A. M. Farook v. State — 1992 DIGILAW 38 (CAL)

JUDGMENT A.M. Sinha, J: This Revisional application is directed against the judgment and order passed by the Learned Session Judge in an appeal from an order of conviction and sentence passed by Learned Judicial Magistrate, First Class 11, Port Blair in G. R. Case No. 947 of 1985 arising out of Aberdeen Police Station case No. 530 of 1984 dated August 5, 1984. The accused stood charged before the trial court for the commission of offence under Ss. 279, 337 and 338 Indian Penal Code. 2. The short facts of this case is that the accused a driver of Port Marine Department while driving the truck of the department bearing No. AN 4135 on August 5, 1984 at 12.00 hrs which was loaded with winch machine, at a high speed along the road near Sippighat lost control of it and as a result, the truck was overturned on the field by the side of the road causing injury to two persons sitting on the truck. One of them was grievously hurt and other sustained simple injuries. The Learned trying Magistrate on consideration of the evidence of the witnesses examined by the prosecution and the materials produced before him found the accused guilty of the offences and accordingly convicted him and sentenced him to suffer R. I. for different terms. For the offence under s. 279 the accused was sentenced to suffer R. I. for one month and for offence under s. 337 R.I. for one month and R.I., for one year for the offence under s. 338 IPC. He however ordered that the substantive punishment of imprisonment would run concurrently. He also sentenced the accused to pay a fine of Rs. 1000/-, Rs. 500/- and Rs. 1000/- for the offences under Ss. 279, 337 and 338 IPC respectively. Being aggrieved by such judgment, order of conviction and sentence passed by the Trial Court the accused. preferred an appeal before the Learned Session Judge. The Learned Session Judge however, allowed the appeal in part affirming the order of conviction passed by the Trying Magistrate. But be reduced the substantive sentence of imprisonment to 3 months only. He also affirmed the sentence of fine passed by the court below. 3. The accused being aggrieved by the judgment and order of the appellate court has preferred the instant revisional application. 4. Mr. But be reduced the substantive sentence of imprisonment to 3 months only. He also affirmed the sentence of fine passed by the court below. 3. The accused being aggrieved by the judgment and order of the appellate court has preferred the instant revisional application. 4. Mr. Nag, the Learned advocate representing the accused revisionist has submitted that the accused being a Government servant is likely to lose his job by suffering jail imprisonment for terms and as such deserves to be treated under the provisions of s. 360 of the Criminal Procedure Code or The Probation of Offenders Act, 1958. It is further urged that the court should give the benefit of this provision having regard to the nature of the offence and the character of the accused and other attending circumstances. In support of his argument he has tried to point out certain infirmities in the findings arrived at by the Trial Court as VI ell as by the court of appeal. In our view we need not go into the question, of merit of the case in view of the concurrent findings arrived at by both the courts below. Therefore, we cannot permit Mr. Nag to address us on this point. 5. The only point for consideration in this revision is whether the court should extend the benefit of s. 368 of the Criminal Procedure Code to the accused in the present case. The materials on record indicate that the accused is above 49 years of age and much above 21 years. So the appropriate law applicable to the facts of the case is contained in s. 360 of the Criminal Procedure Code. Mr. Shiv Seroop, the Learned Public Prosecutor, representing the State has supported the judgment and order of both the courts below and urged that the court should not extend the privilege or benefit of s. 360 of Criminal Procedure Code to the accused in view of the clear finding of the guilt of the accused by the successive court and having regard to the manner in which the offence was committed by the accused. As we have stated earlier that we should not go into the merits of the case for applying the particular provisions of this law. As we have stated earlier that we should not go into the merits of the case for applying the particular provisions of this law. Section 360 of the Criminal Procedure Code can only be invoked for the benefit of the accused provided he accepts the orders of conviction and sentence and applies for being treated with mercy under the special provision of this section. In applying this section the Court should consider the character, antecedents of the offender and the circumstances in which the offence was committed and after considering all these, if the court thinks that it is expedient that the offender should be released on probation of good conduct, the court may, instead of sentencing him to any punishment, direct that he be released on entering into of a bond with or without sureties and may also order the accused should appear and receive sentence when called upon during such period of keeping peace or good behaviour during probation. The only limitation is that such period should not exceed three years in duration. Mr. Saroop has of course candidly admitted that the High Court, in view of the provision of sub-s. (4) of s. 360 Criminal Procedure Code, may exercise such power in revision in favour of the accused. 6. Mr. Nag has referred to two decisions of the Supreme Court in support of his argument justifying the application of S. 360 of the Criminal Procedure Code in favour of the accused. These two decisions of course dealt with the provision of the Probation of Offenders Act, 1958. Be that as it may, the principle propounded in these two decisions of the Supreme Court may be relied upon in this case. The first decision is, Aithi Chander Rao v. State, reported In 1981 SC cases, 17. In this case the accused was sentenced to R.J. for two years for commission of offence under S. 304-A IPC and also a fine of Rs. 500/-. The Supreme Court having regard to the finding of the court of appeal that there was some contributory negligence and also having regard to the particular facts and circumstances of the case suspended the sentence of imprisonment and maintained the sentence of fine only. 500/-. The Supreme Court having regard to the finding of the court of appeal that there was some contributory negligence and also having regard to the particular facts and circumstances of the case suspended the sentence of imprisonment and maintained the sentence of fine only. The Supreme Court ordered release of the accused on probation of good conduct under S. 4 of The Probation of Offenders Act and also under s. 361 of the Criminal Procedure Code. 7. The second decision is Rajvir v. State of Haryana, reported in AIR 1958 SC 1278. In this case the Supreme Court having regard to the facts that there was nothing on record to indicate that the accused had any previous conviction and also having regard to the facts that, the accused appellant was a Government servant and that he might lose his service if the conviction and sentence of imprisonment were maintained gave the benefit of the Probation of Offenders Act, 1958, to the accused. Accordingly Supreme Court maintained the conviction and directed that the accused should be released of probation of good conduct under s. 4 of The Probation of Offenders Act. We have gone through these decisions and we find that the principles laid down in them should appropriately be applied to the facts of the present case. There is nothing on record to indicate that the successive courts below directed an enquiry in this regard. There is nothing on record to indicate the accused suffered any previous conviction or the accused had such antecedents and character that he did not deserve the application of the special provision contained in s. 360 of the Criminal Procedure Code. Mr. Saroop Learned Public Prosecutor has taken us to the finding of the Learned Session Judge in appeal that the accused was under influence of the liquor while driving the vehicle and that he did not heed to the caution given by the passengers on the truck at the relevant time. There is nothing on record to prove that the accused was really under influence of liquor. There is no material, to indicate that ever any investigation was directed in this regard by the Police or the prosecution. As to sounding of caution, it may be stated that there is no material to indicate the accused ever heard such caution from the passengers of the truck. There is no material, to indicate that ever any investigation was directed in this regard by the Police or the prosecution. As to sounding of caution, it may be stated that there is no material to indicate the accused ever heard such caution from the passengers of the truck. Besides, as stated earlier the court while applying the provision of s. 360 need not go into the merits of the case and examine propriety of the findings arrived at by the Trial Court or by the Court in appeal. The court in applying the special provision as contained in s. 360 of the Criminal Procedure Code should proceed from the premise that the accused committed the offence and had been convicted and sentenced by the order of the court for commission of such offences and in spite of all these facts, if the court thinks that the accused should be given the benefit of the special provision as contained in s. 360 of the Criminal Procedure Code, the court can on consideration of his character and antecedents and the attending facts and circumstances of a particular case grant him such benefit. 8. On consideration of all the facts and circumstances of the case and the arguments advanced by the Learned Counsel of both the sides we are inclined to allow the prayer of the accused revisionist under s. 360 of the Criminal Procedure Code. Accordingly we allow this revision in part while maintaining the order of conviction and sentence. But we suspend the sentence of imprisonment, imposed on the accused, under s. 360 Criminal Procedure Code on his furnishing a bond of Rs. 500/- with one surety to the satisfaction of the Learned Chief Judicial Magistrate for a period of one year of maintaining good behaviour and conduct. We however, maintain the sentence of fine but reduce it to Rs. 500/- on each count under Ss. 279, 337 and 338 I.P.C. The order for payment of percentage of the fine to the victims by the Trial Magistrate by way of compensation which has been upheld by the appellate court is also affirmed by us. 9. We make it clear that the order under s. 360 of the Criminal Procedure Code will not be given effect to if the sentence of fine, as modified by this Court is not complied with within two months of the date of the order. 9. We make it clear that the order under s. 360 of the Criminal Procedure Code will not be given effect to if the sentence of fine, as modified by this Court is not complied with within two months of the date of the order. It is further made clear that the accused will be called upon to serve the sentence of imprisonment if he fails to comply with any of the terms of the order passed under s 360 Criminal Procedure Code. We further put it on record that the service of the accused will not be affected any way on compliance of the order passed by this Court. P.K. Mazumdar, J: I agree. Application in part maintained; order of conviction, order of imprisonment suspended on condition of furnishing a bond for maintaining good behaviour and conduct.