Madras High Court
Nithin vs State Rep By Its on 1 February, 2022
Crl.R.C.No.939 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 1.2.2022
CORAM
THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.R.C.No.939 of 2019
Nithin Petitioner
Vs.
State Rep by its
Inspector of Police,
TIW (East) Police Station,
Coimbatore. Respondent
PRAYER: Criminal Revision Case is filed under Sections 397 & 401
of Criminal Procedure Code to set aside the judgment passed in Crl.A.149
of 2019 dated 18.07.2019 on the file of the I Additional District-cum-
Sessions Court, Coimbatore confirming the judgment passed in CC.No.18
of 2017 dated 10.04.2019 on the Judicial Magistrate No.VIII, Coimbatore.
For Petitioner : Mr.V.Karthik, Sr.Counsel for
Mr.S.Saravanan
For Respondent : Mr.S.Sugendran, GA (Crl.side)
Mr.Guruprasad, Amicus Curiae
(appointed to assist the legal heirs of the
deceased)
https://www.mhc.tn.gov.in/judis 1
Crl.R.C.No.939 of 2016
ORDER
This Criminal Revision Case has been filed against the judgment of
the I Additional District and Sessions Judge, Coimbatore made in
CA.No.149 of 2019 dated 18.07.2019, dismissing the Appeal and thereby
confirming the conviction and sentence imposed by the learned Judicial
Magistrate No.VIII, Coimbatore dated 10.04.2019 made in CC.No.18 of
2017 convicting the petitioner for the offence under Sections 279 and
304(A) IPC.
2. Brief facts of the case are as under:-
i) On 22.10.2016 at about 17.30 hours, the petitioner/accused, who
was driving his motorcycle bearing registration No. No.TN45 BH 2984
from west to east direction in Coimbatore-Avinashi Road near
Chinniyampalayam, opposite Mariamman Temple water tank, had dashed
against one Arukutti, who was crossing the said road from north to south
direction and caused the accident.
ii) In the said accident, the victim Arukutti had sustained grievous
injuries and later succumbed to the injuries.
Crl.R.C.No.939 of 2016
iii) On the complaint given by PW2, nephew of the victim, a case in
Crime No.704 of 2016 was registered by the respondent police for offence
punishable under Sections 279 and 304A IPC. The respondent-police,
after completion of investigation, filed the final report against the
petitioner/accused for offence punishable under Sections 279 and 304A
IPC before Judicial Magistrate VII, Coimbatore.
iv) The case was taken up on file in C.C.No.18 of 2017 and when
questioned, the petitioner/accused had denied the charges.
v) The prosecution, in order to prove the offence against the accused,
had examined P.Ws.1 to 7 and marked Exs.P1 to P9 through the relevant
witnesses.
vi) As per the prosecution, PW2, Parthiban is a relative of the
deceased Arukutti and on 22.10.2016 at about 5.30 pm, PW2 and the
deceased Arukutti had crossed the Coimbatore-Avinashi Road at
Chinniyampalayam, Opposite Mariamman Temple from north to south
direction and at that time, the petitioner/accused, who was driving a
motorcycle in the said road from west to east direction in a rash and
negligent manner, had dashed against the deceased.
Crl.R.C.No.939 of 2016
vii) Thereupon, PW2 had rushed to the place of occurrence and had
found that the victim was lying down severely injured. PW2 had also
noted the registration number of the motorcycle and identified the
accused. In the accident, the accused had also sustained injuries.
viii) PW2 had sent the injured Arukutti in KGM hospital ambulance
to KMCH Hospital and the petitioner/accused was sent to Muthu Hospital
in the Ambulance belonging to that Hospital. On the same day, viz.,
22.10.2016 at 7.30 pm, the Doctors declared the death of the victim
Arukutti. After informing the same to the relatives of the deceased, PW2
had gone to the respondent police station on 23.10.2016 at about 00.30 hrs
and gave Ex.P1/complaint.
ix) On receipt of Ex.P1/complaint, one Rajamani, Sub Inspector of
Police had registered a case in Crime No.704/2016 dated 23.10.2016 under
FIR Ex.P3. The Sub Inspector of Police, after registration of the case on
23.10.2016, placed the records before PW7/Vijayakumari, the then
Inspector of Police for investigation.
x) PW7 took up the investigation and on the same day examined and
recorded the statement of PW2/Parthiban, who is a witness to the
Crl.R.C.No.939 of 2016
occurrence. On the same day at about 6.30 am, PW7 visited the scene of
occurrence and prepared Ex.P2/observation mahazar and Ex.P4/Rough
Sketch in the presence of PW2/Parthiban and PW4/Thirumoorthy and
recorded their statements. Thereafter, PW7 had visited KMCH Hospital
and obtained Ex.P5/Accident Register and Ex.P6/Death Intimation Report.
On the same day at about 8.00 am, PW7 conducted inquest on the body of
the deceased in CMC hospital Coimbatore, in the presence of
PW1/Vengidanaidu, PW3/Ragu, PW5/Kanagaraj and PW6/Boopathi, who
are relatives of the deceased and subsequently, PW7 had examined them
and recorded their statements. Ex.P7 is the inquest report. Thereafter,
PW7 sent the body for post mortem on the same day at 11.40 am.
xi) Dr.Kulanthaiandi conducted autopsy on the body of the deceased
at CMC Hospital, Coimbatore. Ex.P8 is the post mortem certificate. On
23.10.2017, PW7 had examined the Doctor, who conducted autopsy and
recorded his statement.
xii) On 24.10.2016, PW7 sent the motorcycle of the accused for
inspection and the Motor Vehicle Inspector, who had inspected the vehicle
on the same day, had given his Inspection Report/Ex.P9. PW7 had
Crl.R.C.No.939 of 2016
examined the Motor Vehicle Inspector on 24.10.2016 and recorded his
statement. Thereafter, on 24.10.2016, PW7 arrested the accused, who was,
later, released on bail on the same day.
xiii) Thereafter, she had completed the investigation and filed the
final report against the accused under Section 279, 304A IPC.
xiv) On completion of examination of the prosecution witnesses,
when the accused was questioned under Section 313(1)(b) Cr.PC in respect
of incriminating materials against him, the accused denied the same,
however, no evidence was let in by him and no documents were marked on
his side.
xv) The Trial Court found the petitioner guilty for the offence under
Sections 279 and 304A IPC and sentenced him to undergo simple
imprisonment for a period of three months and to pay a fine of Rs.500/- in
default to undergo simple imprisonment for a further period two weeks for
the offence punishable under Sections 279 and sentenced him to undergo
simple imprisonment for a period of one year and to pay a fine of
Rs.2,000/- in default to undergo simple imprisonment for a further period
of one month under section 304A IPC.
Crl.R.C.No.939 of 2016
xvi) As against the conviction and sentence, the petitioner filed
Criminal Appeal No.149 of 2019 before the learned I Additional District
and Sessions Judge, Coimbatore and the Appellate Court, by its judgment
dated 18.7.2019, dismissed the Appeal by confirming the conviction and
sentence, aggrieved against which, the present Criminal Revision Case has
been filed by the petitioner.
3. The sum and substance of the arguments made by the learned
Senior Counsel Mr.V.Karthik representing the petitioner is as under:-
i) The petitioner was aged about 19 years at the time of the occurrence
and he was undergoing B.E. Course. The accident had occurred on a
Highway, at a place where there was centre median running for about 2 to
3 kms. It had occurred at a place where there was no zebra crossing and
the victim had attempted to cross the road by scaling the centre median.
ii) Though there had been some lapses on the part of the petitioner in
driving the vehicle with caution, the entire blame cannot be fastened on the
petitioner. There had been some amount of contributory negligence on the
part of the victim, a 70 years old man, in crossing the road on a Highway
where there was no pedestrian/zebra crossing, by scaling the centre
Crl.R.C.No.939 of 2016
median.
iii) The petitioner was only a college student at the time of accident
and not a professional driver and he was also not found to be under the
influence of alcohol or any sort of intoxication. In fact, the petitioner was
also severely injured in the accident.
iv) Now the petitioner has completed his graduation and has recently
secured a job in a multi national company and could not cope up with his
regular day to day affairs due to the ordeal of the criminal proceedings and
the conviction thereupon.
v) Though there are several arguable points, the petitioner is now
prepared to compensate the legal heirs of the deceased by paying a sum of
Rs.5,00,000/- as ex gratia payment, exclusive of other
amount/compensation which they are entitled to receive under any law.
vi) Though it is a case of road accident, there is no absolute bar for
invoking the provisions of Probation of Offenders Act, 1958 and to release
the petition after admonition.
vii) Though the petitioner was below 21 years, both the courts below
have not come forward to extend the benefit of the provisions of Sections 3
Crl.R.C.No.939 of 2016
and 4 of the Probation of Offenders Act, 1958 and they have not recorded
any reason for such denial of extending the benefit as contemplated under
Section 6 of the said Act and thereby the order passed by the courts below
are liable to be set aside.
4. Per contra, Mr.S.Sugendran, learned Government Advocate
(Criminal Side) would submit that it is a case where the petitioner had
driven the motorcycle in a rash and negligent manner and had dashed
against the victim resulting in the victim sustaining injuries and later
succumbing to death. However, he would fairly submit that the petitioner
had also sustained injuries in the accident and the accident had occurred on
a Highway where there is no pedestrian/zebra crossing and the centre
median was running for 2 to 3 kms without any interruption. He would
also submit that the accident had occurred when the victim had crossed the
road by scaling the centre median.
5. Based on the above submissions and also the offer made by the
learned Senior Counsel for the petitioner to compensate the legal heirs of
the deceased, this court had directed the learned Government Advocate
Mr.S.Sugendran to put the legal heirs of the deceased on notice.
Crl.R.C.No.939 of 2016
6. Pursuant to the above direction, the legal heirs of the deceased viz.,
A.Dhanabakiam (wife of the deceased) and Swetha (daughter of the
deceased) had appeared before this court on 21.10.2021 and at their
request, this court appointed Mr.Guruprasad, learned counsel as amicus
curiae to assist the court and the legal representatives of the deceased. He
was also directed to address the court with regard to invoking the
provisions of the Probation of Offenders Act, 1958.
7. Subsequently, on being, prima facie, satisfied with regard to
applicability of the provisions of the Probation of Offenders Act to the
case on hand, this court, enquired the legal heirs of the victim and they had
submitted that they are prepared to accept the compensation offered by the
petitioner and condone the act of the petitioner and pardon him. They
have also submitted that they had filed M.C.O.P No.230 of 2017 before
MACTOP Tribunal, Tirupur claiming compensation of a sum of
Rs.20,00,000/-, which was dismissed for default and later, it was restored
to file and the matter was settled for a sum of Rs.4,00,000/- before the Lok
Adalat on 15.12.2021.
8. The legal heirs of the deceased have filed separate Affidavits in this
Crl.R.C.No.939 of 2016
regard, the relevant portions of the same are extracted hereunder for ready
reference:-
"Affidavit of A.Dhanabakiam
5. I humbly submit that pending revision, the petitioner
had pleaded before this Honourable Court to extend the
benefit of the Probation of Offenders Act 1958 and he has
volunteered to pay adequate and just compensation to the
victims of the crime (For me and my daughter Swetha). I
most respectfully state that I and my daughter appeared in
person before this Honorable Court on 15.12.2021 and this
court was pleased to enlighten and enquire us in this regard.
6. I most respectfully state that though I lost my
beloved husband in a terrific accident, which cannot be
compensated by any means; but considering the plight of
the Petitioner who will be put behind bars in his young age
and having the benefit of job offers to run his livelihood; I
with a benevolent and caring attitude wish to pardon the
Petitioner. Further, the petitioner/accused has also regretted
for his act. I out of my own volition, with proper legal
counselling, without any fear or coercion and undue
influence do hereby pardon the petitioner/accused and
agree to receive the compensation as fixed by this
Crl.R.C.No.939 of 2016
Honorable Court.
Affidavit of Swetha
5. I humbly submit that pending revision, the petitioner
had pleaded before this Honourable Court to extend the
benefit of the Probation of Offenders Act 1958 and he has
volunteered to pay adequate and just compensation to the
victims of the crime (For me and my mother Dhanabakiam). I
most respectfully state that I and my mother appeared in
person before this Honourable Court on 15.12.2021 and this
court was pleased to enlighten and enquire us in this regard.
6. I most respectfully state that though I lost my
beloved father in a terrific accident, which cannot be·
compensated by any means; but considering the plight of
the Petitioner who will be put behind bars in his young age
and having the benefit of job offers to run his livelihood; I
with a benevolent and caring attitude wish to pardon the
Petitioner. Further, the petitioner /accused has also regretted
for his act. I out of my own volition, with proper legal
counselling, without any fear or coercion and undue
influence do hereby pardon the petitioner /accused and
agree to receive the compensation as fixed by this
Honourable Court."
Crl.R.C.No.939 of 2016
9. The subsequent development in the case being so, Mr.V.Karthik,
learned Senior Counsel appearing for the petitioner would submit that the
manner in which the accident had occurred, as could be seen from the
materials produced by the prosecution itself would prove that it had
occurred not only due to the lapse on the part of the petitioner in taking
due care in driving the motorcycle, but also, equally due to the negligence
on the part of the victim in crossing the highway by scaling the centre
median and apart from PW1, who is a close relative of the deceased, there
is no other ocular witness to speak about the occurrence or to attribute
entire negligence to the petitioner. He would submit that admittedly, even
as per the prosecution, there was a three feet high centre median in the
middle of the highway extending for about 2 to 3 Kms and the accident
had occurred when the victim, aged about 70 years, had attempted to scale
over the centre median and cross the national highway. He would further
submit that the petitioner is not a professional driver but, was only a
student at the time of the accident and he was returning back to his home
from college and the petitioner was not under any intoxication and it is
only an unfortunate incident. He would also submit that except PW2, who
is a close relative of the deceased, there is no other ocular witness to prove
Crl.R.C.No.939 of 2016
that the petitioner had driven the motorcycle in a rash and negligent
manner.
10. Contending further that though there are several arguable points
available for the petitioner, the learned Senior Counsel for the petitioner
would submit that considering the fact that the accident had occurred not
only due to the some negligence on the part of the petitioner, a 19 year old
boy while returning from college, but, also due to the negligence on the
part of the victim, a 70 year old man, when he had indulged into the
prohibitory action of scaling the centre median on a Highway in the
absence of any pedestrian/zebra crossing, which would definitely have
caused shock and surprise to the rider of the motorcycle resulting in loss of
control and zigzag movement of the vehicle on a highway even if it is
ridden in a moderate speed. He would also submit that for all these years,
the petitioner had suffered the rigors for having become the accused of the
circumstances and now, he had secured a job in a multi national company
on completion of his education amidst the trial of the criminal proceedings
and therefore, he craves indulgence of this court and seeks for some
leniency towards the petitioner to have a fresh beginning of life, by
invoking either the provisions of Probation of Offenders Act, 1958 or
Crl.R.C.No.939 of 2016
Section 360 Cr.PC.
11. Mr.Guruprasad, learned counsel, who was appointed as amicus
curiae, has made his submissions as under:-
i) Admittedly, the accident had occurred in a Highway due to the
hitting of the motorcycle driven by the petitioner, a 19 years old boy, while
he was returning from college and the victim, a 70 years old man, who had
attempted to scale the centre median to cross the Highway in the absence
of any pedestrian/zebra crossing, had sustained grievous injuries and later
succumbed to death.
ii) The petitioner was not found under any intoxication at the time of
the accident and he had also sustained some injuries in the accident.
iii) Certainly, there is some amount of contributory negligence on the
part of the victim in crossing the road without any caution.
iv) The evidence of PW7 would prove that the victim had attempted
to cross the road where there was no pedestrian/zebra crossing and that it
was a national Highway. PW2, the nephew of the deceased had
categorically admitted that the place of accident is a national Highway and
there was a centre median at a height of 3 feet and there was no traffic
Crl.R.C.No.939 of 2016
sign or zebra crossing at the place and that the pedestrians have to go 2 or
3 kms to cross the road. Except PW2, who is a close relative of the
deceased, there is no other ocular witness to speak about the rash and
negligence on the part of the petitioner in driving the motorcycle.
v) The legal heirs of the deceased had earlier filed M.C.O.P.No.230 of
2017 before MACTOP Tribunal, Tirupur claiming compensation of a sum
of Rs.20,00,000/-, which was dismissed for default and later, it was
restored to file and the matter was settled for a sum of Rs.4,00,000/- before
the Lok Adalat on 15.12.2021.
vi) Though it is a case of death by the road accident attracting the
offence punishable under Section 304A IPC, the Hon'ble Apex Court in
State vs. Sanjiv Bhalla (2015) 13 SCC 444, by referring to various earlier
decisions regarding the offence punishable under Section 304A IPC and
the provisions of the Probation of Offenders Act, has held that an absolute
principle of law cannot be laid down that in no case falling under Section
304-A IPC should a convict be released on probation and the procedure for
grant of probation should not be disregarded outright, but, should be
followed and and appropriate decision can be taken depending upon the
Crl.R.C.No.939 of 2016
facts of the case.
vii) On the date of accident, the petitioner was only 19 years old and
he is a first time offender. It is a fit case for admonition instead of directing
the petitioner to undergo sentence invoking the provisions of Probation of
Offenders Act or Section 360 Cr.P.C. for releasing the petitioner on
probation. The courts below have also not recorded reasons for not
extending such benefit to the petitioner.
12. Having heard the learned counsel appearing for the parties and the
learned amicus curiae and perused the materials available on record, this
court finds that the legal heirs of the deceased had been duly compensated
and a just balance has been arrived at. Therefore, this court is of the view
that it is a fit case for granting the benefit of the provisions of Probation of
Offenders Act, 1958 to the petitioner.
13. Section 3 of the Probation of Offenders Act, 1958 confers power
upon the courts to release certain offenders after admonition. When a
person is guilty of offence punishable for any offence with imprisonment
for not more than two years or with fine or with both under the Penal Code
1860 or any other law and there is no previous conviction proved against
Crl.R.C.No.939 of 2016
such offender. The said legal provision is extracted hereunder for ready
reference:-
"3. Power of court to release certain offenders after
admonition.—When any person is found guilty of having
committed an offence punishable under section 379 or
section 380 or section 381 or section 404 or section 420 of
the Indian Penal Code, (45 of 1860) or any offence
punishable with imprisonment for not more than two years,
or with fine, or with both, under the Indian Penal Code or
any other law, and no previous conviction is proved
against him and the court by which the person is found
guilty is of opinion that, having regard to the
circumstances of the case including the nature of the
offence, and the character of the offender, it is expedient so
to do, then, notwithstanding anything contained in any
other law for the time being in force, the court may,
instead of sentencing him to any punishment or releasing
him on probation of good conduct under section 4, release
him after due admonition."
Crl.R.C.No.939 of 2016
14. When the court empowered to try and sentence the offender to
imprisonment declines to deal with him under Section 3 of the Probation of
Offenders Act, 1958, the Appellate Court or the revisional court, as the
case may be, i.e., either the Sessions Court or the High Court is
empowered under Section 11(1) of the Act to make an order under this
Act. It is relevant to extract Section 11(1) of the Act, which reads as
under:-
"11. Courts competent to make order under the Act,
appeal and revision and powers of courts in appeal and
revision.—
(1) Notwithstanding anything contained in the
Code or any other law, an order under this Act, may be
made by any court empowered to try and sentence the
offender to imprisonment and also by the High Court or
any other court when the case comes before it on appeal
or in revision."
Crl.R.C.No.939 of 2016
15. It is relevant to note that the Hon'ble Apex Court, in several cases,
has held that in case of motor accidents, rash and negligent driving should
be taken serious note of and in number of cases, it has desisted from
invoking the provisions of Probation of Offenders Act, 1958 However, in
State vs. Sanjiv Bhalla (2015) 13 SCC 444, taking into consideration its
earlier decisions, the Apex Court has held as under:-
"11. Every accused person need not be detained,
arrested and imprisoned—liberty is precious and must not
be curtailed unless there are good reasons to do so.
Similarly, everybody convicted of a heinous offence need
not be hanged however shrill the cry “off with his head”—
and this cry is now being heard quite frequently. Life is
more precious than liberty and must not be taken unless
all other options are foreclosed. [Bachan Singh v. State of
Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] Just
sentencing is as much an aspect of justice as a fair trial
and every sentencing Judge would do well to ask: Is the
sentence being awarded fair and just?
12. In Ved Prakash v. State of Haryana [(1981) 1 SCC
Crl.R.C.No.939 of 2016
447 : 1981 SCC (Cri) 182] this Court observed that: (SCC
p. 448, para 1)
“1. … [I]t is the duty of the sentencing court to be
activist enough to collect such facts as have a bearing
on punishment with a rehabilitation slant.”
A little later in the judgment, it was held that: (SCC p. 448,
para 1)
“1. [E]ven if the Bar does not help, the Bench must
fulfil the humanising mission of sentencing implicit in
such enactments as the Probation of Offenders Act.”
In other words, this Court was of the view that punishment
should be rehabilitative and humanising and, therefore,
need not necessarily be retributive in character.
13. Subsequently, in Hari Singh v. Sukhbir Singh [(1988)
4 SCC 551 : 1988 SCC (Cri) 984] this Court held that
extending the benefit of probation to first-time offenders is
generally not inappropriate. The humanising principle was
extended even to a conviction under Part II of Section 304
IPC in State of Karnataka v. Muddappa [(1999) 5 SCC
Crl.R.C.No.939 of 2016
732 : 1999 SCC (Cri) 1046] in which case the benefit of
release on probation was granted to the convict.
14. The benefit of the provisions of Section 6 of the
Probation of Offenders Act (relating to restrictions on the
imprisonment of offenders below 21 years of age)
[ “6.Restrictions on imprisonment of offenders under
twenty-one years of age.—(1) When any person under
twenty-one years of age is found guilty of having
committed an offence punishable with imprisonment (but
not with imprisonment for life), the court by which the
person is found guilty shall not sentence him to
imprisonment unless it is satisfied that, having regard to
the circumstances of the case including the nature of the
offence and the character of the offender, it would not be
desirable to deal with him under Section 3 or Section 4,
and if the court passes any sentence of imprisonment on
the offender, it shall record its reasons for doing so.(2) For
the purpose of satisfying itself whether it would not be
desirable to deal under Section 3 or Section 4 with an
Crl.R.C.No.939 of 2016
offender referred to in sub-section (1), the court shall call
for a report from the Probation Officer and consider the
report, if any, and other information available to it relating
to the character and physical and mental conditions of the
offender.”] was extended to persons convicted of
attempted rape. This was in State of Haryana v. Prem
Chand [(1997) 7 SCC 756 : 1997 SCC (Cri) 1176] which
was followed in State of H.P. v. Dharam Pal [(2004) 9
SCC 681 : 2004 SCC (Cri) 1477] .
15. Similarly, in Om Prakash v. State of Haryana [(2001)
10 SCC 477 : 2003 SCC (Cri) 799] the convicts, first-time
offenders, were given the benefit of Section 360 and
Section 361 of the Criminal Procedure Code and it was
held that reasons ought to have been recorded for the
denial of such a benefit. [ “360.Order to release on
probation of good conduct or after admonition.—(1)
When any person not under twenty-one years of age is
convicted of an offence punishable with fine only or with
imprisonment for a term of seven years or less, or when
Crl.R.C.No.939 of 2016
any person under twenty-one years of age or any woman
is convicted of an offence not punishable with death or
imprisonment for life, and no previous conviction is proved
against the offender, if it appears to the court before
which he is convicted, regard being had to the age,
character or antecedents of the offender, and to the
circumstances in which the offence was committed, that it
is expedient that the offender should be released on
probation of good conduct, the court may, instead of
sentencing him at once to any punishment, direct that he
be released on his entering into a bond, with or without
sureties, to appear and receive sentence when called
upon during such period (not exceeding three years) as
the court may direct and in the meantime to keep the
peace and be of good behaviour: Provided….(2)***(3) In
any case in which a person is convicted of theft, theft in a
building, dishonest misappropriation, cheating or any
offence under the Penal Code, 1860 punishable with not
more than two years' imprisonment or any offence
Crl.R.C.No.939 of 2016
punishable with fine only and no previous conviction is
proved against him, the court before which he is so
convicted may, if it thinks fit, having regard to the age,
character, antecedents or physical or mental condition of
the offender and to the trivial nature of the offence or any
extenuating circumstances under which the offence was
committed, instead of sentencing him to any punishment,
release him after due admonition.(4)-(10) 361.Special
reasons to be recorded in certain cases.—Where in any
case the court could have dealt with—(a) an accused
person under Section 360 or under the provisions of the
Probation of Offenders Act, 1958 (20 of 1958), or(b) a
youthful offender under the Children Act, 1960 (60 of
1960), or any other law for the time being in force for the
treatment, training or rehabilitation of youthful
offenders,but has not done so, it shall record in its
judgment the special reasons for not having done so.”]
The offence in that case was punishable under Section
323 and Section 325 read with Section 148 and Section
Crl.R.C.No.939 of 2016
149 IPC.
16. In the meanwhile, however, in Dalbir Singh v. State of
Haryana [(2000) 5 SCC 82 : 2004 SCC (Cri) 1208] this
Court declined to give to the appellant, convicted of an
offence punishable under Section 279 and Section 304-A
IPC, the benefit of Section 4 of the Probation of Offenders
Act [ “4.Power of court to release certain offenders on
probation of good conduct.—(1) When any person is
found guilty of having committed an offence not
punishable with death or imprisonment for life and the
court by which the person is found guilty is of opinion that,
having regard to the circumstances of the case including
the nature of the offence and the character of the
offender, it is expedient to release him on probation of
good conduct, then, notwithstanding anything contained in
any other law for the time being in force, the court may,
instead of sentencing him at once to any punishment,
direct that he be released on his entering into a bond, with
or without sureties, to appear and receive sentence when
Crl.R.C.No.939 of 2016
called upon during such period, not exceeding three
years, as the court may direct, and in the meantime to
keep the peace and be of good behaviour:Provided that
the court shall not direct such release of an offender
unless it is satisfied that the offender or his surety, if any,
has a fixed place of abode or regular occupation in the
place over which the court exercises jurisdiction or in
which the offender is likely to live during the period for
which he enters into the bond.(2) Before making any
order under sub-section (1), the court shall take into
consideration the report, if any, of the Probation Officer
concerned in relation to the case.(3)-(5)] keeping in mind
“the galloping trend in road accidents in India and the
devastating consequences visiting the victims and their
families”. It was held that: (Dalbir Singh case [(2000) 5
SCC 82 : 2004 SCC (Cri) 1208] , SCC p. 87, para 13):-
“13. … [C]riminal courts cannot treat the nature of the
offence under Section 304-A IPC as attracting the
benevolent provisions of Section 4 of the PO Act.
Crl.R.C.No.939 of 2016
While considering the quantum of sentence to be
imposed for the offence of causing death by rash or
negligent driving of automobiles, one of the prime
considerations should be deterrence.”
That decision, in which a cyclist was killed, resulted in a
sentence of three months and one year respectively for
the violation of the two sections mentioned above. That
decision, in a sense, was a precursor to a stricter
application by this Court of the provisions for releasing a
convict on probation and went contrary to the grain of
earlier decisions of this Court.
17. In Karamjit Singh v. State of Punjab [(2009) 7 SCC
178 : (2009) 3 SCC (Cri) 330] the convict, a first-time
offender, was denied the benefit of release on probation
in view of the gravity of the offence and a large number of
injuries on the victim. The conviction in that case was for
an offence punishable under Section 307 IPC and Section
27 of the Arms Act. That decision contains an inadvertent
Crl.R.C.No.939 of 2016
error, to the following effect: (SCC p. 185, para 26)
“26. In Manjappa v. State of Karnataka [(2007) 6
SCC 231 : (2007) 3 SCC (Cri) 76] this Court
considered the scope of grant of relief under the
provisions of Section 361 CrPC or under the
provisions of the Probation of Offenders Act, 1958
reconsidering earlier judgment of this Court in Om
Prakash v. State of Haryana [(2001) 10 SCC 477 :
2003 SCC (Cri) 799] , and held that such a relief
should be granted where the offence had not been
of a very grave nature and in certain cases where
mens rea remains absent as in a case of rash and
negligent driving under Section 279 read with
Section 304-A IPC.”
18. As has been noticed above, Om Prakash [(2001) 10
SCC 477 : 2003 SCC (Cri) 799] related to an offence
punishable under Section 323 and Section 325 read with
Section 148 and Section 149 IPC. Manjappa [(2007) 6
SCC 231 : (2007) 3 SCC (Cri) 76] relates to the offences
Crl.R.C.No.939 of 2016
punishable under Sections 323, 325 and 504 IPC. There
is no reference to any offence punishable under Section
279 or Section 304-A IPC. However, it appears that this
Court desired to convey that an offence punishable under
Section 279 and Section 304-A IPC is the result of an
accident and is, therefore, not “grave” since there is an
absence of mens rea.
19. Notwithstanding this, in State of Punjab v. Balwinder
Singh [(2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] it was
again held that the punishment for causing death by rash
or negligent driving should be deterrent, in view of the
frequency of such incidents. The accident in that case
resulted in the death of five persons, and the punishment
was six months' rigorous imprisonment with a fine of Rs
5000.
20. In Alister Anthony Pareira v. State of Maharashtra
[(2012) 2 SCC 648 : (2012) 1 SCC (Civ) 848 : (2012) 1
SCC (Cri) 953] the convict's driving resulted in the death
of seven persons and injuries to eight others. This Court
Crl.R.C.No.939 of 2016
upheld his conviction by the High Court for the offences
punishable under Part II of Section 304; Sections 338 and
337 IPC and sentenced him to rigorous imprisonment for
three years and a fine of Rs 5 lakhs. This Court also
observed that the case was not a fit one for releasing the
convict on probation. It was also observed that our
country has the dubious distinction of registering the
maximum number of deaths in road accidents and that “It
is high time that lawmakers revisit the sentencing policy
reflected in Section 304-A IPC”.
21. In State v. Sanjeev Nanda [(2012) 8 SCC 450 : (2012)
4 SCC (Civ) 487 : (2013) 3 SCC (Cri) 899] six persons
were killed and one injured as a result of the convict's
driving. The trial court convicted him for an offence
punishable under Section 304 Part II IPC and sentenced
him to undergo rigorous imprisonment for five years. On
appeal, the High Court found the convict guilty of
commission of an offence punishable under Section 304-
A IPC and reduced the sentence to two years. By the time
Crl.R.C.No.939 of 2016
the appeal filed by the State was taken up for disposal,
the convict completed his term of imprisonment. That
being so, while restoring the conviction under Section 304
Part II IPC, this Court did not deem it appropriate to
enhance the sentence awarded. Several reasons were
given for this, including the fact that the convict had given
compensation to the families of the deceased to the
extent of Rs 10 lakhs each and to the family of the injured
to the extent of Rs 5 lakhs. The convict was further
directed to deposit an amount of Rs 50 lakhs with the
Central Government for paying compensation to the
victims of other hit-and-run cases and to do community
service for two years.
22. It does appear that depending upon the facts of each
case, causing death by what appears (but is not) to be a
rash or negligent act may amount to an offence
punishable under Part II of Section 304 IPC, not
warranting the release of the convict under probation.
There may also be situations where an offence is
Crl.R.C.No.939 of 2016
punishable under Section 304-A IPC in an accident
“where mens rea remains absent” and refusal to release a
convict on probation in such a case may be too harsh an
approach to take. An absolute principle of law cannot be
laid down that in no case falling under Section 304-A IPC
should a convict be released on probation. This is
certainly not to say that in all cases falling under Section
304-A IPC, the convict must be released on probation—it
is only that the principles laid down in Sections 360 and
361 of the Criminal Procedure Code and the Probation of
Offenders Act should not be disregarded but should be
followed and an appropriate decision, depending on the
facts of the case, be taken in each case.
23. In Ajahar Ali v. State of W.B. [(2013) 10 SCC 31 :
(2013) 3 SCC (Cri) 794] the appellant was convicted of an
offence of outraging the modesty of a woman punishable
under Section 354 IPC. This was held to be “a heinous
crime and with the social condition prevailing in the
society, the modesty of a woman has to be strongly
Crl.R.C.No.939 of 2016
guarded” and so the benefit of the Probation of Offenders
Act was not given to him. This may be contrasted with
Prem Chand [(1997) 7 SCC 756 : 1997 SCC (Cri) 1176]
and subsequently Dharam Pal [(2004) 9 SCC 681 : 2004
SCC (Cri) 1477] where the convict was guilty of a far more
serious offence of attempted rape and yet granted the
benefit of the Probation of Offenders Act, notwithstanding
the nature of the crime, and only because of his age.
24. These decisions indicate that the philosophical basis
of our criminal jurisprudence is undergoing a shift—from
punishment being a humanising mission to punishment
being deterrent and retributive. This shift may be
necessary in today's social context (though no opinion is
expressed), but given the legislative mandate of Sections
360 and 361 of the Criminal Procedure Code and the
Probation of Offenders Act, what is imperative for the
Judge is to strike a fine balance between releasing a
convict after admonition [ Probation of Offenders Act,
1958,“3.Power of court to release certain offenders after
Crl.R.C.No.939 of 2016
admonition.—When any person is found guilty of having
committed an offence punishable under Section 379 or
Section 380 or Section 381 or Section 404 or Section 420
of the Penal Code, 1860, or any offence punishable with
imprisonment for not more than two years, or with fine, or
with both, under the Penal Code, 1860 or any other law,
and no previous conviction is proved against him and the
court by which the person is found guilty is of opinion that,
having regard to the circumstances of the case including
the nature of the offence and the character of the
offender, it is expedient so to do, then, notwithstanding
anything contained in any other law for the time being in
force, the court may, instead of sentencing him to any
punishment or releasing him on probation of good
conduct under Section 4 release him after due
admonition. Explanation.—For the purposes of this
section, previous conviction against a person shall include
any previous order made against him under this section or
Section 4.”] or on probation or putting such a convict in
Crl.R.C.No.939 of 2016
jail. This can be decided only on a case by case basis but
the principle of rehabilitation and the humanising mission
must not be forgotten.
25. There are other legislative requirements that need to
be kept in mind. The Probation of Offenders Act provides,
in Section 5 thereof [ “5.Power of court to require
released offenders to pay compensation and costs.—(1)
The court directing the release of an offender under
Section 3 or Section 4, may, if it thinks fit, make at the
same time a further order directing him to pay—(a) such
compensation as the court thinks reasonable for loss or
injury caused to any person by the commission of the
offence; and(b) such costs of the proceedings as the court
thinks reasonable.(2) The amount ordered to be paid
under sub-section (1) may be recovered as a fine in
accordance with the provisions of Sections 386 and 387
of the Code.(3) A civil court trying any suit, arising out of
the same matter for which the offender is prosecuted,
shall take into account any amount paid or recovered as
Crl.R.C.No.939 of 2016
compensation under sub-section (1) in awarding
damages.”] for payment of compensation to the victim of a
crime (as does Section 357 of the Criminal Procedure
Code). Yet, additional changes were brought about in the
Criminal Procedure Code in 2006 providing for a victim
compensation scheme and for additional rights to the
victim of a crime, including the right to file an appeal
against the grant of inadequate compensation. How often
have the courts used these provisions?
26. In Ankush Shivaji Gaikwad v. State of Maharashtra
[(2013) 6 SCC 770 : (2014) 1 SCC (Cri) 285] and Jitendra
Singh v. State of U.P. [(2013) 11 SCC 193 : (2013) 4 SCC
(Cri) 725] this Court held that consideration of grant of
compensation to the victim of a crime is mandatory, in the
following words taken from Ankush Shivaji Gaikwad
[(2013) 6 SCC 770 : (2014) 1 SCC (Cri) 285] : (SCC p.
797, para 66)
“66. … [W]hile the award or refusal of compensation
in a particular case may be within the court's
Crl.R.C.No.939 of 2016
discretion, there exists a mandatory duty on the court
to apply its mind to the question in every criminal
case. Application of mind to the question is best
disclosed by recording reasons for awarding/refusing
compensation.”
27. This being the position in law, there is a necessity of
giving justice to the victims of a crime and by arriving at a
fair balance, awarding a just sentence to the convicts by
treating them in a manner that tends to assist in their
rehabilitation. The amendments brought about in the
Criminal Procedure Code in 2006 also include a chapter
on plea bargaining, which again is intended to assist and
enable the trial Judge to arrive at a mutually satisfactory
disposition of a criminal case by actively engaging the
victim of a crime. It is the duty of a trial Judge to utilise all
these tools given by Parliament for ensuring a fair and just
termination of a criminal case.
28. To sum up:
28.1. For awarding a just sentence, the trial Judge must
Crl.R.C.No.939 of 2016
consider the provisions of the Probation of Offenders Act
and the provisions on probation in the Criminal Procedure
Code;
28.2. When it is not possible to release a convict on
probation, the trial Judge must record his or her reasons;
28.3. The grant of compensation to the victim of a crime is
equally a part of just sentencing;
28.4. When it is not possible to grant compensation to the
victim of a crime, the trial Judge must record his or her
reasons; and
28.5. The trial Judge must always be alive to alternative
methods of a mutually satisfactory disposition of a case."
16. In the present case, the conviction is under Sections 279 and 304A
IPC, where the maximum sentence provided is two years. The petitioner
has not suffered any previous conviction. Section 11(1) of the Probation
of Offenders Act provides that an order under this Act may be given by
any court empowered to try and sentence the offender to imprisonment and
also by the High Court or any other court when the case comes before it on
Crl.R.C.No.939 of 2016
appeal or in revision. Therefore, this court, invoking Section 11(1) of
Probation of Offenders Act, can pass order at this stage.
17. Once again, coming to the factual aspects, this court could see that
the accident had taken place not only due to the negligence on the part of
the petitioner but also, there is some contributory negligence on the part of
the victim in attempting to cross the National Highway by scaling the
centre median in the absence of any pedestrian/zebra crossing and for the
fateful occurrence, the petitioner had already suffered a lot and now, he
had compensated the legal heirs of the deceased by paying some ex gratia
and the legal heirs of the deceased also have expressed that considering the
plight of the petitioner, they intend to pardon the act of the petitioner. The
petitioner has not been brought to any adverse notice and he has not
suffered any previous conviction.
18. The legal heirs of the deceased viz., his wife and daughter had
already filed M.C.O.P. before the Tribunal and got a sum of Rs.4,00,000/-
having settled the matter before the Lok Adalat. It is also brought to the
notice of this court by the learned Senior Counsel for the petitioner that
towards payment of compensation as ex gratia to the legal heirs of the
Crl.R.C.No.939 of 2016
deceased, the petitioner had taken two demand drafts bearing Nos.197710
and 197709 dated 18.12.2021 each for a sum of Rs.2,50,000/- in favour of
the wife and daughter of the deceased Arukutti and sent them to the legal
heirs of the deceased. The receipt of the compensation amount is also
confirmed by the learned amicus curiae.
19. Considering the above facts and circumstances, this court deems it
proper that it is a fit case for invoking Section 11(1) of the Probation of
Offenders Act, 1958 and release the petitioner on due admonition instead
of directing him to undergo the sentence. Therefore, while confirming the
conviction, the sentence alone is modified directing for release of the
petitioner on due admonition invoking the provisions of Section 11(1) of
the Probation of Offenders Act, 1958. Accordingly, the Criminal Revision
Case stands party allowed. It is made clear that conviction of the petitioner
may not cast any stigma on the petitioner/accused and the petitioner shall
not suffer any disqualification. The petitioner need not surrender. Bail
bonds executed, if any, shall stand cancelled.
Crl.R.C.No.939 of 2016
20. Before parting with, this court intends to place on record its
appreciation for the efforts taken by Mr.Guruprasad, learned counsel, who
assisted the court in this case as amicus curiae.
1.2.2022
tsh/ssk.
Index: Yes/No.
Internet: Yes/No.
To
1. The I Additional District and Sessions Judge, Coimbatore.
2. The Judicial Magistrate No.VIII, Coimbatore.
3. The Public Prosecutor, High Court, Madras.
4. The Inspector of Police, TIW (East) Police Station, Coimbatore.
Crl.R.C.No.939 of 2016
A.D.JAGADISH CHANDIRA, J.,
tsh/ssk
Crl.R.C.No.939 of 2019
1.2.2022.
