Punjab-Haryana High Court
Major Jai Rajan vs State Of Punjab on 31 January, 2013
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
CRR No.3241 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Revision No.3241 of 2012 (O&M)
Date of Decision: January 31, 2013.
Major Jai Rajan
..........PETITIONER(s).
VERSUS
State of Punjab
..........RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE RAM CHAND GUPTA
Present: Mr. A.P.S. Deol, Senior Advocate with
Mr. Vishal Lamba, Advocate
for the petitioner.
Mr. P.S. Paul, D.A.G. Punjab,
counsel for respondent-State.
*******
RAM CHAND GUPTA, J.(Oral)
The present revision petition has been filed against the judgment dated 10.10.2012 passed by learned Additional Sessions Judge, SAS Nagar Mohali vide which appeal filed by petitioner-accused against judgment and order dated 15.03.2011 passed by Judicial Magistrate 1st Class, Dera Bassi in FIR No.130 dated 22.04.2001 under Sections 279, 337, 338, 304-A, 427 of Indian Penal Code (for short 'IPC') Police Station Lalru vide which petitioner-accused was convicted and sentenced to CRR No.3241 of 2012 -2- undergo rigorous imprisonment for three months for the offence under Section 279 IPC and to pay a fine of `500 and in default of payment of fine to further undergo imprisonment for one month; to undergo rigorous imprisonment for one year and to pay a fine of `1000 and in default of payment of fine to further undergo imprisonment for two months, was dismissed.
Briefly stated, the prosecution story is that on 22.04.2001, Raj Karan Singh complainant accompanied by his cousin Bikram Singh and other persons namely Lakhbir Singh, Bhim Singh and Harpreet Singh were returning after attending 'Bhog Ceremony' at Yamuna Nagar. Bhim Singh was driving the motorcycle and Harpreet and Lakhbir were pillion riders, whereas Raj Karan and Bikram Singh were riding on a scooter. Motorcycle being driven by Bhim Singh was ahead of scooter of Raj Karan. At about 2.30 PM, they reached in the vicinity of village Alamgir near Rana Polycon factory at some distance from village Lalru on their way to Chandigarh, when a car bearing registration No.HR01J- 2126 being driven by petitioner-convict arrived from front side which was being driven at a high speed. The driver of the car was in the process of crossing another car going ahead of him and in that process, he lost control and the car swerved towards wrong side and hit against the motorcycle being driven by Bhim Singh due to which all the three occupants of the motorcycle sustained injuries. Later on Bhim Singh and Harpreet Singh succumbed to the injuries in the hospital. CRR No.3241 of 2012 -3-
After completion of investigation, report under Section 173 of the Code of Criminal Procedure (for short 'Cr.P.C.) was filed against the petitioner-convict. He faced trial and was convicted and sentenced by learned trial Court as afore-mentioned. His appeal against the said judgment of conviction and order of sentence was dismissed by learned Additional Sessions Judge, SAS Nagar Mohali.
I have heard learned counsel for the petitioner, learned counsel for the respondent-State and have gone through both the judgments rendered by both the Courts below.
So far as the judgment of conviction as passed by learned trial Court and as affirmed by learned first Appellate Court is concerned, the same are based on evidence. There is no illegality or material irregularity in the judgment of conviction passed by learned trial Court and as affirmed by learned first Appellate Court, warranting interference by this Court. Hence, notice of motion was issued qua quantum of sentence only.
It has been vehemently argued by learned counsel for the petitioner-convict that petitioner was in active military service at the time of alleged occurrence. He was posted as Major at that time. Further contended that he was promoted as Lieutenant Colonel in the year 2004 and that he is having 34 years of unblemished service in the Army and he is due for promotion to the rank of Colonel. It is further submitted that he has already undergone about three months of the sentence. It is also CRR No.3241 of 2012 -4- contended that legal heirs of deceased have already got sufficient compensation in petitions filed under Motor Vehicles Act. It is also contended that both the deceased were unmarried boys and that father of deceased Bhim Singh namely Raghunandan Singh has given affidavit, Annexure A5, to the effect that matter has since been settled between the parties and he is having no grudge against the present petitioner and having no objection if the lenient view is taken in the matter of sentence. Similar affidavit is given by Bhupinder Singh, father of deceased Harpreet Singh, Annexure A-6, and injured Lakhbir Singh alias Lakhvinder Singh, Annexure P-7. It is further submitted that certificate, Annexure A-1, has been issued from the office of Directorate General of Army Air Defence, General Staff Branch, IHQ of MoD (Army) Sena Bhawan, New Delhi, to the effect that petitioner at all times observed high standard of professionalism and efficiency and is also fully qualified to be considered for his next promotion. He has also placed on record letter of appreciation, Annexure A-2, issued to him during his military service. It is also contended that even during his stay in the Central Jail, Patiala, his conduct was highly appreciated and he had actively participated in eye-camp organized in Central Jail Hospital, Patiala from 3rd December to 4th December 2012 and Annexure A-4 is the certificate issued by Department of Ophthalmology, Govt. Medical College, Rajindra Hospital, Patiala, who arranged the said eye-camp. He has also contended that moreover, in this case, even as per case of prosecution CRR No.3241 of 2012 -5- three persons were riding on a motorcycle against the rules framed under the Motor Vehicles Act and hence, it can be said that driver of the motorcycle also contributed for causing this accident and it can be said that it is a case of contributory negligence and the said fact can also be considered while considering the case of petitioner-accused for awarding sentence. It is further contended that there is no absolute bar for giving benefit of probation to a convict, convicted for offence under Section 304-A IPC as the offence is punishable with maximum imprisonment for two years and that the case of present petitioner-convict falls within exceptional category and taking into consideration all the afore- mentioned facts and circumstances of the case and particularly his brilliant career in the Army, he deserves to be given benefit under the Probation of Offenders Act, 1958.
He has also placed reliance upon Aitha Chander Rao v. State of Andhra Pradesh 1981 (Supp) Supreme Court Cases 17; A.P.Raju v. State of Orissa 1996(1) AICLR 452 and the latest judgment by Hon'ble Apex Court in Paul George v. State of NCT of Delhi2008(2) RCR (Criminal) 478. He has also placed reliance upon some judgments rendered by different Co-ordinate Benches of this Court in which accused was ordered to be released on probation for the offence under Section 304-A IPC on the peculiar facts and circumstances of those cases i.e. Ram Pal v. State of Punjab 2006(1) RCR (Criminal) 784; Sudh Ram v. State of Punjab 2006(3) RCR (Criminal) 550; Girdhari Lal v. State of CRR No.3241 of 2012 -6- Punjab 2007(1) RCR (Criminal) 988.
However, law on the point as to whether the benefit of probation under the Probation of Offenders Act should be granted to the accused convicted for offence under Section 304-A of IPC, has been settled by Hon'ble Apex Court in Dalbir Singh v. State of Haryana, 2000 (2) RCR(Crl.) 816 by observing that the courts should not as a normal rule, invoke the provisions of the Probation of Offenders Act when the accused is convicted of the offence under Section 304-A of IPC in causing death of human beings by rash or negligent driving. Relevant paragraphs No.12 and 13 of the judgment read as under:-
"12. In State of Karnataka v. Krishna alias Raju (1987) 1 SCC 538 : (AIR 1987 SC 861 : 1987 Cri LJ 776) this Court did not allow a sentence of fine, imposed on a driver who was convicted under S. 304-A, I.P.C. to remain in force although the High Court too had confirmed the said sentence when an accused was convicted of the offence of driving a bus callously and causing death of a human being. In that case this Court enhanced the sentence to rigorous imprisonment for six months besides imposing a fine.
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 S. 304-A, I.P.C. as attracting the benevolent provisions of S. 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 CRR No.3241 of 2012 -7- 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 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."
This judgment was subsequently followed by the Hon'ble Apex Court in B.Nagabhushanam v. State of Karnataka, 2008(3) RCR (Crl.) 50 and the benefit under the Probation of Offenders Act was denied to the accused for commission of offence punishable under Section 304-A IPC.
However, on the basis of peculiar facts and circumstances of the case, benefit of probation was also granted by the Hon'ble Apex Court in Paul George's case (supra) ; Aitha Chander Rao's case (supra) and; A.P.Raju's case (supra).
However, law remained the same as held by Hon'ble Apex Court in Dalbir Singh's case (supra) that the courts should not as a CRR No.3241 of 2012 -8- normal rule, invoke the provisions of the Probation of Offenders Act when the accused is convicted of the offence under Section 304-A of IPC in causing death of human beings by rash or negligent driving. However, the bar cannot be said to be absolute one and in some exceptional cases, benefit can be granted to a convict under the Probation of Offenders Act, 1958, though he is convicted under Section 304-A IPC.
In my view, the present case is of exceptionally different category in which benefit of probation on the facts and circumstances of the present case can be granted to him. He is a serving military officer having impeccable good service record. It is his first offence. At the time of this accident, he was posted as a Major and later on promoted as Lieutenant Colonel and is due for promotion as Colonel. Character Certificate issued by Lieutenant General Kuldeep Singh, AVSM, Annexure A-1, to the petitioner reads as under:-
"TO WHOMSOEVER IT MAY CONCERN CHARACTER CERTIFICATE
1. SL-3995A Lt Col V Jayarajan of the Army Air Defence has an impeccable record of exemplary service to date and has been at the forefront of ensuring technical and administrative service of the highest order to the Armed Forces in his capacity as a Technical Equipment officer.
2. The officer has been at all times heavily tasked due to his high standard of professionalism and efficiency. He is also fully qualified to be considered for his next promotion. His work ethics of diligence, analytical aptitude, dependability, reliability and task oriented perseverance in addition to a very sociable demeanour makes him an asset to the organization both professionally as well as personally.CRR No.3241 of 2012 -9-
(Kuldip Singh) Lt.Gen DG Army AD Station: New Delhi Date: 12 Dec. 2012"
Letter of Appreciation issued by Brigadier Ravi Kumar Gupta, Commander, Annexure A-2, to the petitioner reads as under:-
"TO WHOM SO EVER IT MAY CONCERN LETTER OF APPRECIATION SL-3995A LIEUTENANT COLONEL V JAYARAJAN, TECHNICAL EQUIPMENT OFFICER, QUARTER MASTER 151 AIR DEFENCE REGIMENT (SELF PROPELLED) CHHAMB)
1. Lt.Col. V Jayarajan has been rendering selfless service to the nation since last 34 years. He has been employed in various appointments in which he has been performing his duties with utmost dedication, sincerity and commitment to the organization. He has handled all his tasks in the most diligent manner so as to ensure the operational effectiveness of the Indian Army. He has actively participated in all operational exercises as part of a team and has contributed immensely to the success of the operation. He is a professionally competent, methodical, truthful, dedicated and honest officer who has used his skills and acumen to the service to the nation. He has dedicated his entire time for the betterment of the organisation sometimes at the cost of his personal commitments also.
2. Lieutenant Colonel V Jayarajan was presently performing the duties of Technical Equipment Officer (TEO) and Logistician of the unit. He is an exceptionally committed and dedicated officer, who is intelligent, conscientious and totally reliable. He has displayed immense professional acumen and unfaltering resolve in ensuring exemplary equipment management in the Regiment. The officer is very proactive and takes the initiative in approaching the concerned officials to expedite any kind of work assigned to him.
3. The aspects of the officer that merit attention are CRR No.3241 of 2012 -10- spelled out in succeeding paragraphs.
4. Foresight and Planning. Due to his foresight and planning the Regiment conducted its technical inspection with full satisfaction and ensured that 100% spares and accessories are available on vehicle/equipment. He has also ensured weekly maintenance of vehicles so as to ensure that the load during the technical inspection is reduced and regular maintenance of vehicles is done as a routine.
5. Maintenance of Vehicle/Equipment. The officer ensured that all the vehicles of the unit are maintained as a result of which 100% vehicles are on road. He has set-in drills and procedures which involves supervision at various levels to ensure optimum utilization of equipment. He ensures weekly equipment management conference with the Workshop to monitor progress of works.
6. Logistics. As a Quarter Master of the unit the officer ensured that quality of rations received by the unit for its men is of high standard and in time. He has been proactive in carrying out liaison with the Supply Depot so as to resolve all issues and ensure timely and good quality of ration for unit personnel.
7. Military Engineering Service (Authority Which Looks After Repairs/ Construction Maintained of Military Infrastructure). The officer ensured the unit's building /barracks repairs including electrical works is carried out in time. He has established liaison with Military Engineering Services in order to ensure timely maintenance. He adopted various procedures to ensure comfortable living of men and families in station. He has been able to, with his man management skills handle the Military Engineering Services so as to extract maximum possible work for the unit.
8. The officer has an excellent team spirit and espirit-de- corps so as to fit well into the team and immensely contribute in a positive manner for the betterment of the unit.
(R K Gupta)
Brig
Cdr
Dated 14 Dec.12 612 (i) Mech AD Bde"
CRR No.3241 of 2012 -11-
Petitioner has also undergone about three months of the sentence and his conduct in jail during this period was also appreciated.
There is another aspect of this case. Three persons were riding on a motorcycle when the accident had taken place. Hence, there is force in the argument of learned counsel for the petitioner that it can be said to be a case of contributory negligence at least for the purpose of considering the quantum of sentence to be imposed upon the petitioner-
convict. In the similar circumstances, benefit of probation was granted to the accused by Hon'ble Apex Court in Aitha Chander Rao's case (supra).
There is another aspect of this case. Legal heirs of deceased had already been adequately compensated and parents of both the deceased had given affidavits, Annexures A-5 and A-6, to the effect that they are having no grudge against the petitioner and they are having no objection if the lenient view in the matter of sentence is taken. Even injured Lakhbir Singh @ Lakhvinder Singh has given similar affidavit Annexure P-7.
Hence, taking into consideration all these facts and particularly the fact that petitioner has already put in 34 years of unblemished service in Army and is due for the promotion to the rank of Colonel, the present revision petition is partly accepted. While affirming the judgment of conviction as passed by learned trial Court and as affirmed by learned first Appellate Court, the order of sentence is set CRR No.3241 of 2012 -12- aside. Petitioner-convict is ordered to be released on probation of good conduct on his furnishing probation bond under Section 4 of the Probation of Offenders Act, 1958 for a period of one year to the satisfaction of learned trial Court at Dera Bassi, subject to any conditions deem to be imposed by it. During this period, he will keep peace and be of good behaviour and be called upon to receive sentence in case of violation of any conditions of bond.
Disposed of accordingly.
( RAM CHAND GUPTA )
January 31, 2013 JUDGE
Sachin M.