Becharbhai Raijibhai Parmar v. STATE — 1991 DIGILAW 19 (GUJ)

J. N. BHATT, J. ( 1 ) ). Petitioner/original accused has questioned the legality and validity of the judgment and order passed by the learned Additional Sessions judge, at Baroda, in Criminal Appeal No. 34 of 1983, on 13-9-1983, by invoking the aids of sections 397 read with Section 401 of the Criminal procedure Code, 1973 (code for short, hereinafter ). ( 2 ) BRIEFLY stated, the facts as per the Prosecution case, are that the petitioner, who is a driver working in Gujarat State Road Transport Corporation, was in charge of one S. T. Bus bearing No. GRT 8408, on the unfortunate day, i. e. , 24-9-1981. The accident occurred on that day, at about 8 a. m. when the bus was proceeding near village sunderpura, on Makarpura Road. The offending bus collided with a cyclist, the deceased Kantilal haribhai Patel. He sustained serious injuries and succumbed to the same. Brother of the deceased, mahesh, lodged the complaint Investigation was carried out, the accused-petitioner herein was charge-sheeted and he was tried by the learned judicial Magistrate, First Class, (Municipal), at baroda, for the alleged offences punishable under sections 279, 427 and 304 (A) of the Indian penal Code. The learned Magistrate was pleased to find him guilty for the offences punishable under Sections 279, 427 and 304 (A) of the indian Penal Code and sentenced him to undergo simple imprisonment for six months and a fine of rs. 100/- and in default, to undergo simple imprisonment for one month. No separate sentence was passed for rest of the offences. ( 3 ) BEING dissatisfied by the said order of conviction and sentence, the accused preferred criminal Appeal No. 34 of 1983 before the sessions Court, at Baroda. The learned Additional sessions Judge was pleased to dismiss the appeal on 13-9-1983. Hence, this revision. ( 4 ) LEARNED Counsel for the petitioner/ original accused has formulated following two points for the consideration of this court in this revision : (1) That the prosecution has failed to prove the guilt of the accused; and (2) That, alternatively, the accused could have been given benefit of probation. ( 5 ) THESE points have been seriously opposed by the learned Additional P. P. for the respondent-State. In so far as the first contention is concerned, it is, totally, meritless in the facts of the present case. ( 5 ) THESE points have been seriously opposed by the learned Additional P. P. for the respondent-State. In so far as the first contention is concerned, it is, totally, meritless in the facts of the present case. The courts below have concurrently found the petitioner herein guilty for the offences punishable under Sections 279, 427 and 304 (A) of the Indian Penal Code. Both the Courts have, rightly, appreciated the evidence and held that death of the cyclist, Kantilal haribhai Patel, was the outcome of the rashness and negligence on the part of the driver of the offending bus, who is the present petitioner. Both the courts have appreciated the evidence of eye-witnesses and other circumstances. It cannot be said that the finding of fact reached by both the Courts is in any way erroneous or illegal. Therefore, in so far as the first point is concerned, it is required to be rejected. ( 6 ) THIS would lead us to the appreciation of the second contention. It is contended that in view of the special circumstances of the case, the accused could have been given benefit of probation. It is also contended that while granting the benefit of probation, the accused could be directed to pay reasonable amount of compensation to the family of the deceased- Kantilal Haribhai Patel. It is, rightly, contended (hut the courts below failed to appreciate the provisions of Section 361 of the Code. It is apparent from the plain tenor of Section 361 of the Code that special reasons are required to be recorded in case where the accused person is not given the benefit of probation under Section 360 of the Code or under the provisions of the Probation of offenders Act. In a case like one in hand though the exercise of power under Section 360 of the code is purely a discretionary one, while refusing to grant benefit of probation to the accused, special reasons are required to be recorded for not extending the benefit of Section 360 of the code or the provisions of the Probation of Offenders Act. Therefore, the Court is obliged to consider the provisions of Sections 360 and 361 of the Code. Therefore, the Court is obliged to consider the provisions of Sections 360 and 361 of the Code. In the case of Gopalbhai v. State reported in 1984 (2), GLR, 1470 (= 1985 GLH 100 ), this court has held that the procedure for releasing on probation of good conduct under sections 360 and 361 of the Code are mandatory. The court is bound to apply its mind whether the provisions of Section 360 of the Code are brought into action and, if not, the court is required to give special reasons. Thus, if the court does not proceed under Section 360 of the Code or under the provisions of the Probation of Offenders Act, then the court has to record in its judgment the special reasons for having not done so. ( 7 ) IT would be also pertinent to refer to the relevant observations of the apex court of the land in the case of Bishnu Deo v. State of West bengal, reported in AIR, 1979, SC, 964. The relevant observations are in paragraph 25 which read as under:"apart from Section 354 (3), there is another provision in the Code which also uses the significant expression special reasons. It is section 361. Section 360 of the 1973 Code reenacts, in substance, Section 562 of the 1898 code and provides for the release on probation of good conduct or after admonition any person not under twenty-one years of age who is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or any person under twenty-one years of age or any woman who is convicted of an offence not punishable with death or imprisonment for life, if no previous offence is proved against the offender, and if it appears to the court, having regard to 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 or after admonition. If the Court refrains from dealing with an offender under Section 360 or under the provisions of the Probation of offenders Act, or any other law for the treatment, training, or rehabilitation of youthful offenders, where the Court could have done so, section 361, which is a new provision in the 1973 Code makes it mandatory for the Court to record in its judgment the special reasons for not doing so. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever it is possible to do so and, to state "special reasons" if it does not do so. In the context of Section 360, the "special reasons" contemplated by Section 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the Legislature that reformation and rehabilitation of offenders, and not more deterrence, and now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354 (3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. We will not, therefore, be wrong in assuming that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded Special reasons must have some relation to these factors. "the impugned judgment and order of the learned Additional Sessions Judge and also that of the learned Magistrate do not, remotely, even suggest that the provisions of these two sections are taken into account. ( 8 ) THE question, now, requires to be examined is whether the accused is entitled to the benefit of the provisions of the Probation of offender, Act. In view of the special facts and peculiar circumstances obtainable in the present case, the accused/petitioner herein is entitled to the benefit of probation while directing him to pay Rs. 6. 000. 00 as compensation under Section 360 of the Code and Section 5 of the Probation of Offenders Act, 1958. In view of the special facts and peculiar circumstances obtainable in the present case, the accused/petitioner herein is entitled to the benefit of probation while directing him to pay Rs. 6. 000. 00 as compensation under Section 360 of the Code and Section 5 of the Probation of Offenders Act, 1958. It is true, as pointed out by the learned Addl. P. P. that in view of the alarming rise of such road accidents, leniency cannot be shown to the accused and benefit of probation should not, ordinarily, be given. However, whether the accused is entitled to probation or the benefit of probation should be afforded to the accused or not would be a matter depending upon the facts and circumstances obtainable in a given case. This case is eminently a fit case for making departure from the normal practice that in such a serious offence of road accident probation should not be given. ( 9 ) IT would be, therefore, pertinent to highlight the peculiar facts and circumstances constituting a good basis for granting benefit of probation. 1. That the accused has been serving as a driver of the S. T. bus and he was in charge of the bus in discharge of his duty at the time of the unfortunate accident. 2. That the accused is involved for the first time in such a road accident. 3. That the accused is the only earning person in the family and he is required to maintain aged parents, younger brother, his wife and five children. 4. Out of the five children, three children are studying in school. 5. The offence in question occurred in 1981. Therefore, intervening time (lapse of nine years) is required to be borne in mind. 6. The manner and mode in which the accident occurred. 7. The effect of the order on the service career of the petitioner, who is a bus driver. 8. Award of compensation under Section 5 (1) (a) of the Probation of Offenders Act. Learned Counsel for the petitioner has also placed reliance on a decision of the Supreme court in the case of Aitha Chandern Rao v. State of A. P. reported in 1982 (SC) Cr. L. J. , 7. It is true that the Supreme Court had given the benefit of probation to the accused who was convicted under Section 304 (A) of the Indian Penal Code. L. J. , 7. It is true that the Supreme Court had given the benefit of probation to the accused who was convicted under Section 304 (A) of the Indian Penal Code. The ratio of the said decision is squarely attracted to the facts of the present case. Therefore, there is a fit case to grant benefit of probation to the accused/petitioner herein. ( 10 ) AFTER having examined the judgments and orders of the courts below, there is no any reason to interfere with the finding of conviction and sentence. Since it is noticed that the petitioner herein is entitled to be released on probation the revision petition is required to be, partly, allowed. In the facts and curcumstances of the present case, while giving benefit of probation to the accused/petitioner herein, it would be eminently just and proper to direct him to pay rs. 6,000/- by way of compensation to the family of deceased Kantilal Haribhai Patel. Unfortunately, it is not clear from the evidence or record of the case as to whether that wife of the deceased is available or not. Therefore, it is directed that the amount of compensation of Rs. 6,000. 00 shall be paid to the wife of the deceased Kantilal haribhai Patel or to the nearest kith and kin of the deceased Kantilal Haribhai Patel, if his wife is not available and the question as to who is the nearest kith and kin of the deceased will be decided by the learned Judicial Magistrate, First class (Municipal), at Baroda. ( 11 ) HAVING examined the facts and circumstances of the case, the order of conviction and sentence passed by the learned Additional Sessions Judge, at Baroda, is required to be confirmed. However, the accused/petitioner herein is found entitled to the benefit of probation under section 360 of the Code and Section 5 of the probation of Offenders Act, 1958. Thus, this is a fit case in which the petitioner herein/original accused is required to be released on probation. While confirming the impugned judgment and order, the order of sentence is required to be suspended and the accused is ordered to be released on probation of good conduct under Section 4 of the Probation of Offenders Act and section 360 of the Code. While confirming the impugned judgment and order, the order of sentence is required to be suspended and the accused is ordered to be released on probation of good conduct under Section 4 of the Probation of Offenders Act and section 360 of the Code. Thus, instead of sentencing the accused at once to imprisonment, he shall be released on probation on his entering into a bond in the sum of Rs. 3. 000. 00 with a surely of like amount, for a period of one year, to appear and receive sentence as and when called upon, during the said period, and in the meantime, he shall keep peace and he will be of good behaviour and the bond to be executed by the accused, shall also include the condition that he shall not indulge or repeal the same offence or any commission of offence under the Motor Vehicles Act while working as a driver in Gujarat State Road transport Corporation. ( 12 ) IN the result, the impugned conviction instead of immediately directing the accused to undergo sentence of imprisonment, he is released on probation for a period of one year from the date of his executing the bond, as aforesaid. The accused/petitioner herein, shall deposit an amount of Rs. 6. 000. 00 to be paid, as aforesaid, as compensation, within a period of two months from today in the Court of the learned Judicial magistrate, First class (Municipal), at Baroda. The accused/petitioner is on bail pending this revision and he is given time to deposit as aforesaid the amount of Rs. 6,000. 00 by way of compensation. Therefore, the interim relief shall continue for a period of two months. The accused/petitioner herein shall execute the bond after depositing the amount of Rs. 6,000. 00 as directed above. ( 13 ) IN the result, this revision application is, partly, allowed. Rule is made absolute to the aforesaid extent. .