IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.240 of 2023 Date of Decision: 18.05.2026 __________________________________________________________________________ State of Himachal Pradesh ……...Petitioner Versus Rahul Malhotra …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? Yes. For the petitioner: Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocates General with Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General, for the petitioner-State. For the Respondent: Mr. Naresh Verma, Advocate. _________________________________________________________________________ Sandeep Sharma, J. (Oral) Being aggrieved and dissatisfied with order dated 18.01.2023 passed by learned Sessions Judge, Mandi, District Mandi, Himachal Pradesh, in CIS Reg. No.40 of 2020, titled as State of Himachal Pradesh Vs. Rahul Malhotra, whereby respondent-accused (in short “accused”), came to be discharged for his having allegedly committed offence punishable under Section 304-AA of Indian Penal Code, petitioner-State has approached this Court in the instant proceedings, filed under Section 397 read with Section 401 of Cr.P.C, praying therein to set aside the afore order. 2. Precisely, the facts of the case, as emerge from the pleadings as well as other material adduced on record by the respective parties are that 2 police presented challan in the competent Court of law against the accused for his having allegedly committed offences punishable under Sections 279, 337, 338, 304-A and 304-AA of Indian Penal Code and Sections 192 & 192- A of Motor Vehicle Act. Prosecution, in afore charge sheet, alleged that on 29.12.2019 at about 11:30 p.m., accused, who at the relevant time was driving a taxi bearing registration No.HP-02-5197 i.e. taxi, lost control of the vehicle, as a result thereof, same fell into the river. One occupant of the vehicle died on the spot and other occupants sustained injuries. During medical examination of the accused, who was driving the vehicle, it transpired that he was intoxicated. His blood and urine samples were sent for analysis. 72.62 mg% alcohol was found in his blood and 260.48mg% alcohol was found in his urine. In afore background, Section 304-AA of Indian Penal Code was added. Though court below, being prima facie satisfied that accused was driving the ill-fated vehicle rashly and negligently, proceeded to frame charge against him under Sections 279, 337, 338, 304-A of Indian Penal Code, however, it discharged him under Section 304-AA of Indian Penal Code on the ground that mere intoxication may not be sufficient to invoke Section 304-AA of Indian Penal Code. In afore background, petitioner-State has approached this Court in the instant proceedings, praying therein to set aside the afore order, thereby discharging the accused under Section 304-AA of Indian Penal Code. 3. Mr. Rajan Kahol, learned Additional Advocate General for the petitioner-State, while making this Court peruse provision of Section 304- AA of Indian Penal Code, vehemently argued that to invoke aforesaid provision of law, it is sufficient for the prosecution to prove that at the time 3 of alleged accident, driver of the ill-fated vehicle was intoxicated. He submitted that question with regard to accused being under the influence of liquor may not be relevant at the stage of framing of charge, rather the same can be determined by the Court below in totality of evidence led on record by the respective parties. He submitted that state of intoxication has not been defined anywhere in the Act, hence the same is required to be gathered from Section 185 MV Act, which clearly provides that whoever, while driving or attempting to drive a motor vehicle, (a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood as 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. Mr. Kahol, submitted that presumption of drunkenness is to be taken from the statute as provided under Section 185 MV Act, as such, the impugned order qua, the discharge of the accused for his having allegedly committed offence punishable under Section 304AA IPC, is liable to be set aside. 4. To the contrary, Mr. Naresh Verma, learned counsel representing the respondent, while supporting the impugned order passed by court below, thereby discharging the accused under Section 304-AA of Indian Penal Code, submitted that once percentage of the liquor in blood 4 sample was found less than 80 mg per 100 ml, no illegality can be said to have been committed by the learned Court below, while discharging the accused for the reason that by now it is well settled that person having quantity less than 80mg per 100ml cannot be said to have lost his mental faculties to the extent that his driving skills are impaired. While referring to judgment passed by Hon’ble Apex Court in Iffco Tokia General Insurance Vs. Pearl Beveraeges Ltd, AIR 2021 Supreme Court 2277:AIROnline 2021 SC 2011, Mr. Verma submitted that mere consumption of liquor is not sufficient, rather to establish an offence under Section 304-AA of Indian Penal Code, it must be proved that person was under the influence of liquor. He submitted that report, if any, given pursuant to the blood analyzer test may not be sufficient to conclude that person concerned was under the influence of liquor. He submitted that since the quantity of alcohol found in the blood of the accused was 72.62 mg%, which was below the prescribed limit for establishing a state of intoxication, learned Court below rightly discharged him under Section 304-AA of Indian Penal Code. While referring to the opinion rendered by the Medical Officer, Mr. Verma further submitted that though Medical Officer had noticed quantity of alcohol, but at no point of time, rendered his final opinion that accused was under the influence of liquor. 5. Having heard learned counsel for the parties and perused material available on record vis-a-vis reasoning assigned in the impugned order passed by the learned Court below, this Court finds that to attract Section 304-AA of Indian Penal Code, prosecution is under obligation to prove that public service vehicle was being driven in a state of intoxication, 5 as a result thereof, one person or more lost their lives. At this stage, it would be apt to take note of Section 304-AA of Indian Penal Code:- “304-AA. Causing death or injury by driving a public service vehicle while in a state of intoxication.- Whoever, while in a state of intoxication, drives or attempts to drive a public service vehicle and causes the death of any person not amounting to culpable homicide, or causes any bodily injury likely to cause death, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, as if the act by which death or bodily injury is caused, is done with the knowledge that he is likely by such act to cause death or cause such bodily injury as is likely to cause death. Explanation. -"Public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage and stage carriage " 6. Admittedly, in the instant case, ill-fated vehicle was a taxi, but question, which needs to be determined, is that “whether merely on account of consumption of liquor, accused can be said to be under the influence of intoxication or not?” Though it is not in dispute that at the time of alleged accident, vehicle in question was being driven by the accused under the influence of liquor, but whether, on account of his being under the influence of liquor, his mental faculties were impaired to the extent that his driving skills were effected is the question to be decided by the Court below in totality of evidence led on record by the respective parties. 7. 7. Though in Iffco Tokia General Insurance (supra), Hon’ble Apex Court, while taking note of Manual for Physicians in National Drug Dependence Treatment Centre, All India Institute of Medical Sciences, New Delhi, held that if the quantity of alcohol in the blood is 100 or more mg./dl (100 ml), it leads to vision getting blurred, the gait become unsteady 6 and the coordination gets affected, but such changes can occur only when someone is already under the influence of alcohol by that time. Hon’ble Apex Court observed that judgment of the drinker as well as his driving ability gets affected even where the quantity of alcohol in the blood is 80 mg or more per 100 ml of the blood, but such finding/observation, if any, of Hon’ble Apex Court cannot be said to be sufficient to conclude the innocence, if any, of the accused with regard to his having committed offence punishable under Section 304-AA of Indian Penal Code, especially when it is not in dispute that at the time of accident, he was under intoxication. 8. Leaving everything aside, bare perusal of Section 304-AA of Indian Penal Code clearly reveals that whoever, while in a state of intoxication, drives or attempts to drive a public service vehicle and causes the death of any person not amounting to culpable homicide, or causes any bodily injury likely to cause death, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to seven years. Once it is not in dispute, rather stands admitted that on account of medical opinion rendered by the doctor that at the time of accident, accused, who at the relevant time was driving the offending vehicle, was under intoxication and while doing so, ill-fated vehicle fell into river, as a result thereof, one person lost his life, there was no occasion, if any, for the learned Court below to conclude that no case much less under Section 304-AA of Indian Penal Code is made out against the accused. At the time of framing of charge or to consider prayer, if any, for discharge made at the behest of accused, learned Court below at that relevant stage 7 was only required to see “whether at the time of accident, accused, who was driving the offending vehicle, was under intoxication or not? If yes, whether, on account of his driving vehicle in a state of intoxication, occupant(s) of the public vehicle died or not? 9. Admittedly, in the case at hand, all the ingredients of Section 304-AA of Indian Penal Code are met when accused was in a state of intoxication as is evident from the report submitted by the Medical Officer, who immediately after the alleged accident, conducted his medical examination. It is also not in dispute that in the alleged accident, which allegedly occurred on account of rash and negligent driving of the accused, one person died and other sustained injuries. Otherwise also, this Court is of the view that “whether on account of intoxication, mental faculties of the accused were impaired or not?” is a question to be decided by the learned Court below in totality of evidence led on record by the respective parties. Doctor, who had conducted medical examination, is the best person to state/depose with regard to impairment of mental faculties of the accused at the relevant time on account of his having consumed liquor to the extent of percentage given in the MLC. 10. Consequently, in view of the discussion made hereinabove as well as law taken into consideration, this Court finds merit in the present petition and accordingly, the same is allowed. Impugned order dated 18.01.2023 passed by learned Sessions Judge, Mandi, District Mandi, is quashed and set aside and learned Court below is directed to proceed with the trial against the accused under Sections 279, 337, 338, 304-A, 304-AA of Indian Penal Code and Sections 192 & 192-A of Motor Vehicle Act forth. 8 Any observation/finding returned in the instant judgment is only for the purpose of disposal of the present petition and shall have no bearing on the final outcome of the trial, which shall be decided by the learned Court below in totality of evidence as well as evidence led on record by the respective parties. (Sandeep Sharma) Judge May 18, 2026 (sunil)