Madras High Court
Nithin vs State Rep By Its on 1 February, 2022
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl.R.C.No.939 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 1.2.2022
CORAM
THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.R.C.No.939 of 2019
Nithin Petitioner
Vs.
State Rep by its
Inspector of Police,
TIW (East) Police Station,
Coimbatore. Respondent
PRAYER: Criminal Revision Case is filed under Sections 397 & 401
of Criminal Procedure Code to set aside the judgment passed in Crl.A.149
of 2019 dated 18.07.2019 on the file of the I Additional District-cum-
Sessions Court, Coimbatore confirming the judgment passed in CC.No.18
of 2017 dated 10.04.2019 on the Judicial Magistrate No.VIII, Coimbatore.
For Petitioner : Mr.V.Karthik, Sr.Counsel for
Mr.S.Saravanan
For Respondent : Mr.S.Sugendran, GA (Crl.side)
Mr.Guruprasad, Amicus Curiae
(appointed to assist the legal heirs of the
deceased)
https://www.mhc.tn.gov.in/judis 1
Crl.R.C.No.939 of 2016
ORDER
This Criminal Revision Case has been filed against the judgment of the I Additional District and Sessions Judge, Coimbatore made in CA.No.149 of 2019 dated 18.07.2019, dismissing the Appeal and thereby confirming the conviction and sentence imposed by the learned Judicial Magistrate No.VIII, Coimbatore dated 10.04.2019 made in CC.No.18 of 2017 convicting the petitioner for the offence under Sections 279 and 304(A) IPC.
2. Brief facts of the case are as under:-
i) On 22.10.2016 at about 17.30 hours, the petitioner/accused, who was driving his motorcycle bearing registration No. No.TN45 BH 2984 from west to east direction in Coimbatore-Avinashi Road near Chinniyampalayam, opposite Mariamman Temple water tank, had dashed against one Arukutti, who was crossing the said road from north to south direction and caused the accident.
ii) In the said accident, the victim Arukutti had sustained grievous injuries and later succumbed to the injuries. https://www.mhc.tn.gov.in/judis 2 Crl.R.C.No.939 of 2016
iii) On the complaint given by PW2, nephew of the victim, a case in Crime No.704 of 2016 was registered by the respondent police for offence punishable under Sections 279 and 304A IPC. The respondent-police, after completion of investigation, filed the final report against the petitioner/accused for offence punishable under Sections 279 and 304A IPC before Judicial Magistrate VII, Coimbatore.
iv) The case was taken up on file in C.C.No.18 of 2017 and when questioned, the petitioner/accused had denied the charges.
v) The prosecution, in order to prove the offence against the accused, had examined P.Ws.1 to 7 and marked Exs.P1 to P9 through the relevant witnesses.
vi) As per the prosecution, PW2, Parthiban is a relative of the deceased Arukutti and on 22.10.2016 at about 5.30 pm, PW2 and the deceased Arukutti had crossed the Coimbatore-Avinashi Road at Chinniyampalayam, Opposite Mariamman Temple from north to south direction and at that time, the petitioner/accused, who was driving a motorcycle in the said road from west to east direction in a rash and negligent manner, had dashed against the deceased. https://www.mhc.tn.gov.in/judis 3 Crl.R.C.No.939 of 2016
vii) Thereupon, PW2 had rushed to the place of occurrence and had found that the victim was lying down severely injured. PW2 had also noted the registration number of the motorcycle and identified the accused. In the accident, the accused had also sustained injuries.
viii) PW2 had sent the injured Arukutti in KGM hospital ambulance to KMCH Hospital and the petitioner/accused was sent to Muthu Hospital in the Ambulance belonging to that Hospital. On the same day, viz., 22.10.2016 at 7.30 pm, the Doctors declared the death of the victim Arukutti. After informing the same to the relatives of the deceased, PW2 had gone to the respondent police station on 23.10.2016 at about 00.30 hrs and gave Ex.P1/complaint.
ix) On receipt of Ex.P1/complaint, one Rajamani, Sub Inspector of Police had registered a case in Crime No.704/2016 dated 23.10.2016 under FIR Ex.P3. The Sub Inspector of Police, after registration of the case on 23.10.2016, placed the records before PW7/Vijayakumari, the then Inspector of Police for investigation.
x) PW7 took up the investigation and on the same day examined and recorded the statement of PW2/Parthiban, who is a witness to the https://www.mhc.tn.gov.in/judis 4 Crl.R.C.No.939 of 2016 occurrence. On the same day at about 6.30 am, PW7 visited the scene of occurrence and prepared Ex.P2/observation mahazar and Ex.P4/Rough Sketch in the presence of PW2/Parthiban and PW4/Thirumoorthy and recorded their statements. Thereafter, PW7 had visited KMCH Hospital and obtained Ex.P5/Accident Register and Ex.P6/Death Intimation Report. On the same day at about 8.00 am, PW7 conducted inquest on the body of the deceased in CMC hospital Coimbatore, in the presence of PW1/Vengidanaidu, PW3/Ragu, PW5/Kanagaraj and PW6/Boopathi, who are relatives of the deceased and subsequently, PW7 had examined them and recorded their statements. Ex.P7 is the inquest report. Thereafter, PW7 sent the body for post mortem on the same day at 11.40 am.
xi) Dr.Kulanthaiandi conducted autopsy on the body of the deceased at CMC Hospital, Coimbatore. Ex.P8 is the post mortem certificate. On 23.10.2017, PW7 had examined the Doctor, who conducted autopsy and recorded his statement.
xii) On 24.10.2016, PW7 sent the motorcycle of the accused for inspection and the Motor Vehicle Inspector, who had inspected the vehicle on the same day, had given his Inspection Report/Ex.P9. PW7 had https://www.mhc.tn.gov.in/judis 5 Crl.R.C.No.939 of 2016 examined the Motor Vehicle Inspector on 24.10.2016 and recorded his statement. Thereafter, on 24.10.2016, PW7 arrested the accused, who was, later, released on bail on the same day.
xiii) Thereafter, she had completed the investigation and filed the final report against the accused under Section 279, 304A IPC.
xiv) On completion of examination of the prosecution witnesses, when the accused was questioned under Section 313(1)(b) Cr.PC in respect of incriminating materials against him, the accused denied the same, however, no evidence was let in by him and no documents were marked on his side.
xv) The Trial Court found the petitioner guilty for the offence under Sections 279 and 304A IPC and sentenced him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.500/- in default to undergo simple imprisonment for a further period two weeks for the offence punishable under Sections 279 and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for a further period of one month under section 304A IPC.
https://www.mhc.tn.gov.in/judis 6 Crl.R.C.No.939 of 2016
xvi) As against the conviction and sentence, the petitioner filed Criminal Appeal No.149 of 2019 before the learned I Additional District and Sessions Judge, Coimbatore and the Appellate Court, by its judgment dated 18.7.2019, dismissed the Appeal by confirming the conviction and sentence, aggrieved against which, the present Criminal Revision Case has been filed by the petitioner.
3. The sum and substance of the arguments made by the learned Senior Counsel Mr.V.Karthik representing the petitioner is as under:-
i) The petitioner was aged about 19 years at the time of the occurrence and he was undergoing B.E. Course. The accident had occurred on a Highway, at a place where there was centre median running for about 2 to 3 kms. It had occurred at a place where there was no zebra crossing and the victim had attempted to cross the road by scaling the centre median.
ii) Though there had been some lapses on the part of the petitioner in driving the vehicle with caution, the entire blame cannot be fastened on the petitioner. There had been some amount of contributory negligence on the part of the victim, a 70 years old man, in crossing the road on a Highway where there was no pedestrian/zebra crossing, by scaling the centre https://www.mhc.tn.gov.in/judis 7 Crl.R.C.No.939 of 2016 median.
iii) The petitioner was only a college student at the time of accident and not a professional driver and he was also not found to be under the influence of alcohol or any sort of intoxication. In fact, the petitioner was also severely injured in the accident.
iv) Now the petitioner has completed his graduation and has recently secured a job in a multi national company and could not cope up with his regular day to day affairs due to the ordeal of the criminal proceedings and the conviction thereupon.
v) Though there are several arguable points, the petitioner is now prepared to compensate the legal heirs of the deceased by paying a sum of Rs.5,00,000/- as ex gratia payment, exclusive of other amount/compensation which they are entitled to receive under any law.
vi) Though it is a case of road accident, there is no absolute bar for invoking the provisions of Probation of Offenders Act, 1958 and to release the petition after admonition.
vii) Though the petitioner was below 21 years, both the courts below have not come forward to extend the benefit of the provisions of Sections 3 https://www.mhc.tn.gov.in/judis 8 Crl.R.C.No.939 of 2016 and 4 of the Probation of Offenders Act, 1958 and they have not recorded any reason for such denial of extending the benefit as contemplated under Section 6 of the said Act and thereby the order passed by the courts below are liable to be set aside.
4. Per contra, Mr.S.Sugendran, learned Government Advocate (Criminal Side) would submit that it is a case where the petitioner had driven the motorcycle in a rash and negligent manner and had dashed against the victim resulting in the victim sustaining injuries and later succumbing to death. However, he would fairly submit that the petitioner had also sustained injuries in the accident and the accident had occurred on a Highway where there is no pedestrian/zebra crossing and the centre median was running for 2 to 3 kms without any interruption. He would also submit that the accident had occurred when the victim had crossed the road by scaling the centre median.
5. Based on the above submissions and also the offer made by the learned Senior Counsel for the petitioner to compensate the legal heirs of the deceased, this court had directed the learned Government Advocate Mr.S.Sugendran to put the legal heirs of the deceased on notice. https://www.mhc.tn.gov.in/judis 9 Crl.R.C.No.939 of 2016
6. Pursuant to the above direction, the legal heirs of the deceased viz., A.Dhanabakiam (wife of the deceased) and Swetha (daughter of the deceased) had appeared before this court on 21.10.2021 and at their request, this court appointed Mr.Guruprasad, learned counsel as amicus curiae to assist the court and the legal representatives of the deceased. He was also directed to address the court with regard to invoking the provisions of the Probation of Offenders Act, 1958.
7. Subsequently, on being, prima facie, satisfied with regard to applicability of the provisions of the Probation of Offenders Act to the case on hand, this court, enquired the legal heirs of the victim and they had submitted that they are prepared to accept the compensation offered by the petitioner and condone the act of the petitioner and pardon him. They have also submitted that they had filed M.C.O.P No.230 of 2017 before MACTOP Tribunal, Tirupur claiming compensation of a sum of Rs.20,00,000/-, which was dismissed for default and later, it was restored to file and the matter was settled for a sum of Rs.4,00,000/- before the Lok Adalat on 15.12.2021.
8. The legal heirs of the deceased have filed separate Affidavits in this https://www.mhc.tn.gov.in/judis 10 Crl.R.C.No.939 of 2016 regard, the relevant portions of the same are extracted hereunder for ready reference:-
"Affidavit of A.Dhanabakiam
5. I humbly submit that pending revision, the petitioner had pleaded before this Honourable Court to extend the benefit of the Probation of Offenders Act 1958 and he has volunteered to pay adequate and just compensation to the victims of the crime (For me and my daughter Swetha). I most respectfully state that I and my daughter appeared in person before this Honorable Court on 15.12.2021 and this court was pleased to enlighten and enquire us in this regard.
6. I most respectfully state that though I lost my beloved husband in a terrific accident, which cannot be compensated by any means; but considering the plight of the Petitioner who will be put behind bars in his young age and having the benefit of job offers to run his livelihood; I with a benevolent and caring attitude wish to pardon the Petitioner. Further, the petitioner/accused has also regretted for his act. I out of my own volition, with proper legal counselling, without any fear or coercion and undue influence do hereby pardon the petitioner/accused and agree to receive the compensation as fixed by this https://www.mhc.tn.gov.in/judis 11 Crl.R.C.No.939 of 2016 Honorable Court.
Affidavit of Swetha
5. I humbly submit that pending revision, the petitioner had pleaded before this Honourable Court to extend the benefit of the Probation of Offenders Act 1958 and he has volunteered to pay adequate and just compensation to the victims of the crime (For me and my mother Dhanabakiam). I most respectfully state that I and my mother appeared in person before this Honourable Court on 15.12.2021 and this court was pleased to enlighten and enquire us in this regard.
6. I most respectfully state that though I lost my beloved father in a terrific accident, which cannot be· compensated by any means; but considering the plight of the Petitioner who will be put behind bars in his young age and having the benefit of job offers to run his livelihood; I with a benevolent and caring attitude wish to pardon the Petitioner. Further, the petitioner /accused has also regretted for his act. I out of my own volition, with proper legal counselling, without any fear or coercion and undue influence do hereby pardon the petitioner /accused and agree to receive the compensation as fixed by this Honourable Court."
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9. The subsequent development in the case being so, Mr.V.Karthik, learned Senior Counsel appearing for the petitioner would submit that the manner in which the accident had occurred, as could be seen from the materials produced by the prosecution itself would prove that it had occurred not only due to the lapse on the part of the petitioner in taking due care in driving the motorcycle, but also, equally due to the negligence on the part of the victim in crossing the highway by scaling the centre median and apart from PW1, who is a close relative of the deceased, there is no other ocular witness to speak about the occurrence or to attribute entire negligence to the petitioner. He would submit that admittedly, even as per the prosecution, there was a three feet high centre median in the middle of the highway extending for about 2 to 3 Kms and the accident had occurred when the victim, aged about 70 years, had attempted to scale over the centre median and cross the national highway. He would further submit that the petitioner is not a professional driver but, was only a student at the time of the accident and he was returning back to his home from college and the petitioner was not under any intoxication and it is only an unfortunate incident. He would also submit that except PW2, who is a close relative of the deceased, there is no other ocular witness to prove https://www.mhc.tn.gov.in/judis 13 Crl.R.C.No.939 of 2016 that the petitioner had driven the motorcycle in a rash and negligent manner.
10. Contending further that though there are several arguable points available for the petitioner, the learned Senior Counsel for the petitioner would submit that considering the fact that the accident had occurred not only due to the some negligence on the part of the petitioner, a 19 year old boy while returning from college, but, also due to the negligence on the part of the victim, a 70 year old man, when he had indulged into the prohibitory action of scaling the centre median on a Highway in the absence of any pedestrian/zebra crossing, which would definitely have caused shock and surprise to the rider of the motorcycle resulting in loss of control and zigzag movement of the vehicle on a highway even if it is ridden in a moderate speed. He would also submit that for all these years, the petitioner had suffered the rigors for having become the accused of the circumstances and now, he had secured a job in a multi national company on completion of his education amidst the trial of the criminal proceedings and therefore, he craves indulgence of this court and seeks for some leniency towards the petitioner to have a fresh beginning of life, by invoking either the provisions of Probation of Offenders Act, 1958 or https://www.mhc.tn.gov.in/judis 14 Crl.R.C.No.939 of 2016 Section 360 Cr.PC.
11. Mr.Guruprasad, learned counsel, who was appointed as amicus curiae, has made his submissions as under:-
i) Admittedly, the accident had occurred in a Highway due to the hitting of the motorcycle driven by the petitioner, a 19 years old boy, while he was returning from college and the victim, a 70 years old man, who had attempted to scale the centre median to cross the Highway in the absence of any pedestrian/zebra crossing, had sustained grievous injuries and later succumbed to death.
ii) The petitioner was not found under any intoxication at the time of the accident and he had also sustained some injuries in the accident.
iii) Certainly, there is some amount of contributory negligence on the part of the victim in crossing the road without any caution.
iv) The evidence of PW7 would prove that the victim had attempted to cross the road where there was no pedestrian/zebra crossing and that it was a national Highway. PW2, the nephew of the deceased had categorically admitted that the place of accident is a national Highway and there was a centre median at a height of 3 feet and there was no traffic https://www.mhc.tn.gov.in/judis 15 Crl.R.C.No.939 of 2016 sign or zebra crossing at the place and that the pedestrians have to go 2 or 3 kms to cross the road. Except PW2, who is a close relative of the deceased, there is no other ocular witness to speak about the rash and negligence on the part of the petitioner in driving the motorcycle.
v) The legal heirs of the deceased had earlier filed M.C.O.P.No.230 of 2017 before MACTOP Tribunal, Tirupur claiming compensation of a sum of Rs.20,00,000/-, which was dismissed for default and later, it was restored to file and the matter was settled for a sum of Rs.4,00,000/- before the Lok Adalat on 15.12.2021.
vi) Though it is a case of death by the road accident attracting the offence punishable under Section 304A IPC, the Hon'ble Apex Court in State vs. Sanjiv Bhalla (2015) 13 SCC 444, by referring to various earlier decisions regarding the offence punishable under Section 304A IPC and the provisions of the Probation of Offenders Act, has held that an absolute principle of law cannot be laid down that in no case falling under Section 304-A IPC should a convict be released on probation and the procedure for grant of probation should not be disregarded outright, but, should be followed and and appropriate decision can be taken depending upon the https://www.mhc.tn.gov.in/judis 16 Crl.R.C.No.939 of 2016 facts of the case.
vii) On the date of accident, the petitioner was only 19 years old and he is a first time offender. It is a fit case for admonition instead of directing the petitioner to undergo sentence invoking the provisions of Probation of Offenders Act or Section 360 Cr.P.C. for releasing the petitioner on probation. The courts below have also not recorded reasons for not extending such benefit to the petitioner.
12. Having heard the learned counsel appearing for the parties and the learned amicus curiae and perused the materials available on record, this court finds that the legal heirs of the deceased had been duly compensated and a just balance has been arrived at. Therefore, this court is of the view that it is a fit case for granting the benefit of the provisions of Probation of Offenders Act, 1958 to the petitioner.
13. Section 3 of the Probation of Offenders Act, 1958 confers power upon the courts to release certain offenders after admonition. When a person is guilty of offence punishable for any offence with imprisonment for not more than two years or with fine or with both under the Penal Code 1860 or any other law and there is no previous conviction proved against https://www.mhc.tn.gov.in/judis 17 Crl.R.C.No.939 of 2016 such offender. The said legal provision is extracted hereunder for ready reference:-
"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."
https://www.mhc.tn.gov.in/judis 18 Crl.R.C.No.939 of 2016
14. When the court empowered to try and sentence the offender to imprisonment declines to deal with him under Section 3 of the Probation of Offenders Act, 1958, the Appellate Court or the revisional court, as the case may be, i.e., either the Sessions Court or the High Court is empowered under Section 11(1) of the Act to make an order under this Act. It is relevant to extract Section 11(1) of the Act, which reads as under:-
"11. Courts competent to make order under the Act, appeal and revision and powers of courts in appeal and revision.— (1) Notwithstanding anything contained in the Code or any other law, an order under this Act, may be made by any court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision."
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15. It is relevant to note that the Hon'ble Apex Court, in several cases, has held that in case of motor accidents, rash and negligent driving should be taken serious note of and in number of cases, it has desisted from invoking the provisions of Probation of Offenders Act, 1958 However, in State vs. Sanjiv Bhalla (2015) 13 SCC 444, taking into consideration its earlier decisions, the Apex Court has held as under:-
"11. Every accused person need not be detained, arrested and imprisoned—liberty is precious and must not be curtailed unless there are good reasons to do so. Similarly, everybody convicted of a heinous offence need not be hanged however shrill the cry “off with his head”— and this cry is now being heard quite frequently. Life is more precious than liberty and must not be taken unless all other options are foreclosed. [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] Just sentencing is as much an aspect of justice as a fair trial and every sentencing Judge would do well to ask: Is the sentence being awarded fair and just?
12. In Ved Prakash v. State of Haryana [(1981) 1 SCC https://www.mhc.tn.gov.in/judis 20 Crl.R.C.No.939 of 2016 447 : 1981 SCC (Cri) 182] this Court observed that: (SCC p. 448, para 1) “1. … [I]t is the duty of the sentencing court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitation slant.” A little later in the judgment, it was held that: (SCC p. 448, para 1) “1. [E]ven if the Bar does not help, the Bench must fulfil the humanising mission of sentencing implicit in such enactments as the Probation of Offenders Act.” In other words, this Court was of the view that punishment should be rehabilitative and humanising and, therefore, need not necessarily be retributive in character.
13. Subsequently, in Hari Singh v. Sukhbir Singh [(1988) 4 SCC 551 : 1988 SCC (Cri) 984] this Court held that extending the benefit of probation to first-time offenders is generally not inappropriate. The humanising principle was extended even to a conviction under Part II of Section 304 IPC in State of Karnataka v. Muddappa [(1999) 5 SCC https://www.mhc.tn.gov.in/judis 21 Crl.R.C.No.939 of 2016 732 : 1999 SCC (Cri) 1046] in which case the benefit of release on probation was granted to the convict.
14. The benefit of the provisions of Section 6 of the Probation of Offenders Act (relating to restrictions on the imprisonment of offenders below 21 years of age) [ “6.Restrictions on imprisonment of offenders under twenty-one years of age.—(1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Section 3 or Section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.(2) For the purpose of satisfying itself whether it would not be desirable to deal under Section 3 or Section 4 with an https://www.mhc.tn.gov.in/judis 22 Crl.R.C.No.939 of 2016 offender referred to in sub-section (1), the court shall call for a report from the Probation Officer and consider the report, if any, and other information available to it relating to the character and physical and mental conditions of the offender.”] was extended to persons convicted of attempted rape. This was in State of Haryana v. Prem Chand [(1997) 7 SCC 756 : 1997 SCC (Cri) 1176] which was followed in State of H.P. v. Dharam Pal [(2004) 9 SCC 681 : 2004 SCC (Cri) 1477] .
15. Similarly, in Om Prakash v. State of Haryana [(2001) 10 SCC 477 : 2003 SCC (Cri) 799] the convicts, first-time offenders, were given the benefit of Section 360 and Section 361 of the Criminal Procedure Code and it was held that reasons ought to have been recorded for the denial of such a benefit. [ “360.Order to release on probation of good conduct or after admonition.—(1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when https://www.mhc.tn.gov.in/judis 23 Crl.R.C.No.939 of 2016 any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the court before which he is convicted, regard being had to the age, character or antecedents of 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, 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….(2)***(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Penal Code, 1860 punishable with not more than two years' imprisonment or any offence https://www.mhc.tn.gov.in/judis 24 Crl.R.C.No.939 of 2016 punishable with fine only and no previous conviction is proved against him, the court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.(4)-(10) 361.Special reasons to be recorded in certain cases.—Where in any case the court could have dealt with—(a) an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or(b) a youthful offender under the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders,but has not done so, it shall record in its judgment the special reasons for not having done so.”] The offence in that case was punishable under Section 323 and Section 325 read with Section 148 and Section https://www.mhc.tn.gov.in/judis 25 Crl.R.C.No.939 of 2016 149 IPC.
16. In the meanwhile, however, in Dalbir Singh v. State of Haryana [(2000) 5 SCC 82 : 2004 SCC (Cri) 1208] this Court declined to give to the appellant, convicted of an offence punishable under Section 279 and Section 304-A IPC, the benefit of Section 4 of the Probation of Offenders Act [ “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 https://www.mhc.tn.gov.in/judis 26 Crl.R.C.No.939 of 2016 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 under sub-section (1), the court shall take into consideration the report, if any, of the Probation Officer concerned in relation to the case.(3)-(5)] keeping in mind “the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families”. It was held that: (Dalbir Singh case [(2000) 5 SCC 82 : 2004 SCC (Cri) 1208] , SCC p. 87, para 13):-
“13. … [C]riminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the PO Act. https://www.mhc.tn.gov.in/judis 27 Crl.R.C.No.939 of 2016 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.” That decision, in which a cyclist was killed, resulted in a sentence of three months and one year respectively for the violation of the two sections mentioned above. That decision, in a sense, was a precursor to a stricter application by this Court of the provisions for releasing a convict on probation and went contrary to the grain of earlier decisions of this Court.
17. In Karamjit Singh v. State of Punjab [(2009) 7 SCC 178 : (2009) 3 SCC (Cri) 330] the convict, a first-time offender, was denied the benefit of release on probation in view of the gravity of the offence and a large number of injuries on the victim. The conviction in that case was for an offence punishable under Section 307 IPC and Section 27 of the Arms Act. That decision contains an inadvertent https://www.mhc.tn.gov.in/judis 28 Crl.R.C.No.939 of 2016 error, to the following effect: (SCC p. 185, para 26) “26. In Manjappa v. State of Karnataka [(2007) 6 SCC 231 : (2007) 3 SCC (Cri) 76] this Court considered the scope of grant of relief under the provisions of Section 361 CrPC or under the provisions of the Probation of Offenders Act, 1958 reconsidering earlier judgment of this Court in Om Prakash v. State of Haryana [(2001) 10 SCC 477 :
2003 SCC (Cri) 799] , and held that such a relief should be granted where the offence had not been of a very grave nature and in certain cases where mens rea remains absent as in a case of rash and negligent driving under Section 279 read with Section 304-A IPC.”
18. As has been noticed above, Om Prakash [(2001) 10 SCC 477 : 2003 SCC (Cri) 799] related to an offence punishable under Section 323 and Section 325 read with Section 148 and Section 149 IPC. Manjappa [(2007) 6 SCC 231 : (2007) 3 SCC (Cri) 76] relates to the offences https://www.mhc.tn.gov.in/judis 29 Crl.R.C.No.939 of 2016 punishable under Sections 323, 325 and 504 IPC. There is no reference to any offence punishable under Section 279 or Section 304-A IPC. However, it appears that this Court desired to convey that an offence punishable under Section 279 and Section 304-A IPC is the result of an accident and is, therefore, not “grave” since there is an absence of mens rea.
19. Notwithstanding this, in State of Punjab v. Balwinder Singh [(2012) 2 SCC 182 : (2012) 1 SCC (Cri) 706] it was again held that the punishment for causing death by rash or negligent driving should be deterrent, in view of the frequency of such incidents. The accident in that case resulted in the death of five persons, and the punishment was six months' rigorous imprisonment with a fine of Rs 5000.
20. In Alister Anthony Pareira v. State of Maharashtra [(2012) 2 SCC 648 : (2012) 1 SCC (Civ) 848 : (2012) 1 SCC (Cri) 953] the convict's driving resulted in the death of seven persons and injuries to eight others. This Court https://www.mhc.tn.gov.in/judis 30 Crl.R.C.No.939 of 2016 upheld his conviction by the High Court for the offences punishable under Part II of Section 304; Sections 338 and 337 IPC and sentenced him to rigorous imprisonment for three years and a fine of Rs 5 lakhs. This Court also observed that the case was not a fit one for releasing the convict on probation. It was also observed that our country has the dubious distinction of registering the maximum number of deaths in road accidents and that “It is high time that lawmakers revisit the sentencing policy reflected in Section 304-A IPC”.
21. In State v. Sanjeev Nanda [(2012) 8 SCC 450 : (2012) 4 SCC (Civ) 487 : (2013) 3 SCC (Cri) 899] six persons were killed and one injured as a result of the convict's driving. The trial court convicted him for an offence punishable under Section 304 Part II IPC and sentenced him to undergo rigorous imprisonment for five years. On appeal, the High Court found the convict guilty of commission of an offence punishable under Section 304-
A IPC and reduced the sentence to two years. By the time https://www.mhc.tn.gov.in/judis 31 Crl.R.C.No.939 of 2016 the appeal filed by the State was taken up for disposal, the convict completed his term of imprisonment. That being so, while restoring the conviction under Section 304 Part II IPC, this Court did not deem it appropriate to enhance the sentence awarded. Several reasons were given for this, including the fact that the convict had given compensation to the families of the deceased to the extent of Rs 10 lakhs each and to the family of the injured to the extent of Rs 5 lakhs. The convict was further directed to deposit an amount of Rs 50 lakhs with the Central Government for paying compensation to the victims of other hit-and-run cases and to do community service for two years.
22. It does appear that depending upon the facts of each case, causing death by what appears (but is not) to be a rash or negligent act may amount to an offence punishable under Part II of Section 304 IPC, not warranting the release of the convict under probation. There may also be situations where an offence is https://www.mhc.tn.gov.in/judis 32 Crl.R.C.No.939 of 2016 punishable under Section 304-A IPC in an accident “where mens rea remains absent” and refusal to release a convict on probation in such a case may be too harsh an approach to take. An absolute principle of law cannot be laid down that in no case falling under Section 304-A IPC should a convict be released on probation. This is certainly not to say that in all cases falling under Section 304-A IPC, the convict must be released on probation—it is only that the principles laid down in Sections 360 and 361 of the Criminal Procedure Code and the Probation of Offenders Act should not be disregarded but should be followed and an appropriate decision, depending on the facts of the case, be taken in each case.
23. In Ajahar Ali v. State of W.B. [(2013) 10 SCC 31 :
(2013) 3 SCC (Cri) 794] the appellant was convicted of an offence of outraging the modesty of a woman punishable under Section 354 IPC. This was held to be “a heinous crime and with the social condition prevailing in the society, the modesty of a woman has to be strongly https://www.mhc.tn.gov.in/judis 33 Crl.R.C.No.939 of 2016 guarded” and so the benefit of the Probation of Offenders Act was not given to him. This may be contrasted with Prem Chand [(1997) 7 SCC 756 : 1997 SCC (Cri) 1176] and subsequently Dharam Pal [(2004) 9 SCC 681 : 2004 SCC (Cri) 1477] where the convict was guilty of a far more serious offence of attempted rape and yet granted the benefit of the Probation of Offenders Act, notwithstanding the nature of the crime, and only because of his age.
24. These decisions indicate that the philosophical basis of our criminal jurisprudence is undergoing a shift—from punishment being a humanising mission to punishment being deterrent and retributive. This shift may be necessary in today's social context (though no opinion is expressed), but given the legislative mandate of Sections 360 and 361 of the Criminal Procedure Code and the Probation of Offenders Act, what is imperative for the Judge is to strike a fine balance between releasing a convict after admonition [ Probation of Offenders Act, 1958,“3.Power of court to release certain offenders after https://www.mhc.tn.gov.in/judis 34 Crl.R.C.No.939 of 2016 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 Penal Code, 1860, or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Penal Code, 1860 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.”] or on probation or putting such a convict in https://www.mhc.tn.gov.in/judis 35 Crl.R.C.No.939 of 2016 jail. This can be decided only on a case by case basis but the principle of rehabilitation and the humanising mission must not be forgotten.
25. There are other legislative requirements that need to be kept in mind. The Probation of Offenders Act provides, in Section 5 thereof [ “5.Power of court to require released offenders to pay compensation and costs.—(1) The court directing the release of an offender under Section 3 or Section 4, may, if it thinks fit, make at the same time a further order directing him to pay—(a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and(b) such costs of the proceedings as the court thinks reasonable.(2) The amount ordered to be paid under sub-section (1) may be recovered as a fine in accordance with the provisions of Sections 386 and 387 of the Code.(3) A civil court trying any suit, arising out of the same matter for which the offender is prosecuted, shall take into account any amount paid or recovered as https://www.mhc.tn.gov.in/judis 36 Crl.R.C.No.939 of 2016 compensation under sub-section (1) in awarding damages.”] for payment of compensation to the victim of a crime (as does Section 357 of the Criminal Procedure Code). Yet, additional changes were brought about in the Criminal Procedure Code in 2006 providing for a victim compensation scheme and for additional rights to the victim of a crime, including the right to file an appeal against the grant of inadequate compensation. How often have the courts used these provisions?
26. In Ankush Shivaji Gaikwad v. State of Maharashtra [(2013) 6 SCC 770 : (2014) 1 SCC (Cri) 285] and Jitendra Singh v. State of U.P. [(2013) 11 SCC 193 : (2013) 4 SCC (Cri) 725] this Court held that consideration of grant of compensation to the victim of a crime is mandatory, in the following words taken from Ankush Shivaji Gaikwad [(2013) 6 SCC 770 : (2014) 1 SCC (Cri) 285] : (SCC p. 797, para 66) “66. … [W]hile the award or refusal of compensation in a particular case may be within the court's https://www.mhc.tn.gov.in/judis 37 Crl.R.C.No.939 of 2016 discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation.”
27. This being the position in law, there is a necessity of giving justice to the victims of a crime and by arriving at a fair balance, awarding a just sentence to the convicts by treating them in a manner that tends to assist in their rehabilitation. The amendments brought about in the Criminal Procedure Code in 2006 also include a chapter on plea bargaining, which again is intended to assist and enable the trial Judge to arrive at a mutually satisfactory disposition of a criminal case by actively engaging the victim of a crime. It is the duty of a trial Judge to utilise all these tools given by Parliament for ensuring a fair and just termination of a criminal case.
28. To sum up:
28.1. For awarding a just sentence, the trial Judge must https://www.mhc.tn.gov.in/judis 38 Crl.R.C.No.939 of 2016 consider the provisions of the Probation of Offenders Act and the provisions on probation in the Criminal Procedure Code;
28.2. When it is not possible to release a convict on probation, the trial Judge must record his or her reasons; 28.3. The grant of compensation to the victim of a crime is equally a part of just sentencing;
28.4. When it is not possible to grant compensation to the victim of a crime, the trial Judge must record his or her reasons; and 28.5. The trial Judge must always be alive to alternative methods of a mutually satisfactory disposition of a case."
16. In the present case, the conviction is under Sections 279 and 304A IPC, where the maximum sentence provided is two years. The petitioner has not suffered any previous conviction. Section 11(1) of the Probation of Offenders Act provides that an order under this Act may be given by any court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on https://www.mhc.tn.gov.in/judis 39 Crl.R.C.No.939 of 2016 appeal or in revision. Therefore, this court, invoking Section 11(1) of Probation of Offenders Act, can pass order at this stage.
17. Once again, coming to the factual aspects, this court could see that the accident had taken place not only due to the negligence on the part of the petitioner but also, there is some contributory negligence on the part of the victim in attempting to cross the National Highway by scaling the centre median in the absence of any pedestrian/zebra crossing and for the fateful occurrence, the petitioner had already suffered a lot and now, he had compensated the legal heirs of the deceased by paying some ex gratia and the legal heirs of the deceased also have expressed that considering the plight of the petitioner, they intend to pardon the act of the petitioner. The petitioner has not been brought to any adverse notice and he has not suffered any previous conviction.
18. The legal heirs of the deceased viz., his wife and daughter had already filed M.C.O.P. before the Tribunal and got a sum of Rs.4,00,000/-
having settled the matter before the Lok Adalat. It is also brought to the notice of this court by the learned Senior Counsel for the petitioner that towards payment of compensation as ex gratia to the legal heirs of the https://www.mhc.tn.gov.in/judis 40 Crl.R.C.No.939 of 2016 deceased, the petitioner had taken two demand drafts bearing Nos.197710 and 197709 dated 18.12.2021 each for a sum of Rs.2,50,000/- in favour of the wife and daughter of the deceased Arukutti and sent them to the legal heirs of the deceased. The receipt of the compensation amount is also confirmed by the learned amicus curiae.
19. Considering the above facts and circumstances, this court deems it proper that it is a fit case for invoking Section 11(1) of the Probation of Offenders Act, 1958 and release the petitioner on due admonition instead of directing him to undergo the sentence. Therefore, while confirming the conviction, the sentence alone is modified directing for release of the petitioner on due admonition invoking the provisions of Section 11(1) of the Probation of Offenders Act, 1958. Accordingly, the Criminal Revision Case stands party allowed. It is made clear that conviction of the petitioner may not cast any stigma on the petitioner/accused and the petitioner shall not suffer any disqualification. The petitioner need not surrender. Bail bonds executed, if any, shall stand cancelled. https://www.mhc.tn.gov.in/judis 41 Crl.R.C.No.939 of 2016
20. Before parting with, this court intends to place on record its appreciation for the efforts taken by Mr.Guruprasad, learned counsel, who assisted the court in this case as amicus curiae.
1.2.2022 tsh/ssk.
Index: Yes/No. Internet: Yes/No. To
1. The I Additional District and Sessions Judge, Coimbatore.
2. The Judicial Magistrate No.VIII, Coimbatore.
3. The Public Prosecutor, High Court, Madras.
4. The Inspector of Police, TIW (East) Police Station, Coimbatore. https://www.mhc.tn.gov.in/judis 42 Crl.R.C.No.939 of 2016
A.D.JAGADISH CHANDIRA, J., tsh/ssk Crl.R.C.No.939 of 2019 1.2.2022.
https://www.mhc.tn.gov.in/judis 43