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IN THE COURT OF SH. RISHABH TANWAR,

THE HON’BLE METROPOLITAN MAGISTRATE
SAKET COURTS COMPLEX AT NEW DELHI

ANTICIPATORY BAIL APPLICATION NO. _____ OF 2023

IN THE MATTER OF. –

RISHAV RAJ
Son of Rajesh Kumar
Resident of. –
….APPLICANT/
House No. 237, New Mangla Puri,
Mehrauli, South Delhi, Delhi – ACCUSED
110030.
- VERSUS -
STATE OF NCT DELHI …RESPONDENT

F.I.R. NO.:199 of 2022

DATED: 24.10.2022
P.S.: DEFENCE COLONY
U/S : 279 AND 304-A
OF I.P.C.

BAIL APPLICATION UNDER SECTION 436 OF THE CODE OF

CRIMINAL PROCEDURE, 1973 ON BEHALF OF THE
APPLICANT/ACCUSED ABOVE-MENTIONED SEEKING BAIL IN THE
ABOVEMENTIONED F.I.R.

MOST RESPECTFULLY SHOWETH. –

1. That the present application is being filed by the Applicant/Accused

(“Applicant”) abovenamed, under section 436 of the Code of Criminal
Procedure, 1973 (“Cr.P.C.”), before this Hon’ble Court seeking bail in
connection with F.I.R. No. 199 of 2022 dated 24.10.2022 (“F.I.R.”), P.S.
- Defence Colony. The F.I.R. has been registered for the alleged offences
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under Section 279 and 304A of the Indian Penal Code, 1860 (“I.P.C.”),
which are bailable in nature.

2. It is submitted that the Applicant has not moved earlier before this
Hon’ble Court for the grant of bail nor any other application is pending
before any other Court, in connection with the instant F.I.R. seeking
identical reliefs.

3. That the Applicant above-named is a law-abiding and peace loving citizen

of India currently residing at the address as mentioned-above, along with
his family members The Applicant belongs to a respectable family having
deep roots in the society and is having no criminal antecedents that may
attract any legal action.

4. That the instant F.I.R. at P.S.: Defence Colony was arbitrarily instituted at
the behest of the Informant namely Akash ("Informant”) for the alleged
offences under section 279 and 304A of the I.P.C. The facts necessitating
the present application are stated hereunder for the kind consideration of
this Hon’ble Court and as mentioned in the FIR are as follows: –

(a) On 23.10.2022, the Informant along with his friend Hemraj

(“Deceased”) was going to his house at about 11:30 P.M. after
completing their respective daily work from Defence Colony, New
Delhi. That both were going via the Ring Road towards the route of
Moolchand to South Extension.

(b) While they were crossing the road 50 metres before the red light
near Andrewas Ganj Fly Over, one bullet motorcycle bearing no.-
DL3 SEM 3666 was coming from the Moolchand side at high
speed and hit Hemraj.

(c) Thereafter the Informant and the motorcycle rider i.e., the
Applicant herein took Hemraj to the Safdarjung Hospital. Later on,
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the Informant informed the Deceased’s brother namely Narendra

Kumar that Hemraj died during course of treatment.
A True Photo Copy of the F.I.R. is annexed hereto and marked as
ANNEXURE-A/1 to the present application.

5. It is humbly submitted that from the bare perusal of the instant F.I.R., it is
understood that the Applicant by driving his motorcycle in a rash and
negligent manner had dashed against the deceased namely Late Hemraj
whereupon the Applicant together with the Informant took the deceased to
the Safdarjung Hospital where he was scummed to death.

6. That it is humbly submitted and stated that the Applicant is innocent and
has falsely been implicated by way of the instant F.I.R. basis motivated
and false information without there being any cogent proof of the same. It
is further submitted that the Applicant has neither committed nor illegally
omitted to do anything that constitutes an offence under the eye of law.

7. That it is humbly submitted and stated that the deceased himself was under
the influence of intoxication and in a negligent manner had suddenly
jumped before the vehicle in order to cross the road despite there being no
crossing for the pedestrians nor footpath at the place of the said
unfortunate incident. It is further submitted that the negligent act of the
deceased in no manner could have been apprehended by the Applicant in
any scenario despite taking all measures as a prudent man could have
resorted to. Further, the Applicant despite having sustained injury himself,
in bonafide and being a responsible citizen had taken the deceased to the
hospital without any delay where at first hand he was attended by the
concerned doctors and other staffs.

8. That it is humbly submitted and stated that the Applicant is holding a

proper and valid driving licence and the vehicle/motorcycle is also duly
insured and is fit to commute on road. It is further submitted that at the
stated time of unfortunate incident, the Applicant was not driving his
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motorcycle in rash and negligent manner as being alleged in the F.I.R. and
the speed of the vehicle was within the speed limit.

9. That the relevant provisions as incorporated under sections 279 and 304A
of the I.P.C. is replicated hereinbelow for the kind consideration of this
Hon’ble Court. –

“279. Rash driving or riding on a public way. – Whoever drives

any vehicle, or rides, on any public way in a manner so rash or
negligent as to endanger human life, or to be likely to cause hurt
or injury to any other person, shall be punished with imprisonment
of either description for a term which may extend to six months, or
with fine which may extend to one thousand rupees, or with both.
….
…….

[304 - A. Causing death by negligence. – Whoever causes the

death of any person by doing any rash or negligent act not
amounting to culpable homicide, shall be punished with
imprisonment of either description for a term which may extend to
two years, or with fine, or with both.]”

10. That from the perusal of the aforesaid sections, evidently, the common
ingredients of both the stated sections are that the act or omission of the
accused must be rash and negligent. Further, rashness and negligence on
the part of the driver as under section 279 of the I.P.C. cannot be solely
equated with the speed of the vehicle. In Mohammad Saffique vs State of
Orissa, 1983 CrLJ 535, the Hon’ble Orissa High Court had observed that
the relationship between speed and rashness or negligence depends upon
the place and time. In a scenario where the obstructions from vehicles or
pedestrians are not present, it cannot be said that driving in speed would
amount to rashness or negligence.

11. That it is humbly submitted and stated that to impose a criminal liability
under section 304A of the I.P.C., the essentials are as under. –
(a) There must be death of the person in question.
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(b) The accused must have caused such death.

(c) That such act of the accused was rash and negligent and that it did
not amount to culpable homicide.

Therefore, in order to make out a case under section 304-A of the I.P.C., it
is necessary that the death of the deceased should have been on account of
the direct consequence of rash and negligent act of the accused and that
such act must be the proximate and efficient cause without the
intervention of another’s negligence.

12. That taking into consideration the aforesaid submission, in the present
case, despite there being no crossing or footpath, the Deceased under the
influence of intoxication had in a negligent manner tried to cross the road
and in the said process he dashed into the vehicle of the Applicant. It is
further submitted that the Applicant in all prudence could not have
apprehended the presence of the deceased at the place of incident.

13. That in relation to the unfortunate incident, the investigating officer had
called the Applicant on multiple occasions for procuring information and
taking his statement in the matter. That despite tendering all the
information and assistance possible, the Applicant was informed that
summon in his name were received in the captioned matter.

14. As such, the sections noted in the F.I.R. and the summons issued to the
Applicant are sections 279 and 304A of the I.P.C. It is pertinent to note
that the criminal offence under the stated sections are classified as an
offence which is bailable in nature. Further, it is a well settled principle
laid down by the Hon’ble Supreme Court in Rasikalal vs Kishore
Khanchand Wadhwani, AIR 2009 SC 1341 that the right to claim bail
granted by section 436 of the CrPC in a bailable offence is an absolute and
indefeasible right. In bailable offences, there is no question of discretion in
granting bail as the words of section 436 are imperative.
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15. That it is submitted that the consistent cooperation meted out by the
Applicant to the concerned investigating authority, there can be no
apprehension that the Applicant would abscond or otherwise make himself
unavailable for the investigation or trial. The Applicant remains ready and
willing to continue to cooperate further with the police with their
investigation. Moreover, there can be no apprehension that the Applicant
would hamper the investigation proceedings or trial in any manner
inasmuch as the Applicant till date has cooperated with the investigating
authorities to the fullest extent and there is nothing to suggest that the
Applicant has abused the trust placed in him by the investigating
authorities or this Hon'ble Court.

16. It is further submitted that denial of bail in a bailable offence would

amount of a travesty of justice and such pre-trial incarceration of the
Applicant would frustrate the very objective of criminal jurisprudence that
"bail is the rule and jail is the exception".

17. The Applicant undertakes to abide by any directions or conditions

imposed by this Hon'ble Court in granting him bail. The Applicant further
undertakes to furnish sound and reliable surety, if required, to the
satisfaction of this Hon'ble Court, if directed to be released on bail by this
Hon'ble Court.

18. It is a trite law that this Hon'ble Court has the power to grant bail
especially in cases involving allegations pertaining to bailable offences
where it is satisfied that the applicant is unlikely to abscond or influence
any witness in the case or otherwise misuse his liberties while on bail.
Notwithstanding the falsity of the underlying complaint/ FIR, none of the
offences therein require the custody of the Applicant for investigation or
interrogation in the matter. The requisite evidence of documentary nature
on the underlying alleged offences is already in the possession of the
police/ prosecution in the captioned matter.
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19. The Applicant humbly craves leave of this Hon'ble Court to raise such
further grounds, as may be available to the Applicant under law, during
the course of hearing of the instant Application.

20. The Applicant has preferred the present Application bona fide and in the
interest of justice.
PRAYER

It is therefore humbly prayed that considering the aforementioned facts and

circumstances, this Hon'ble Court may graciously be pleased to. –

(i) Allow the present bail application and grant bail to the
Applicant/Accused in connection with FIR No. 199 of 2022 dated
24.10.2022, P.S. – Defence Colony subject to directions and on terms
and conditions as this Hon'ble Court may deem fit and proper; and/or
(ii) Pass any such other order(s) or direction(s) as it may deem fit and
proper in the interest of justice.

APPLICANT
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IN THE COURT OF SH. RISHABH TANWAR,

THE HON’BLE METROPOLITAN MAGISTRATE
SAKET COURTS COMPLEX AT NEW DELHI

ANTICIPATORY BAIL APPLICATION NO. _____ OF 2023

IN THE MATTER OF. –

RISHAV RAJ ….APPLICANT/

ACCUSED
- VERSUS -
STATE OF NCT DELHI …RESPONDENT

AFFIDAVIT

I, Rishav Raj aged about 33 years, son of Rajesh Kumar resident of House No.
237, New Mangla Puri, Mehrauli, South Delhi, Delhi – 110030, do hereby
solemnly affirm and declare as under. –

1. That I am the Applicant in the above noted case and as such, am well
conversant with the facts and circumstances of the present case and hence
competent to swear the present affidavit.

2. That the accompanying application for seeking bail under section 436 of the
CrPC has been drafted by my counsel under my instructions and the
contents of the same have been read over and explained to me which are
true and correct as per my knowledge.

3. That the contents of the same are not repeated herein for the sake of brevity.

4. That the annexures are true/photocopy of its respective original.

DEPONENT
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VERIFICATION:

Verified at New Delhi on this 14th day of July, 2023 that the contents of
the above affidavit are true and correct to the best of my knowledge and belief
and nothing material has been concealed therefrom.

DEPONENT