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Sunday 19 January 2020

Salman Stands Better Chance In Higher Courts

Study the pronouncements by the Supreme Court in Sanjeev Nanda and Alister Anthony Pareira cases to know why and how

Is Salman Khan guilty? Going by the trial court verdict, he is. Is the conviction final? No, it is not. The conviction has to pass the scrutiny of higher judiciary on points of law. Till confirmed by the highest court, he will always stand a chance of getting a lesser punishment.

And if his statement that he was not driving the vehicle or that he was not drunk is proved to be false beyond reasonable doubts, he could be charged with perjury — lying on oath. Hence all the possibilities exist in the case and it would be foolish to treat the case as final.

There are two cases of similar nature that can help throw light on the Salman case. One is of Sanjeev Nanda of January 1999 and another is the Alister Anthony Pareira case of 2006. In the first case, six people were killed and one injured, and in the second seven people were killed and eight injured.

The trial court had, in the Sanjeev Nanda case, convicted the accused under Section 304 Part II* and other sections and sentenced him to five year in jail. The High Court, on appeal, converted conviction into Section 304A with sentence of two years. The Supreme Court upheld the validity of the trial court, but retained the sentence of two years awarded by the High Court. It termed Sanjeev Nanda’s action of running away as “highly reprehensible”. The court mandated two years of active community service and additional compensation for the victims.

The apex court’s rationalisation came in the following way:

Convicts in various countries, now, voluntarily come forward to serve the community, especially in crimes relating to motor vehicles. Graver the crime, greater the sentence. But, serving the society actually is not a punishment in the real sense where the convicts pay back to the community which he owes. Conduct of the convicts will not only be appreciated by the community, it will also give a lot of solace to him, especially in a case where because of one’s action and inaction, human lives have been lost.

It further observed:

In the facts and circumstances of the case, where six human lives were lost, we feel, to adopt this method would be good for the society rather than incarcerating the convict further in jail. Further sentence of fine also would compensate at least some of the victims of such road accidents who have died, especially in hit and run cases where the owner or driver cannot be traced.

Pareira was treated a little differently. The trial court left him cheap and sentenced him to suffer simple imprisonment of six months with a fine of Rs 5 lakh. The court convicted him under Sections 304A and 337 of IPC. The clause of culpable homicide not amounting to murder under Section 304 Part II* was not imposed by the prosecution.

The Bombay High Court took suo motu cognisance of the case and issued notice to the State of Maharashtra, the appellant, and to the heirs of the deceased and also to the injured persons. The State of Maharashtra preferred criminal appeal challenging the acquittal and also seeking enhancement of the sentence.

The High Court set aside the acquittal under Section 304A of the IPC and convicted him for offences under Section 304 Part II, Section 338 and Section 337 and awarded total sentencing of three years in jail.

The apex court upheld the decision of the High Court and observed:

As a matter of fact, (the) High Court had been quite considerate and lenient in awarding to the Appellant sentence of three years for an offence under Section 304 Part II Indian Penal Code where seven persons were killed.

In the light of these judgments we need to discuss how fair or light is the trial court’s judgement in the Salman Khan case. Charging him with culpable homicide is something that can be debated. Did he have the knowledge that his act could lead to death of people? This depends on how we take the context. In the Nanda case, it was easy, given the way he ran away and tried to destroy evidence. Khan did stay on the spot after the accident at the site, was saved from the mob by a witness; he later surrendered before the police.

The apex court observed in the Nanda case:

To make out an offence punishable under Section 304(II) of the IPC the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew such act of his is likely to cause death.

Needless to say that this provision was added later in the Salman case.

Now coming to the most important part of community service that shows the contrite nature of the accused, Salman has already been doing social service. Critics say he did this to soften the law enforcement upon him. But this can’t be held against him.

The courts have been trying to use high profile cases to set examples for others to be careful while driving. The Supreme Court observed in the Anthony Pareira case in January 2012:

(The) World Health Organisation in the Global Status Report on Road Safety has pointed out that speeding and drunk driving are the major contributing factors in road accidents. According to National Crime Records Bureau (NCRB), the total number of deaths due to road accidents in India every year is now over 1,35,000. NCRB Report also states drunken driving as a major factor for road accidents. Our country has a dubious distinction of registering maximum number of deaths in road accidents. It is high time that law makers revisit the sentencing policy reflected in Section 304A Indian Penal Code.

Most fans just wanted to see or touch him during court proceedings. Of course, law has no regard for such sentiments, and rightly so.
Most fans just wanted to see or touch him during court proceedings. Of course, law has no regard for such sentiments, and rightly so.

The prosecution side wanted to make the case of film star Salman Khan an example. Is it right to make an example out of someone if you are failing in your duty to create awareness about road safety and drunken driving? That a higher sentencing will act as a deterrent is not a claim based on a foolproof survey or academic study.

Khan’s case is a simple one of rash and negligent driving under the influence of liquor. That he did not have a valid license has compounded his crime. But to assign other motives would not be correct. We also have to find out if his celebrity status has come in the way of a lighter punishment.

Also in question is whether the prosecution side has been coloured due to media trial. The question as to whether the common man will get justice or Khan would get away due to celebrity status presupposes the guilt. So let us not take the trial court’s verdict as final. One may find oneself trapped in the stand taken if the verdict is upturned or the sentence reduced.

The courts have held that each case is an individual case as things change with the thinking of society. Will society move from being liberal to being conservative or will it move from being conservative to being a liberal? Failure of the State to create a better system should not lead to suffering of individuals. If you can’t track most hit-and-run cases, it does not mean you will impose severe punishment on those who are caught.

The author, a senior journalist and founder-director of Debating India Foundation, is also a lawyer.

Sudesh Verma
Sudesh Verma
Member of the BJP's national media team, senior journalist and founder of Debating India Foundation

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