Procedure of 1898, in Section 545 Cr.P.C., there was semblance of giving compensation to victims of crime. In the New Code of Criminal Procedure, 1973, in Section 357 IPC providing of compensation to victims of crime has been prescribed. Under Section 357(1)(b) Cr.P.C. providing of compensation has been prescribed for sufferers of injuries due to the commission of a criminal act. But, compensation has to come out of fine. If the victim is involved in a non cognizable offence, compensation is possible under Section 359 Cr.P.C. It is in addition to fine. Under Section 357-A Cr.P.C. framing a scheme for providing compensation to victims of crime has been prescribed. It advocates an institutional set up. It encourages legal aid to crime victims. Sometimes accused also will be victims. If an accused is groundlessly arrested he can be given compensation under Section 358 Cr.P.C. Under Section 357 Cr.P.C. interim compensation can be ordered by the Court. Even if the accused is admonished or released on probation either under Sections 3 or 4 of Probation of Offenders Act still under Section 5 of the said Act compensation can be given to the victims of crime. Awarding compensation by the Tribunals constituted under the Motor Vehicles Act to the victims of road accidents is a measure of 'victim compensation'. 31. We have thrown away the archaic 'doctrine of sovereign immunity' and discarded the British notions that 'King can do no wrong, ''a King cannot be sued in his own court' because we have become Republic, democratic and a welfare State. Now, no such defence could be pleaded when victim compensation is claimed as against the State. (See STATE OF TAMILNADU & ORS VS. GANESAN & ANR (2013 WRIT L.R. 1017). If victims of crime suffers because of instrumentality of state now they were awarded compensation by the Constitutional Courts. (See Article 226, 32, 136, 142 Constitution of India). It is under Public Law. It is a Public Law Remedy. That apart there is remedy under Law of Torts. It is a private Law Remedy. 32. Now, slowly, to some extent, we are limping back to Ancient Penal Law. It is the need of the hour. It is a felt necessity. It is under Public Law. It is a Public Law Remedy. That apart there is remedy under Law of Torts. It is a private Law Remedy. 32. Now, slowly, to some extent, we are limping back to Ancient Penal Law. It is the need of the hour. It is a felt necessity. Unlike a 'Police State', a 'Welfare State' is bound to take such social security measures to protect a cross section of its society, namely, victims of crime. 33. Sometimes the victims of crime will also include his legal heirs and dependents. Victims of crime need not be for personal offences alone. It may also include victims of property offences, financial cheatings, job racketing, white collar crimes, blue collar crimes, cyber crimes, sexual offences, etc. 34. Law Commission of India, in its 41st Report stated that our courts are not liberal in utilising the existing provisions relating to victim compensation and our courts do not exercise their statutory powers as freely and liberally as they could desire. It had reiterated its such view in its 42nd Report also. 35. An offender's trauma ends by ending his period of jail term. But victims of crime suffers day in and day out, throughout their life. But, inspite such a deplorable situation and sufficient provisions in the statue, least respect or lip service is being paid to victim compensation by police and courts. Their culture must be changed. They need to be sensitized. 36. Relief to the victim: Now, in this case, we have already seen about prima facie case relating to the offences alleged. There are three injured. The boy Roshan suffered grievous injuries. He lost his legs. He is the victim. His parents too. 37. In recent times, when deaths are caused by electrocution, explosions, drunken driving and the accused seeks bail, criminal courts started directing payment of compensation to the victims and are being honoured. But, while ordering so, it is imperative on the part of the Court to take into account the financial capacity of the accused and order a reasonable sum. 38. Now, in this case, unlike other accused petitioner came forward to provide compensation to the victim. Already towards medical expenses Rs.50,000/-has been paid. A Demand Draft for Rs.5 lakhs has been already received by the boy's father. 39. Petitioner appears to be a decent man. Petitioner understood the feelings and sufferings of the boy's family. 38. Now, in this case, unlike other accused petitioner came forward to provide compensation to the victim. Already towards medical expenses Rs.50,000/-has been paid. A Demand Draft for Rs.5 lakhs has been already received by the boy's father. 39. Petitioner appears to be a decent man. Petitioner understood the feelings and sufferings of the boy's family. In such circumstances 'restorative and reparative justice' to the victims of crime involves active, positive, and responsive role of the defence counsel. In this respect, the role of prosecuting counsel cannot be belittled. Above all the active role of the court is very very important. 40. We mentioned further Rs.2 lakhs as compensation to the boy's family. Petitioner accepted it. It has also been accepted by the boy's father also. The learned counsel for the petitioner readily agreed to see that the amount immediately goes to the affected family. 41. This compensation is independent of compensation available to the victim under any other Law, such as Motor Vehicles Act. Getting compensation under Criminal Law is different from getting compensation under Motor Vehicles Act. In the Criminal Law, it is for the sufferings on account of the commission of an offence, payable by the accused. Under the Motor Vehicles Act it is for the sufferings due to the negligent driving and payable by the insurer on account of the insured in pursuance of a contract of insurance/policy. Relief to the accused: 42. In this scenario, there is no use or pleasure or point in keeping the petitioner in jail. In the circumstances, if we deny him bail then we are almost limping back to Hammurabi's darker period. 43. Ultimately, ordered as under: (i) Bail granted; (ii) Two sureties, who shall execute a bond for Rs.15,000/-(Rupees Fifteen Thousand Only) each for a like sum to the satisfaction of the learned XIV Metropolitan Magistrate, Egmore, Chennai; (iii) Within 3 days from today Rs.2,00,000/-(Rupees Two Lakhs only) shall be paid by the petitioner to the defacto complainant. (iv) Petitioner shall report before the respondent police on every Monday and Friday at 10.30 a.m. for two weeks and thereafter, as and when required for interrogation.