Full Judgment
G. Chockalingam, J.
1. The petitioner, who was arrested and remanded to judicial custody on 02.07.2016 for the alleged offences punishable under Sections 279, 304(2) of IPC r/w. 185 of MV Act, in Crime No.492/S1 of 2016, on the file of the respondent police, seeks bail.
2. Mr.B.Kumar, learned Senior Counsel appearing for the petitioner would submit that the respondent police had filed a case against the petitioner and another on the allegation that they had committed the offences punishable under Sections 279, 304(2) of IPC r/w. 185 of MV Act and the petitioner was arrested and remanded to judicial custody on 02.07.2016 and she is in custody for nearly more than 42 days. The petitioner is an innocent and law abiding citizen and she did not commit any offence and she is ready to obey the conditions imposed by this Court. The learned Senior Counsel would further submit that on the date of occurrence, the petitioner left around 3.45 a.m. along with her friends from Chetpet to OMR. After crossing Tidal park, two people were crossing the road from the left to the right and while one had almost crossed over to the right side of the car and was near the median, the deceased was towards the left side of the car. The petitioner slowed down and the deceased stepped back. On seeing him step back, the petitioner had accelerated. Immediately, the deceased had started running towards the car and was hit by the left headlight of the vehicle, while he was on the middle of the road. The petitioner had tried her best to avoid by going as near as possible towards the median without hitting the other person. Immediately, calls were made from the mobile of her friend and passenger to 108 and 911 around 4.19 a.m. The petitioner was taken to Saidapet hospital and she saw the Doctor write that she was not under the influence of alcohol. Thereafter, the petitioner was taken to Royapettah hospital and she was not under the influence of alcohol. Since the investigation is over, the petition has to be allowed and the petitioner may be granted bail.
3. In support of his contentions, the learned Senior Counsel appearing for the petitioner has relied on the following decisions:
(i) 2015 SCC Online HP 2154 (Satnam Singh alias Chint Ram Vs. State of Himachal Pradesh);
(ii) 2012-2-L.W.87 (M.Ramesh Vs. The Inspector of Police, D-6 Anna Square Traffic Investigation, Chennai) and
(iii) Unreported judgment in Crl.O.P.No.18581 of 2013 (P.Shaji Purushothaman Vs. The Inspector of Police, Traffic Investigation Wing, D-6 Anna Salai Police Station, Chennai).
4. Relying the above said authorities, the learned Senior Counsel appearing for the petitioner prayed for grant of bail to the petitioner.
5. Mr.K.Venkatramani, learned Additional Advocate General assisted by Mrs.M.F.Shabana, learned Government Advocate (Crl.Side) would contend that the case is at the investigation stage and the present petitioner, under the influence of alcohol, caused the death of one pedestrian by name Munusamy and committed the offences under Sections 279, 304(2) of IPC r/w. 185 of MV Act. Since the case is under the investigation stage, the petition has to be dismissed. The learned Additional Advocate General would further contend that the previous bail petition filed by the petitioner was dismissed by this Court only on 18.07.2016 and without any change of circumstances, the present petition is filed. Hence, this petition has to be dismissed.
6. In the decision reported in 2015 SCC Online HP 2154 (Satnam Singh alias Chint Ram Vs. State of Himachal Pradesh), at paragraph No.24, the Himachal Pradesh High Court had observed as follows:-
"24. According to Ext. PW-13/E, report of the FSL, the quantity of ethyl alcohol in exhibit P/5 (blood) was 209.81 mg%. A person with blood alcohol concentration of 150-300 mg% would be intoxicated, as per Lyon s Medical Jurisprudence and Toxicology, 11th Edition, page 626. Similarly in Medical Jurisprudence and Toxicology by Dr. K.S.Narayan Reddy, Edition 2004 (Reprint), at page 590, a person who has consumed 150-300 mg %, would be drunk. In Parikh s Text book of Medical Jurisprudence and Toxicology at page 855, it is stated that at a concentration of 0.15 per cent (150 mg %), some are under the influence of alcohol and others decidedly would be drunk. With increasing concentrations the symptoms become more intense. In the instant case, the quantity of ethyl alcohol in exhibit P/5 (blood) was 209.81 mg%. Since the accused had very high concentration of ethyl alcohol in blood, the possibility of receiving the injuries by fall cannot be ruled out, more particularly, when there is no eye witness to the incident and no motive is attributed to the accused for killing the deceased. PW-13 Dr. Yugashwer Ram Ravi, has admitted in his cross-examination that the injuries mentioned in the post mortem report were possible by way of fall from the height of 10 feet on sharp edged stones."
7. In the decision reported in 2012-2-L.W.87 (M.Ramesh Vs. The Inspector of Police, D-6 Anna Square Traffic Investigation, Chennai), at paragraph Nos.18 and 19, this Court had observed as follows:-
"18. Coming to the facts of the case, the records would reveal that the petitioner, on 26.01.2012 in a drunken state while driving a car, crossing the yellow line hit a Motor Cycle, Auto and another Motor Cycle which were proceeding in the opposite direction and dashed on the platform due to which one person died and others sustained injuries. A case was originally registered under Section 304(A), 337 IPC (4 counts) and 184 of the Motor Vehicles Act. Thereafter in pursuant to the Government Hospital accident register entry indicating the drunkenness of the petitioner, the case has been altered into one under Sections 304(ii), 337 IPC (4 counts) and 184, 185, 411 r/w, 177 of Motor Vehicles Act in Crime No.38/T3/2012. The petitioner was arrested on 30.01.2012 and remanded to judicial custody on the same day.
19. Taking note of the fact that the petitioner has been in judicial custody from 30.01.2012 onwards and his custodial interrogation is over, this Court is inclined to enlarge him on bail. It is also made clear that this Court has not expressed anything on the merits of the case and the trial Court is directed to decide the case on its own merits uninfluenced by any of the observations made in this order. Accordingly, the petitioner is directed to be released on bail, subject to the following conditions:-
(i) The petitioner shall execute a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only), with two sureties each for a like sum to the satisfaction of the learned XIV Metropolitan Magistrate, Egmore, Chennai;
(ii) The petitioner shall report before the respondent police daily at 10.30 a.m. for a period of four weeks and thereafter shall be available for interrogation as and when required."
8. In the Unreported judgment in Crl.O.P.No.18581 of 2013 (P.Shaji Purushothaman Vs. The Inspector of Police, Traffic Investigation Wing, D-6 Anna Salai Police Station, Chennai), at paragraph Nos.2 and 8, this Court had observed as follows:-
"2. The case of the prosecution is that on the night of 22.05.2013, the petitioner drove his car in a rash and negligent manner under the influence of alcohol along with his three other friends and ran over the persons who were sleeping on the payment near the maternity Hospital at Egmore, causing the death of a 13 years old minor boy and injuries to other persons, resulting in the registration of the case.
8. (i) The petitioner shall execute a bond for a sum of Rs.1,00,000/- (Rupees One lakhs only) with two sureties each for a like sum to the satisfaction of the learned XVIII Metropolitan Magistrate, Saidapet, Chennai;
(ii) The petitioner shall deposit a sum of Rs.1,00,000/- (Rupees One lakhs only) to the credit of Crime No.492/S1 of 2016, on the file of the XVIII Metropolitan Magistrate, Saidapet, Chennai, towards compensation for the deceased and it is open for the family of the deceased to approach the Court and seek for withdrawal of the said amount of Rs.1,00,000/- on filing appropriate petition and the learned Magistrate, on proper verification of identity of the family members of the deceased Munusamy, shall hand over the compensation amount to them;
(iii) The petitioner shall appear before the respondent police daily at 10.30 a.m. for a period of two weeks.
(iv) The petitioner shall not leave the limits of Chennai City until further orders and without obtaining prior permission from the Court."
9. In this case, according to the medical report, at the time of breath analyser test, 36 mg% of alcohol was found out and blood sample was collected and according to the blood sample, there is only trace of alcohol found out.
10. Further, in this case, it is useful to refer Section 185 of the Motor Vehicles Act, 1988, which reads as follows:-
"185. Driving by a drunken person or by a person under the influence of drugs. Whoever, while driving, or attempting to drive, a motor vehicle,
(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, or
(b) is under this influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both.
Explanation. For the purposes of this section, the drug or drugs specified by the Central Government in this behalf, by notification in the Official Gazette, shall be deemed to render a person incapable of exercising proper control over a motor vehicle."
11. In this case, investigation is almost over and they are only awaiting for the chemical report from the Forensic Department. On verification of records, the learned Senior Counsel appearing for the petitioner would submit that even after the dismissal of the previous bail petition, the present petition is filed and the petitioner has come to the knowledge of the chemical report after the dismissal of the previous bail petition. Hence, the argument of the learned Additional Advocate General that the bail petition has to be dismissed, since there is no change of circumstances, cannot be accepted.
12. In the unreported judgment in Crl.O.P.No.18581 of 2013 (P.Shaji Purushothaman Vs. The Inspector of Police, Traffic Investigation Wing, D-6 Anna Salai Police Station, Chennai, this Court granted bail and the petitioner in the said petition was directed to deposit a sum of Rs.5,00,000/- to the credit of the trial Court and the deceased family was permitted to withdraw the said amount.
13. In view of the above facts and circumstances of the case and since the investigation is almost over and the chemical report is only awaiting and also considering the fact that the petitioner is in custody for the past 42 days, this Court is inclined to grant bail to the petitioner with some conditions.
14. Accordingly, the petitioner is ordered to be released on bail subject to the following conditions:-
(i) The petitioner shall execute a bond for a sum of Rs.1,00,000/- (Rupees One lakh only) with two sureties each for a like sum to the satisfaction of the learned XVIII Metropolitan Magistrate, Saidapet, Chennai;
(ii) The petitioner shall deposit a sum of Rs.1,00,000/- (Rupees One lakh only) to the credit of Crime No.492/S1 of 2016, on the file of the learned XVIII Metropolitan Magistrate, Saidapet, Chennai, towards compensation for the deceased and it is open for the family of the deceased to approach the Court and seek for withdrawal of the said amount of Rs.1,00,000/- on filing appropriate petition and the learned Magistrate, on proper verification of identity of the family members of the deceased Munusamy, shall hand over the compensation amount to them;
(iii) The petitioner shall appear before the respondent police daily at 10.30 a.m. for a period of two weeks and
(iv) The petitioner shall not leave the limits of Chennai City until further orders and without obtaining prior permission from the Court.