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2011 DIGILAW 1863 (RAJ)

Rameshwar Lal v. State of Rajasthan

2011-09-01

R.S.CHAUHAN

body2011
JUDGMENT 1. - The petitioner is aggrieved by the judgment dated 4.12.2000 passed by Additional Chief Judicial Magistrate, Sikar, whereby the learned Magistrate has convicted and sentenced the petitioner for offences under Sections 279, 337, 338 and 304A I.P.C. For the offence under Section 279 I.P.C., the learned Magistrate has sentenced the petitioner to rigorous imprisonment of six months and imposed a fine of Rs. 500/- and further directed him in to undergo one month of simple imprisonment in default thereof. For the offence under Section 337 I.P.C., the learned Magistrate has sentenced the petitioner to rigorous imprisonment of three months and imposed of fine of Rs. 250/-, and directed to undergo 20 days of rigorous imprisonment in default thereof. For offence under Section 338 I.P.C., the petitioner was sentenced to rigorous imprisonment of one year with fine of Rs. 1,000/-, and was further directed to undergo rigorous imprisonment of three months in default thereof. Further, for the offence under Section 304-A, the petitioner was sentenced to rigorous imprisonment of two years and imposed with a fine of Rs. 10,000/-, and directed to further undergo rigorous imprisonment of six months in default thereof. Petitioner is also aggrieved by the judgment dated 23.8.2001 passed by the Additional Sessions Judge No. 1, Sikar, whereby the learned Judge has upheld the judgment dated 4.12.2000 and has confirmed the conviction and the sentence. 2. The brief facts of the case are that on 27.3.1988, the complainant, Satyadev Yadav, lodged a written report at Police Station Sadar, Sikar that on that day he and his family members were coming to Sikar from Salasar in Jeep No. Rs. 4045, driven by Rain Kumar. At about 9.30 A.M., when they reached near village Nani, suddenly a Jonga Jeep being driven rashly and negligently, dashed against their vehicle. Consequently, their vehicle turned turtled; the driver of Jeep, Ram Kumar died on the spot. The other passengers travelling in the jeep also sustained injuries. On the basis of the said report, a formal F.I.R., F.I.R. No. 36/1998 was registered under Sections 279, 337, 304A I.P.C. On completion of investigation, the police filed a charge-sheet against the petitioner for the offences under Sections 279, 337, 338 and 304A I.P.C. The prosecution examined fifteen witnesses and produced number of documents. On the basis of the said report, a formal F.I.R., F.I.R. No. 36/1998 was registered under Sections 279, 337, 304A I.P.C. On completion of investigation, the police filed a charge-sheet against the petitioner for the offences under Sections 279, 337, 338 and 304A I.P.C. The prosecution examined fifteen witnesses and produced number of documents. After going through the oral and documentary evidence, vide judgment dated 4.12.2000, the learned trial Court convicted the petitioner for the offences under Sections 279, 337, 338, 304A I.P.C. and sentenced him as aforesaid. Aggrieved by the said judgment, the petitioner preferred an appeal before the learned judge. However, vide judgment dated 23.8.2001, the learned Judge dismissed the appeal and confirmed the conviction and sentence passed by the learned trial Court. Hence, this petition before this Court. 3. Mr. Anoop Dhand, the learned counsel for the petitioner, has frankly conceded that he does not wish to argue the case on merit. However, he pleads only for granting the benefit of Probation of Offenders Act, 1958 ('the Act', for short). According to the petitioner, the case relates to the year 1988. Thus, the petitioner has been facing a trial and an appeal for more than two decades. Moreover, this happens to be the first and only offence committed by the petitioner. Furthermore, neither the learned Magistrate, nor the learned Judge has assigned any legal reason for denying the benefit of the Act to the petitioner. The learned Magistrate has merely stated that many persons were injured in the accident and the driver of the jeep died and one Bherulal suffered a fracture in his back bone. The accident took place with such a force that the jeep itself turned turtled, as such, the petitioner is not entitled to the benefit of probation. According to the learned counsel, since the Act is a social beneficial piece of legislation, it should be applied as liberally as possible. Therefore, he has pleaded that the benefit of Section 4 of the Act should be given to the petitioner. 4. On the other hand, the learned Public Prosecutor has vehemently contended that considering the large number of deaths due to vehicular accidents, the offence under Section 304A should not be taken lightly. Therefore, she has opposed the grant of probation to the petitioner. 5. Heard the learned counsel for the parties, perused the record and examined the impugned judgments. 6. On the other hand, the learned Public Prosecutor has vehemently contended that considering the large number of deaths due to vehicular accidents, the offence under Section 304A should not be taken lightly. Therefore, she has opposed the grant of probation to the petitioner. 5. Heard the learned counsel for the parties, perused the record and examined the impugned judgments. 6. The Act is, undoubtedly, part of the reformative theory of punishment. According to the reformative theory, the purpose of punishing an offender is not merely to incarcerate him for the alleged offence committed by him. In fact, the purpose of punishment is to ensure that the offender reforms himself. Moreover, in case where the offence happens to be his first offence, the Act enjoins that a chance be given to the offender to reform himself while freely roaming in the society at large. 7. The first statutory expression reflecting the philosophy of probation was introduced in Section 562 of the Criminal Procedure Code 1898; ever since then an endeavour was made to pass a law dealing with the grant of probation. The Indian Jails Committee's Report (1919-1920) recommended that first time offender should be released on probation. Eventually, the recommendation of the report of the Joint Committee of Parliament formed the basis for the Probation of Offenders Act, 1958. Section 4 of the Act is as under : 4. The Indian Jails Committee's Report (1919-1920) recommended that first time offender should be released on probation. Eventually, the recommendation of the report of the Joint Committee of Parliament formed the basis for the Probation of Offenders Act, 1958. Section 4 of the Act is as under : 4. Power of Court to release certain officers 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 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 tinder sub-section (1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the Court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender. (4) The Court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the Court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The Court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned. 8. Much water has flown since 1958. In the last fifty years, the reformative theory of punishment has become entrenched. Moreover, the changes in the attitude of the society coupled with the over-crowded prisons in India has made it imperative that Section 4 of the Act should be applied as liberally as possible. A bare perusal of the provision quoted above clearly reveals that Section 4 of the Act casts a duty on the trial Court to grant probation where the offence is not punished with death or the imprisonment with life and in case the offence is the first offence of the offender. Of course, while considering the grant of probation, the Court should be alive to the nature of the offence and in the character of the offender. However, probation should not be denied either mechanically or as knee-jerk reaction to the facts and circumstances of the case. The Court is duty bound to consider whether the release of the offender would jeopardise the law and order in society at large etc. or not. 9. While considering the grant or denial of probation, the Court cannot be influenced by the fact that large number of deaths are being caused by accidents. For, the Act requires that the nature of the offence needs to be seen by the Court. The law does not require that the extent of such crime being committed in the society should be considered. If the logic of the learned Judge were to be applied, then the benefit of the Act can be denied to large number of offenders. The law does not require that the extent of such crime being committed in the society should be considered. If the logic of the learned Judge were to be applied, then the benefit of the Act can be denied to large number of offenders. Such logic would defeat the very purpose of the Act. Thus, the logic given by the learned Judge is clearly untenable. 10. In the present case, the petitioner has been facing trial since 1988, he was convicted vide judgment dated 4.12.2000, his appeal was decided on 23.8.2001, his sentence was suspended by this Court vide order dated 27.8.2001. Thus, for the last ten years, the petitioner has been living a peaceful life. He has not disturbed the tranquility of the society at large. Hence, no fruitful purpose would be served by sending the petitioner behind the bars for serving out his sentence. 11. For the reasons stated above, the contention raised by the learned counsel for the petitioner is accepted. This Court confirms the judgments dated 4.12.2000 and 23.8.2001 and upholds the conviction of the petitioner for offences under Sections 279, 337, 338 and 304A I.P.C. But simultaneously this Court grants the benefit of Section 4 of the Act provided the petitioner submits a personal bond of Rs. 30,000/- with two sureties of the same amount to the satisfaction of the learned trial Court and maintains peace and tranquility for one year from the date of the submission of the bonds before the learned trial Court. The petitioner shall also be entitled to the benefit of Section 12 of the Act. Since the petitioner is already on bail, his bail bonds shall be discharged.The petition is, hereby, partly allowed.Revision partly allowed. *******