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2008 DIGILAW 119 (KAR)

Bharath v. State by Bhatkal Town Police Station

2008-02-15

C.R.KUMARASWAMY

body2008
Judgment :- Kumaraswamy, J. I have heard the Learned Counsel for the petitioner and the Learned High Court Government Pleader for the State. I have perused the records. 2. The Learned Counsel for the petitioner restricts his arguments in respect of considering the provisions of Probation of Offenders Acts, 1958 to the case in hand. Considering the submissions of both sides, the point that arises for my consideration is: "Whether the petitioner is entitled for the benefit of provisions of Probation of Offenders Act, 1958?" 3. The relevant facts of the case leading to this revision petition are as follows: That on 31.5.2002 at about 9.35 accused No.1 was driving the KSRTC Bus bearing No.KA 09 F 1271 at Shifa Cross, Bhatkal. At the time, the charge sheet witness No.1 was alighting from the said bus. The bus moved all of a sudden and she fell down and sustained injuries. The bus driver of the said bus was driving the bus with high speed and also in a negligent manner. Therefore this accident has occured. The Investigating Agency has laid charge sheet against the accused for an offence punishable under Sections 279, 338 IPC and under Sections 184, 134(a) and (b) of the Motor Vehicles Act. In the Trial Court, PWs.1 to 11 were got examined and Exhibits P-1 to P-7 were got marked. The Trial Court has relied on the evidence of PWs. 1 to 11 and also the documentary evidence, and have convicted the petitioner for the offence punishable under Sections 279 and 338 IPC and under Sections 184, 134(a) and (b) of the Motor Vehicles Act. 4. Aggrieved by the same, petitioner has preferred an appeal before the Court of Sessions, Karwar. The appellate Court, after examining the whole evidence, have affirmed the finding but modified the sentence to the effect that instead of sentence of imprisonment he was directed to pay fine of Rs. 1,000/-. Aggrieved by the same, the petitioner is before this Court. 5. The nature of power of this Court in revision is the same as that of Court of appeal. But, such power is given to prevent gross and palatable failure of justice, and it should not be exercised in such a way as to give a right of appeal where such right is excluded by the code. 5. The nature of power of this Court in revision is the same as that of Court of appeal. But, such power is given to prevent gross and palatable failure of justice, and it should not be exercised in such a way as to give a right of appeal where such right is excluded by the code. Further, in order to satisfy as to the correctness, legality and propriety of the finding, I have examined the evidence of prosecution witnesses and also the documentary evidence. 6. PW- 1 has stated in his evidence that she was alighting from the bus. The bus moved all of a sudden. She fell down from the rear door and sustained injuries. Though this witness was cross-examined, nothing has been elicited in his cross examination to disbelieve his evidence. PW-5 is an eye witness. His evidence corroborates with the evidence of PW-1. PW-6 is another eye witness. He has stated in his evidence that when the bus came to Shifa Cross, one lady passenger got down from the bus and the bus moved, and consequently she sustained injuries to her waist. Though this witness was cross examined by the defence counsel, nothing has been elicited to disbelieve his evidence. PW-7 is also another eye-witness. He has turned hostile. But, during his cross-examination, he clearly admits that on 31.5.2001 at 9 p.m. a passenger who fell down from the bus was taken to the hospital. PW-9 is the doctor who examined the patient PW-1 Rukmini, aged about 20 years and she has sustained three injuries out of which third injury is greivous in nature. The Trial Court relying on the evidence of prosecution witnesses and also the documentary evidence, have come to the conclusion that the accused is guilty of the offence punishable under Sections 279 and 338 IPC and under Sections 184, 134(a) and (b) of the Motor Vehicles Act. 7. Normally this Court will not interfere with the concurrent findings of the fact while exercising the revisional jurisdiction. Further, the revisional Court should not substitute its own findings for that a Magistrate on the question of fact. Therefore, the finding recorded by the Trial Court as well as the appellate Court is sound and proper and it does not call for interference at this stage. 8. Further, the revisional Court should not substitute its own findings for that a Magistrate on the question of fact. Therefore, the finding recorded by the Trial Court as well as the appellate Court is sound and proper and it does not call for interference at this stage. 8. Learned Counsel for the petitioner submits that he confines his arguments only in respect of the application of the provisions of the Probation of offenders Act to give benefit under the said Act. 9. It is the contention of the Learned Counsel for the petitioner that the petitioner may be released on probation of good conduct or after due admonition. The accused can be given benefit under Section 3 or 4 of the Probation of Offenders Act even though he has paid the fine amount. No doubt, when fine amount is deposited or when the accused has undergone sentence, there is no bar for this Court to apply the provisions of the Probation of Offenders Act. Further, it is the contention of the Learned Counsel for the petitioner that the accused is aged about 48 years and he is the first offender and he has been sentenced to pay fine only. In view of the submission made by the Learned Counsel for the petitioner and since the petitioner is sentenced to pay fine and as he has paid the fine amount, in my view, the benefit of Probation of Offenders Act should be given to the accused who is working in the State Road Transport under taking. He was also having dependents like, wife and others, on him. 10. Learned Counsel for the petitioner relies on a decision of the Supreme Court in Trikha Ram Vs V.K. Seth And Another AIR 1988 SC 285 . The Hon’ble Supreme Court in the said decision has held as follows: "(A) Constitution of India, Art. 311 - Misconduct - Punishment - Conviction for criminal offence – Prior opportunity of hearing by disciplinary authority before imposing punishment - Not necessary. The Hon’ble Supreme Court in the said decision has held as follows: "(A) Constitution of India, Art. 311 - Misconduct - Punishment - Conviction for criminal offence – Prior opportunity of hearing by disciplinary authority before imposing punishment - Not necessary. AIR 1985 SC 1416 , Followed." "(B) Constitution of India, Art. 311 - Probation of Offenders Act (20 of 1958), S.12 Conviction for criminal offence - Release on probation - Dismissal of offender from service by disciplinary authority - Not permissible in view of S.12 as it will operate as disqualification for future employment with Government - Dismissal order converted into order of removal from service." Learned Counsel for the petitioner also relies on another decision of the Supreme Court in Rajbir Vs State of Haryana AIR 1985 SC 1278 . In the said case, the Hon'ble Supreme Court has held as under: "Penal Code (45 of 1860), S.323 - Conviction under - Sentence - Benefit of Probation of Offenders Act - Accused a Govt. servant - Parties to assault close relative - Accused released under S.4 of Act - HELD, further that in facts of the case conviction would not affect accused's service. (Probation of Offenders Act (20 of 1958), Ss.3,4)." 11. Therefore, following the decisions of the Apex Court mentioned above, while maintaining the conviction, this Court directs that the petitioner shall be released on probation of good conduct under Section 4 of the Act. He is directed to appear before the Trial Court within 90 days from the date of receipt of the order, who shall release him after due admonition. Petitioner has been dealt with under Section 4 of the probation of Offenders Act, 1958 and applying provisions of Section 12 of Probation of Offenders Act, 1958 convicted person shall not suffer disqualification attaching to conviction. I also feel it is not proper to direct the petitioner to enter the bond. The conviction should not affect his service.