By Amrita Dasgupta, South Calcutta Law College.

The number of pending cases, piled up with the Indian judiciary, is legendary. It has been estimated that it would take at least 320 years to clear off the total backlog of 31.28 million cases pending with various courts across the country.[1]

After 13 years of the prolonged court proceedings of the “2002 hit-and-run” case, the convict Salman Khan was almost sent behind the bars for a 5 year term by the Session’s Court along with a fine of INR 25,000. However, following this verdict, an appeal was being made to the Bombay High Court that challenged the verdict of the Session’s Court. The Bombay High court then granted the actor an interim bail for two days. After the lapse of the interim bail period, the appeal was under consideration and the punishment was set aside granting a permanent bail till the next hearing or order, thereby keeping the case open again.

The “2002 hit and run” case caused a lot of hue and cry amongst the commoners, especially because of the people involved and the nature of the crime. It was a September night when the actor’s rashly driven Toyota Land Cruiser bearing No.MH­01­DA­32, ran over a footpath in front of the American Express Cleaners’, killing one person and injuring four others and ramming the shutter of the laundry. According to the initial investigation report, the actor was found driving the car under the heavy influence of alcohol and thereby he was charged under the Sections 304 II, 337, 338 of the Indian Penal Code and Sections 134 (A) (B) r/w 187, 181 and 185 of the Motor Vehicles’ Act, 1988.

Precedents as used in the case were Sanjeev Nanda and Alistair Pereira cases. In the Sanjeev Nanda case, where 6 persons were killed by an accident, he was ordered by the Supreme Court to give Rs. 50 lakh as fine and do social service for a year. Thus this case was taken as a precedent by Salman’s advocate, considering the fact that he did social service for many years and continuing to do so. Also, in Pereira case 7 persons were killed and 14 injured and it caused 3 years of imprisonment.

The points that were proved in the Sessions’ Court are:

  • The statement made by the then constable Ravindra Patil, who expired in 2007, under section 33 of the Indian Evidence Act, as recorded in the Court of Additional Chief Metropolitan Magistrate is admissible and relevant
  • The 28th September night, the actor’s Land Cruiser was negligently and rashly driven under the influence of liquor, with a knowledge that people sleep in the footpath near the American Express Laundry near Bandra and also that such act of driving a car under the influence of alcohol would likely cause death and thus caused death of a person which is punishable under section 304 II of the Indian Penal Code
  • The same date, place and time during which the car was driven negligently and rashly as to endanger human life and personal safety of others and caused simple hurt to two persons which attracts the offence punishable under Section 337 of IPC
  • The same date, time and place when the car was driven rashly and negligently and caused grievous hurt to two people punishable under Section 338 of IPC
  • While driving on the same time, date and place, the accused was not holding any valid license, as confirmed by RTO, attracts offence punishable under Section 3(1) r/w 181 of Motor Vehicles’ Act
  • On the same date, time and place, the accused did not act as a reasonable person by aiding the injured to reach the nearest hospital or by providing any medical support, thus committing an offence under Section 134 and 187 of Motor Vehicles’ Act
  • The accused failed to provide information to the police about the incident, thereby committing offence under Section 187 of Motor Vehicles’ Act
  • The blood test confirmed that traces of alcohol exceeding 30 mg per 100 ml was found in the blood of the accused which is enough to make a person incapable of handling the vehicle

But are the facts of the precedents and this case identical? The blood sample of the actor had alcohol and according to Justice Thipsay of Bombay High Court, there is no law which terms the accident caused due to consumption of alcohol as culpable homicide under Section 304 II. Section 304 II only says that a person responsible for reckless or negligent or rash act that causes death which he has knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and death was likely to be caused. Justice Thipsay also adds “on the basis that there is sufficient evidence saying accused was driving, several other conditions have to be taken into consideration”.[2] But isn’t driving under the influence of alcohol negligence on the part of the actor? Driving after consumption of alcohol is likely to cause death and also risks the life of the pedestrians as well as the people who sleeps in the footpath.

The loopholes in the investigation and trial of the case which is responsible for the snail speed[3]  and bail of the actor in this particular case are:

  • Kamal Khan, Salman’s cousin, who was with him that night at the time of accident, was not tracked the same day when Salman was arrested. Rather, he was later traced at an international airport and his statement was recorded on 4th October, 2002. Kamal Khan also was not in the list of witnesses.
  • Death of Ravindra Patil, the prime eye-witness
  • Sudden intrusion of Ashok Singh, who admitted that he was on the gear, when the accident happened. This raised a reasonable doubt.
  • Accident did not happen due to over speed, it happened due to bursting of the left tyre, though the investigation team confirmed that there was no problem with the vehicle
  • The finger print evidence of the Forensic Experts was not clear
  • The photos of the vehicle at the accident spot were not taken which would have cleared the doubts that the vehicle was on the footpath. Also the parking tag was not on record at JW Marriott, which is prime evidence in this case.
  • Copy of judgment not provided to the accused
  • Does his act drag Section 304 II? Bombay High Court feels the necessity of more consideration on applicability of this section

Terming the High Court’s decision “justified and as per law”, Justice Kalimullah Khan, retired judge of Allahabad High Court, said, “Section 389 of Cr.P.C. confers the power on the appellate court to suspend the sentence awarded to the accused appellant and to release the appellant on bail. It provides that pending any appeal by a convicted person, the appellate court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appeal against be suspended and, also, if he is in confinement, that he be released on bail or on his own bond.”[4] And in this case Salman was released on a bail bond of Rs. 30,000.

The acuity of Salman’s advocate lies in the way he used the loopholes in the case for Salman’s bail, which is commendable. There is no doubt about the fact that justice was not proffered to the poor section. There was enough room for preparing a strong compact case against the accused, but the prosecution failed to do so.

The reactions to the bail of Salman Khan have been a blend of excitement and grief. When five of the families suffered a huge loss on their part, the fans of the actor are delighted on his release. The most abominable in all the reactions were the derogatory comments of singer Abhijeet and jewellery designer Farah Khan Ali. A district court at Bihar ordered to file FIR against both of them.

Also, there is no denying of the fact that the case has been delayed for long. The colossal losses beared by the families of the victims need to be compensated. They have been waiting for more than 13 years now for the justice and as they say, justice delayed is justice denied.