Delhi High Court
Ashok Kumar Dogra vs The State (N.C.T. Of Delhi) on 29 September, 2008
Author: Sudershan Kumar Misra
Bench: Sudershan Kumar Misra
* THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Revision. No.173/2008
Date of Decision : September 29, 2008
Ashok Kumar Dogra ......Petitioner
Through : Mr. A.N. Pandey,
Mr. Sanjeev Kumar
& Mr. A.K. Pandey,
Advocates
Versus
The State (N.C.T. of Delhi) ......Respondent
Through : Mr. Sanjay Lao,
Advocate for the State
CORAM :
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not ? Yes
3. Whether the judgment should be reported
in the Digest ? Yes
SUDERSHAN KUMAR MISRA, J
1. The petitioner has moved this Court under Section 397
read with Section 401 of the Code of Criminal Procedure. He
is aggrieved of an order passed by the Learned Additional
Sessions Judge, on 1.2.2008, in C.A. No. 29/2007. By that
order the Ld. ASJ confirmed the order of the Metropolitan
Magistrate, sentencing the petitioner to undergo rigorous
imprisonment for three months under Section 279 IPC, with a
fine of Rs.500/-; and rigorous imprisonment for one year with
Crl.Rev. No.173/2008 Page 1 of 9
fine of Rs.5,000/- under Section 304-A IPC. The facts in a nut-
shell are as follows:
2. On 26.6.1995, while driving a red line bus bearing
registration No. DL-1P-2315 at Peera Garhi Chowk, Delhi, the
petitioner hit a scooter bearing No. DL-1S-1132. The scooter
rider, who was injured succumbed to his injuries later on. PW-
8, Ct. Randhir Kumar was an eye witness to the accident.
Before the Metropolitan Magistrate, Ct. Randhir Kumar
deposed that the accident was a result of rash and negligent
driving of the petitioner. Considering the entire evidence
produced by the prosecution the petitioner was convicted by
the Metropolitan Magistrate. The appeal preferred by the
petitioner was also dismissed by the Sessions Court, holding
that there is no infirmity in the order passed by the Trial
Court.
3. On 28th March, 2008, counsel for the petitioner confined
his plea in this matter to the reduction of sentence and/or the
benefit of Sections 3 and 4 of the Probation of Offenders Act,
1958.
4. The counsel for the petitioner contends that the
petitioner has faced the rigors of trial for nearly twelve years
and has already served more than five months of his sentence.
Furthermore, petitioner is the only earning member of the
family and has to support his wife and four minor children. It
is also contended that the petitioner has no history of ever
being involved in any criminal proceedings. Counsel of the
petitioner submits that keeping in mind these factors, either
the sentence of the petitioner may be reduced or the petitioner
Crl.Rev. No.173/2008 Page 2 of 9
may be released on probation of good conduct as
contemplated by Sections 3 and 4 of the Probation of
Offenders Act, 1958.
5. Counsel for the State on the other hand opposes the
contention of the petitioner and relies on the decision of the
Supreme Court in Dalbir Singh Vs. State of Haryana 2000
Cri.L.J. 2283. In that case, whilst dealing with the question
of benefit of probation being granted to offenders under
Section 304-A of the IPC, the Supreme Court categorically
stated that the benefit of any such probation should not be
extended to persons convicted under Section 304-A for rash
and negligent driving.
6. The Probation of Offenders Act, 1958 is a benevolent
legislation. The Supreme Court in Abdul Qayum Vs. State of
Bihar, (1972) 1 SCC 103 held that;
"2....The Act is a milestone in the progress
of the modern liberal trend of reform in the
field of penology. It is the result of the
recognition of the doctrine that the object of
criminal law is more to reform the individual
offender than to punish him. The provisions
of the Act must therefore be viewed in the
light of this laudable reformatory object
which the Legislature was seeking to
achieve by enacting the legislation..."
7. Discussing the scope and the object of the above Act the
Supreme Court in Commandant, 20th Battalion, ITB
Police Vs. Sanjay Binjola,(2001) 5 SCC 317 held that;
"7.The Probation of Offenders Act has been
enacted in view of the increasing emphasis
on the reformation and rehabilitation of the
offenders as useful and self-reliant members
of society without subjecting them to
deleterious effects of jail life. The Act
empowers the court to release on probation,
in all suitable cases, an offender found
guilty of having committed an offence not
punishable with death or imprisonment for
life or for the description mentioned in
Sections 3 and 4 of the said Act."
Crl.Rev. No.173/2008 Page 3 of 9
8. The relevant portions of Sections 3 and 4 of the
Probation of Offenders Act, 1958 reads;
"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.
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."
"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 called upon during such
period, not exceeding three years, as the
Crl.Rev. No.173/2008 Page 4 of 9
court may direct, and in the meantime to
keep the peace and be of good behavior.
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) is made, the court shall take into
consideration the report, if any, of the
probation officer concerned in relation to
the case. "
9. By the expression "the court may", both these sections
make it clear that the courts have to exercise their discretion
while extending the benefit under the sections. Of course,
discretion under any Statue has to be exercised judicially. The
sections also provide that such discretion should be exercised
only if the courts think that "it is expedient" to release the
accused on probation. The Supreme Court in Sitaram Paswan
v. State of Bihar,(2005) 13 SCC 110, held that;
"8...For exercising the power which is
discretionary, the court has to consider the
circumstances of the case, the nature of the
offence and the character of the offender.
While considering the nature of the offence,
the court must take a realistic view of the
gravity of the offence, the impact which the
offence had on the victim. The benefit
available to the accused under Section 4 of
the Probation of Offenders Act is subject to
the limitation embodied in the provisions
and the word "may" clearly indicates that
the discretion vests with the court whether
to release the offender in exercise of the
powers under Section 3 or 4 of the
Probation of Offenders Act, having regard to
the nature of the offence and the character
of the offender and overall circumstances of
the case. The powers under Section 4 of the
Probation of Offenders Act vest with the
court when any person is found guilty of the
Crl.Rev. No.173/2008 Page 5 of 9
offence committed, not punishable with
death or imprisonment for life. This power
can be exercised by the courts while finding
the person guilty and if the court thinks that
having regard to the circumstances of the
case, including the nature of the offence and
the character of the offender, benefit should
be extended to the accused, the power can
be exercised by the court even at the
appellate or revisional stage and also by this
Court while hearing the appeal under
Article 136 of the Constitution."
10. Similarly the Supreme Court in MCD Vs. State of
Delhi,(2005) 4 SCC 605, whilst analyzing Section 4 held
that:
"22. We have already reproduced Section 4
of the POB Act. It applied to all kinds of
offenders whether under or above 21 years
of age. This section is intended to attempt
possible reformation of an offender instead
of inflicting on him the normal punishment
of his crime. The only limitation imposed by
Section 6 is that in the first instance an
offender under twenty-one years of age, will
not be sentenced to imprisonment. While
extending benefit of this case, the discretion
of the court has to be exercised having
regard to the circumstances in which the
crime was committed, the age, character
and antecedents of the offender. Such
exercise of discretion needs a sense of
responsibility. The offender can only be
released on probation of good conduct
under this section when the court forms an
opinion, having considered the
circumstances of the case, the nature of the
offence and the character of the offender,
that in a particular case, the offender should
be released on probation of good conduct.
The section itself is clear that before
applying the section, the Magistrate should
carefully take into consideration the
attendant circumstances..."
11. However, in Commandant, 20th Battalion, ITB Police
Vs. Sanjay Binjola, (2001) 5 SCC 317 apart from discussing
the circumstances under which such discretion should be
exercised, the Supreme Court also pointed out cases where
such benefit should not be extended. The Apex Court held
that;
Crl.Rev. No.173/2008 Page 6 of 9
"9....It is true that nobody can claim the
benefit of Sections 3 and 4 of the Probation
of Offenders Act as a matter of right and the
court has to pass appropriate orders in the
facts and circumstances of each case having
regard to the nature of the offence, its
general effect on the society and the
character of the offender, etc. There are
laws which specifically direct that the
provisions of the Probation of Offenders Act
shall not apply to the persons convicted for
those offences and there may be cases
under other laws as well which may not
justify the exercise of the powers of the
Probation of Offenders Act. Even apart from
such exclusions the courts should be wary of
extending the benefit of the Probation of
Offenders Act to offences relating to
corruption, narcotic drugs, etc. This Court
has indicated in Dalbir Singh v. State of
Haryana that benefit of the Probation of
Offenders Act should not normally be
afforded in respect of the offences under
Section 304-A IPC when it involves rash or
negligent driving. Those are instances for
showing how the nature of the offence could
dissuade the court from giving the
benefit..."
12. In Dalbir Singh v. State of Haryana (supra) the
Supreme Court held that;
"13. Bearing in mind the galloping trend in
road accidents in India and the devastating
consequences visiting the victims and their
families, criminal courts cannot treat the
nature of the offence under Section 304A
IPC as attracting the benevolent provisions
of Section 4 of the PO Act. 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. A professional driver pedals the
accelerator of the automobile almost
throughout his working hours. He must
constantly inform himself that he cannot
afford to have a single moment of laxity or
inattentiveness when his leg is on the pedal
of a vehicle in locomotion. He cannot and
should not take a chance thinking that a
Crl.Rev. No.173/2008 Page 7 of 9
rash driving need not necessarily cause any
accident; or even if any accident occurs it
need not necessarily result in the death of
any human being; or even if such death
ensues he might not be convicted of the
offence and lastly that even if he is
convicted he would be dealt with leniently
by the court. He must always keep in his
mind the fear psyche that if he is convicted
of the offence for causing death of a human
being due to his callous driving of vehicle he
cannot escape from jail sentence. This is the
role which the courts can play, particularly
at the level of trial courts, for lessening the
high rate of motor accidents due to callous
driving of automobiles."
13. This Court in Vijay Kumar Vs. State, 2005 (6)
AD(Delhi) 37 was dealing with a similar situation as in the
instant case. In that case it was contended by the petitioner
sought release on probation under Probation of Offenders Act
on the ground that the petitioner had a family which was
completely dependent on him. This Court held that;
"2....In this case one person has lost his life
on account of rash and negligent driving of
the petitioner. The petitioner was a driver of
a commercial vehicle. He was required to be
on the wheels almost whole of the day. If
such drivers are excused for being rash, the
consequences can be anybody's guess. Such
drivers are required to exercise extra
caution on their speed and manner of
driving particularly when they are driving in
a crowded city like Delhi. Further they
should be particularly careful about those
on two wheelers driving on the same roads
for they are vulnerable to serious injuries in
case of an accident. The punishment to such
offenders should, therefore, have a
deterrent effect..."
Relying on the decision of the Supreme Court in Dalbir Singh
(supra), this court dismissed the revision petition.
14. In the case at hand, although the probation report
favours the petitioner, however, as held by the Supreme Court
in MCD Vs. State of Delhi and Anr. (2005) 4 SCC 605
Crl.Rev. No.173/2008 Page 8 of 9
whilst the Court must take into consideration the probation
report before coming to any conclusion, the Court is not bound
by this report. Furthermore, the counsel for the petitioner has
also pointed out some mitigating factors, such as, a dependant
family and no past criminal record, but the fact remains that
an innocent person has lost his life and both the Trial Court as
well as the court of Sessions has decided against the
petitioner. As noted by the Supreme Court in Dalbir Singh
(supra)
"1.When automobiles have become death
traps any leniency shown to drivers who are
found guilty of rash driving would be at the
risk of further escalation of road accidents.
All those who are manning the steering of
automobiles, particularly professional
drivers, must be kept under constant
reminders of their duty to adopt utmost care
and also of the consequences befalling them
in cases of dereliction. One of the most
effective ways of keeping such drivers under
mental vigil is to maintain a deterrent
element in the sentencing sphere. Any
latitude shown to them in that sphere would
tempt them to make driving frivolous and a
frolic."
15. Keeping in view the facts of the case and the judgments
in the cases of Dalbir Singh (supra) and Sanjay Binjola
(supra) by the Supreme Court, I think that the punishment
awarded by the Court of the Metropolitan Magistrate and
confirmed by the Court of Sessions is quite reasonable. No
interference is called for from this Court.
16. The revision petition is accordingly dismissed.
Sudershan Kumar Misra, J.
September 29, 2008 mb Crl.Rev. No.173/2008 Page 9 of 9