Kerala High Court
Usmankutty Maulavi vs Subaida Beevi on 23 September, 2025
Author: Kauser Edappagath
Bench: Kauser Edappagath
Crl.R.P.No.4592/2007
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2025:KER:71103
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 23RD DAY OF SEPTEMBER 2025 / 1ST ASWINA, 1947
CRL.REV.PET NO. 4592 OF 2007
AGAINST THE JUDGMENT DATED 14.11.2007 IN Crl.A NO.102
OF 2006 OF ADDITIONAL DISTRICT AND SESSIONS COURT FAST
TRACK (ADHOC), MAVELIKKARA ARISING OUT OF THE
ORDER/JUDGMENT DATED 20.02.2006 IN CC NO.7 OF 1999 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -II, HARIPAD
REVISION PETITIONER/APPELLANT/ACCUSED:
USMANKUTTY MAULAVI, AGED 50 YEARS,
USMANIA MANZIL, THAMALLACKAL SOUTH, KUMARAPURAM
VILLAGE, KARTHIKAPALLY TALUK.
BY ADV SRI.SAJITH KUMAR V.
RESPONDENT/RESPONDENT/COMPLAINANT:
1 SUBAIDA BEEVI, AGED 60 YEARS,
NISSA MANZIL, POTHAPPALLY NORTH, KUMARAPURAM,
VILLAGE, KARTHIKAPPALLY TALUK.
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.
SRI.E.C.BINEESH-SR.PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 23.09.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Crl.R.P.No.4592/2007
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2025:KER:71103
ORDER
This revision petition has been directed against the judgment in Crl.A No.102/2006 dated 14.11.2007 on the files of the Additional District & Sessions Court, Fast Track (Adhoc), Mavelikara (for short 'the appellate court') as well as the judgment in C.C.No.7/1999 on the files of the Judicial First Class Magistrate Court-II, Haripad (for short 'the trial court') dated 20.2.2006.
2. The petitioner is the accused. He faced trial for the offences punishable under Sections 279 and 304A of IPC and Section 134(a) of the Motor Vehicles Act (for short the MV Act).
3. The case arose out of a private complaint filed by PW1. Her son Abdul Shukoor @ Biju died in a motor vehicle accident on 24.8.1997 at about 7.15 pm. The allegation in the compliant is that while PW1 and Abdul Shukoor were walking through the eastern side of the NH-47 road near Thamalackal Junction, an Ambassador car bearing No.KL-2B/6318, driven by the accused in a rash and negligent manner came from behind and hit against Abdul Shukoor, who sustained fatal injuries and succumbed to the injuries while he was undergoing treatment at Crl.R.P.No.4592/2007 3 2025:KER:71103 Medical College Hospital, Kottayam.
4. On the side of the prosecution, PW1 to PW10 were examined and Exts. P1 to P4 were marked. On the side of the defence, DW1 was examined and Exts.D1 to D5 were marked. After trial, the trial court found the accused guilty under Sections 279 and 304A of IPC and Section 134(a) of the MV Act and convicted him for the said offences. He was sentenced to undergo simple imprisonment for a period of one year and to pay a sum of ₹1,00,000/-(Rupees one lakh) as compensation, in default to suffer simple imprisonment for a period of three months for the offence punishable under Section 304A of the IPC. No separate sentence was awarded for the offence punishable under Section 279 of the IPC. The accused was also sentenced to pay a fine of ₹500/-, in default to undergo simple imprisonment for one month for the offence punishable under Section 134(a) of the MV Act. The petitioner challenged the conviction and sentence before the appellate court. The appellate court confirmed the conviction and modified the sentence. The petitioner was sentenced to undergo simple imprisonment for three months for the offence punishable under Section 304A of the IPC. He was further sentenced to pay a fine of ₹500/-, in default to suffer simple imprisonment for one Crl.R.P.No.4592/2007 4 2025:KER:71103 month for the offence punishable under Section 134(a) of the MV Act. The order granting compensation was set aside. This revision petition has been filed challenging the conviction and sentence passed by the trial court as well as the appellate court.
5. I have heard Sri. V. Sajith Kumar, the learned counsel for the petitioner and Sri. E.C. Bineesh, the learned Senior Public Prosecutor.
6. The learned counsel for the petitioner submitted that both the trial court as well as the appellate court went wrong in convicting the petitioner. The learned counsel further submitted that identification of the petitioner as well as the identification of the vehicle involved in the incident has not been properly proved. The learned counsel also submitted that this is a fit case where the benefit of the provisions of the Probation of Offenders Act could be extended to the petitioner. On the other hand, the learned Prosecutor submitted that both the courts, on appreciation of the evidence, found that the petitioner drove the car rashly and negligently and hit against the deceased. The learned Prosecutor submitted that this Court while exercising its revisionary jurisdiction is not supposed to re-appreciate the evidence.
7. PW1 is the mother of the deceased. PW5 to Crl.R.P.No.4592/2007 5 2025:KER:71103 PW7 are the occurrence witnesses. The prosecution relied on the evidence of PW1 and PW5 to PW7 to prove the incident and to fix the culpability on the accused. PW1 deposed that while she along with the deceased was walking through the eastern side of the NH-47 road near Thamalackal Junction, an Ambassador car bearing No.KL-2B/6318, driven by the accused/petitioner came from behind and hit the deceased. She deposed that the petitioner drove the vehicle in a rash and negligent manner. She has identified the petitioner as the driver of the vehicle. PW5 to PW7 supported the evidence given by PW1. They have also clearly identified the petitioner. Even though PW1 and PW5 to PW7 were cross examined in length, nothing tangible could be extracted from their cross examination to discredit their testimony. The defence has taken a contention that the vehicle involved in the incident was a different one and the petitioner was not the driver of the said vehicle at all. However, the evidence of PW1 and PW5 to PW7 clearly prove that it was the petitioner who drove the vehicle involved in the incident and the accident was caused due to the rash and negligent driving of the vehicle by him.
8. It is well settled that the revisional jurisdiction under Sections 397 and 401 Cr.P.C was to confer power upon Crl.R.P.No.4592/2007 6 2025:KER:71103 superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment. It has been consistently held by the Apex Court that the jurisdiction of the High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. While exercising the revisional powers under Sections 397 r/w 401 of the Code of Criminal Procedure, the court is required to find out if there is any illegality or impropriety in the findings of the trial court and the appellate court warranting interference and it is not open to the High Court to exercise the revisional power as the second appellate forum. In Shlok Bhardwaj v. Runika Bhardwaj and others [(2015) 2 SCC 721), the Supreme Court held that the scope of revisional jurisdiction of the High Court does not extend to re-appreciation of evidence. Since there are concurrent findings of the trial court as well as the appellate court, this Court would be circumspect in invoking the revisional powers under Sections 397 r/w 401 of the Code of Criminal Procedure. It is only if the decision rendered by the appellate court and the trial court can be said to be either perverse, arbitrary or capricious, this Court can invoke such powers. I have carefully Crl.R.P.No.4592/2007 7 2025:KER:71103 gone through the entire records, evidence, proceedings and the judgments of the trial court as well as the appellate court. I find no impropriety or illegality therein warranting interference under the exercise of revisional powers vested with the court.
9. The learned counsel for the petitioner submitted that the petitioner is aged and having several ailments. The counsel further submitted that the petitioner has been undergoing the ordeal of trial for the last 28 years and hence the benefit of the Probation of Offenders Act, 1958 (for short PO Act) may be extended to him. In view of the said submission, a report has been called for from the District Probation Officer, Alappuzha. A detailed report has been filed.
10. The PO 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 effect of jail life. The PO 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 S.3 and S.4 of the said Act. S.3 of the PO Act confers power on the Court to release certain offenders after admonition. S.4 of the PO Act deals with the power of Court Crl.R.P.No.4592/2007 8 2025:KER:71103 to release certain offenders on probation on good conduct. S.5 of the Act empowers the Court to direct payment of compensation and costs in the event of invoking S.3 or S.4 of the Act. S.6 of the PO Act stipulates restrictions on imprisonment of offenders under twenty one years of age. As per S.11 of the PO Act, powers as provided under S.3, S.4 and S.5 of the Act can be exercised by the Appellate or Revisional Court as well.
11. S.3 of the PO Act for release after due admonition is evidently not applicable in the nature of the offences. The accused being above 21 years of age, S.6 also is not applicable. S.4 of the Act would demonstrate that if a person is found guilty of having committed an offence not punishable with death or imprisonment for life, in that event, considering the nature of the offence and the character of the offender, the Court instead of sentencing him at once to any punishment may release such person on probation of good conduct, on his entering into a bond, with or without sureties, for a period not exceeding three years. Before releasing the offender, on probation, the Court must satisfy itself that 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 Crl.R.P.No.4592/2007 9 2025:KER:71103 into the bond. The Court before passing the order of release on probation may also call report of the Probation Officer. The Court while releasing on probation may also direct that accused shall remain under the supervision of Probation Officer for a period not less than one year.
12. In Dalbir Singh v. State of Haryana (AIR 2000 SC 1677) the Apex Court has held that a convict can be released on probation only if the Court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. It was further held that though the discretion has been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient. Explaining the word "expedient", the Court held thus "Here the word 'expedient' is used in S.4 of the PO Act in the context of casting a duty on the court to take into account 'the circumstances of the case including the nature of the offence'. This means S.4 can be resorted to when the court considers the circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object Crl.R.P.No.4592/2007 10 2025:KER:71103 that the offender can be released on probation of good conduct". In Satyabhan Kishore v. State of Bihar (AIR 1972 SC 1554), the District Probation Officer in his report made no recommendation in favour of the accused and made no adverse remark also. Still the Court expressed the view that in the light of the laudable reformatory object which the legislature was seeking to achieve, the provisions will have to be applied. In Arvind Mohan Sinha v. Amulya Kumar Biswas and Others (1974 SCC (Cri) 391), the offences involved were those under the Customs Act and Gold (Control) Rules having impact on the economy of the country. Still in the circumstances of that case, the court found that the PO Act is applicable. In Rattan Lal v. State of Punjab (AIR 1965 SC 444), the provisions of the PO Act was applied even in a case where the Act was not in force at the time of the commission of offence and in spite of the fact that the trial court and the appellate court did not apply the provisions. In Chhanni v. State of U.P. [(2006) 5 SCC 396], it was held that the scope of S.4 of the PO Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. In Ishar Das v. State of Punjab [1973 (2) SCC 65], it was held that the provisions of the said Act are beneficial provisions and, Crl.R.P.No.4592/2007 11 2025:KER:71103 therefore, they should receive wide interpretation and should not be read in a restricted sense. In Mohd. Hashim v. State of UP and Others (2016 KHC 6883), it was held that the Court before exercising the power under S.4 of the PO Act has to keep in view the nature of offence and the conditions incorporated under S.4 of the PO Act. A Single Bench of this Court in Saji Charivukala Puthenveedu v. State of Kerala [2023 (7) KHC 381] has held that though release of offenders by invoking powers under S.4 of PO Act is rarely resorted by courts when the offence involved is one under S.279 and S.304A of the IPC, in an appropriate case, where litigation has been pending for decades and conduct of the accused is not tainted by the involvement in any similar offence either prior to the accident, or during the long period of court proceedings, there is no bar for invoking S.4 of PO Act.
13. Thus, the law is settled that beneficial provisions of the PO Act have to be extended liberally in all suitable cases taking into consideration the nature of the offence, age, character and antecedents of the convict and the circumstances under which the crime was committed.
14. The report filed by the District Probation Officer would disclose that the petitioner is a family man who takes care of his dependents consisting of his wife, son, daughter in law and Crl.R.P.No.4592/2007 12 2025:KER:71103 grand children. He is at present aged 68 years and suffering from many diseases. He has no criminal antecedents. He is a law abiding person. The Probation Officer recommended to give him the benefit of the provisions of S.4(1) and (3) of the PO Act. Considering the fact that the petitioner is a first time offender, that he has a family dependent on him, that he is not involved in any similar offence and that he has been undergoing the ordeal of trial for the last 28 years, I am of the view that this is a fit case where S. 4(1) of the PO Act could be extended to the petitioner.
15. S.5 of the PO Act empowers the Court to direct payment of compensation and costs to the victim in the event of invoking S.3 or S.4 of the PO Act. S.11(1) of the PO Act empowers the appellate court to pass an order regarding the payment of compensation as mentioned in S.5(1). S.5 is an important provision. While extending the benefit of S.3 or S.4, the court has to exercise the power u/s 5 liberally to compensate the victim for the loss or injury sustained by him/her as well as the cost of the proceedings incurred by him/her and, thus, to meet the ends of justice in a better way. The compensation must, however be reasonable. As already stated, the victim had sustained fatal injuries and succumbed to the injuries while Crl.R.P.No.4592/2007 13 2025:KER:71103 undergoing treatment at the hospital. Hence, I am of the view that it is a fit case to award compensation to his legal heir. Considering the facts and circumstances of the case, I am of the view that Rs.1,00,000/- (Rupees one lakh only) can be fixed as compensation.
16. In the light of the above findings, the following order is passed: (i) The petitioner/accused shall be released u/s 4(3) of the PO Act, and instead of sentencing him at present, he shall be released on his entering into a bond for ₹1,00,000/- (Rupees One lakh only) at the trial court with two solvent sureties to the satisfaction of that Court, to appear and receive the sentence of the said offences, when called upon during the period of three years from the date of release and in the meantime, to keep the peace and be of good behaviour. (ii) In addition to the condition for appearance at the Court for receiving sentence, the bond shall contain conditions for observing peace and good behaviour, appearance of the accused before the District Probation Officer, Alappuzha on the first week of every month and intimation of change of address to the said officer. (iii) The accused shall appear before the learned Magistrate within 60 days from today. (iv) The District Probation Officer, Alappuzha shall have supervision over the accused for a Crl.R.P.No.4592/2007 14 2025:KER:71103 period of three years and the Officer shall make a report once in every three months to the trial court about the conduct of the offender. (v) The petitioner/accused is further directed u/s 5 of the PO Act to pay a compensation of ₹1,00,000/- (Rupees one lakh only) to PW1, the legal heir of the deceased victim, within two months from today. (vi) The Registry is directed to forward a copy of this order to the District Probation Officer, Alappuzha.
The revision petition is disposed of as above.
sd/-
DR. KAUSER EDAPPAGATH JUDGE kp