Gauhati High Court
Munindra Gazamer vs State Of Assam on 26 May, 2005
Equivalent citations: (2005)3GLR618
JUDGMENT B.P. Katakey, J.
1. This revision petition is directed against the Judgment and Order dated 5.1.2000 passed by the learned Sessions Judge, Sibsagar in Crl. Appeal No. 8(3) of 1997 affirming the judgment of conviction and sentence dated 7.7.1997 passed by the learned Chief Judicial Magistrate, Sibsagar in GR Case No. 245/95 convicting the petitioner under Section 279/304A of the IPC and sentencing him to suffer simple imprisonment for one month under Section 279 of the IPC and simple imprisonment for 6 months under Section 304A of the IPC.
2. The prosecution case, in brief, is that on 12.3.1995 when the informant's elder brother Rupeswar Baruati was coming from Sibsagar side on a bicycle on National High Way No. 37, one Maruti car bearing Registration No. AMB 8348 driven by the present revision petitioner hit him near Baruati Gaon, as a result of which Rupeswar fell down on the road and sustained grievous injuries on his head as well as different parts of the body. Though the injured was admitted to the Sibsagar Civil Hospital and was also treated in Assam Medical College Hospital in Dibrugarh, he succumbed to his injuries in Assam Medical College, Dibrugarh. The first informant Smti. Chenimai Baruoti on 13.3.1995 lodged the first information report to that effect in Gaurisagar Police Station and the Police upon completion of the investigation submitted a charge sheet against the present revision petitioner under Section 279/304A of the IPC. The learned trial court thereafter explained the charge, to which the petitioner pleaded not guilty and demanded trial. The learned trial Magistrate on the basis of the evidence on record, both oral and documentary, vide judgment dated 7.7.1997 convicted the petitioner under Section 279/304A of the IPC and sentenced him as aforementioned. Being aggrieved the revision petitioner filed Crl Appeal No. 8(3)797 before the learned Sessions Judge and the same was also dismissed vide judgment and order dated 5.1.2000 affirming the Judgment of conviction and sentence imposed by the learned trial Magistrate. Hence the present Revision petition before this Court.
3. I have heard Mr. G.N. Sahewalla, learned senior counsel for the petitioner and Mr. B. Singh, learned P.P. Assam.
4. Mr. Sahewalla, learned Counsel for the petitioner, has submitted that the prosecution has failed to prove the charge against the present petitioner and, therefore, his conviction under Section 279/304A cannot be sustained. Further submission of Mr. Sahewalla is that there was only one eye witness, namely, P.W. 1 Chenimai Baruoti the first informant and her testimony also does not support the charge either under Section 279 or Section 304A of the IPC and as such the judgment of conviction and sentence is required to be interfered with in Revision.
5. Mr. B. Singh, learned P.P., Assam supporting the judgment of conviction and sentence passed by the learned courts below has submitted that both the courts below upon perusal of the evidence on record, more particularly the evidence of the eye witness convicted the petitioner under Section 279/304A of the Indian Penal Code. Therefore, this Court in exercise of the revisional power may not interfere with the said judgment of conviction.
6.1 have perused the judgment passed by the learned courts below as well as the records pertaining to G.R. case No. 245 of 95 and Crl. appeal No. 8(3) of 1997. The prosecution in order to bring home the charge against the present revision petitioner has examined the prosecution witnesses, which includes the first informant, that is sister of the deceased, the Doctor who performed the post mortem examination on the dead body of the deceased as well as the investigating officer. It is evident from the evidence on record, more particularly the P.W.1, witness to the occurrence, that the petitioner was driving the vehicle in a rash and negligent manner, endangering the human life and thereby causing death by negligence. The defence during cross-examination could not bring out anything so as to disbelieve the prosecution witness. Hence the charges against the petitioner under Section 279/304A IPC have been proved by the prosecution and hence the judgment of conviction was rightly passed by the learned courts below.
7. Mr, Sahewalla, learned senior counsel for the petitioner at this stage has submitted that the petitioner should be given the benefit of the provisions of Probation of Offenders Act, 1958, keeping in view of his age at the relevant point of time and also the fact that ten long years have elapsed from the date of occurrence and in view of the entire fact and circumstances of the instant case. According to the learned senior counsel the appellate court has not discussed anything about the said provisions of law and though the learned trial court took into consideration the provisions of the said Act, the benefit under the said Act was not extended to the petitioner without recording any reasonable justification to that effect. Mr. Singh, learned P.P., Assam has submitted that, in a given case, the court is bound to consider the provisions of Probation of Offenders Act, 1958 which is made applicable in the State of Assam by issuing different notifications and vide notification dated 1.6.1963 it was made applicable in Sibsagar District and hence the court is required to consider the provisions of the said Act. The further submission of the learned P.P. is that under the provisions of 1958 Act the Revisional Court can also exercise the power by virtue of the provisions contained in Section 11 of the said Act.
8. The Probation of Offenders Act, 1958 was enacted to make provisions for release of the offenders after due admonition and the matters connected therewith. The said Act is reformative measure. Its object is to reclaim amateur offenders who can usefully rehabilitated in the society and to prevent the conversion of youthful offenders in to obdurate criminals as a result of their association with hardened criminals of mature age, in case the youthful offenders are sentenced to undergo imprisonment in jail. Sub-Section (3) of Section 1 of 1958 Act provides that the provisions of the said Act shall come into force in a State on such date as the State Government may by notification in the official Gazette, appoint, and different dates may be appointed for different parts of the State.
9. The State of Assam issued 2 Notifications which were published in the Official Gazette being notifications dated 4.7.1962, 15.5.1963 making the provisions of the said Act applicable in the District of Barpeta, Kamrup, Nagaon with effect from 16.7.1962 and in respect of Cachar and Sibsagar District with effect from 1.6.1963. Apart from the said two notifications other notifications were also issued by the State of Assam in the years 1963 and 1965 making the provisions of the said Act applicable in the District of Lakbimpur and United Khasi and Jaintia Hill District (now in the State of Meghalaya) as well as Mizo Hill District (now in the State of Mizoram) with effect from 16.9.1963 and 10.6.1965 respectively.
10. Section 19 of the 1958 Act provides that subject to the provisions of Section 18 of the Act", Section 562 of the Criminal Procedure Code (old Cr.P.C.) shall cease to apply to the States or parts thereof in which this Act is brought into force. Corresponding provisions in Cr.P.C. 1973 is Section 360. For better appreciation, Section 19 of the 1958 Act is quoted below :
19. Section 562 of the Code not to apply in certain areas : -
Subject to the provisions of Section 18, Section 562 of the Code shall cease to apply to the States or parts thereof in which this Act is brought into force.
11. Section 8 of the General Clauses Act provides as under :
8. Construction of references to repealed enactment : --(1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.
2. Where before the fifteenth day of August 1947 any Act of the parliament of the United Kingdom repealed and re-enacted with or without modification any provision of a former enactment, then references in any Central Act or in any Regulation or instrument to the provisions so repealed, shall unless a different intention appears, be construed as references to the provisions so re-enacted.
12. By virtue of the provisions of Section 8 of the General Clauses Act, the reference to the provision of Section 562 of the old Criminal Procedure Code in Section 19 of the 1958 Act, shall have to be read as reference to the corresponding provision of the new Code, i.e., Section 360 of the Criminal Procedure Code of 1973. Hence the provision contain in Section 360 Cr. P.C., 1973 shall cease to apply to the State or parts thereof in which the provisions of 1958 Act is made applicable by virtue of Section 19 of the said Act as observed above, the provisions of 1958 Act was made applicable by the State of Assam by using different notifications and publishing the same in the Official Gazette for different party of the State on different dates including the District of Sibsagar with effect from 1.6.1963 and hence the provisions contained in Section 360 Cr.P.C. 1973 shall cease to apply in those Districts in the State of Assam by virtue of Section 19 of the 1958 Act with effect from the date when the provisions of 1958 Act is made applicable.
13. The Apex Court in State through S.P., New Delhi v. Ratan Lal Arora has held that the provisions of Section 360 of the Cr.P.C. 1973 shall cease to apply on and from the date the provisions of 1958 Act is made applicable in any State by issuing notifications as required, under Sub-section 3 of Section 1 of the - said Act, The relevant portion of the said decision is quoted below :
11. The object of the said provisions, obvious and patently made known is that where any Act or regulation is repealed and re-enacted, references in any other enactment to provisions of the repealed former enactment must be read and construed as references to the re-enacted new provisions, unless a different intention appears. In similar situation this Court had placed reliance upon Section 8 of the General Clauses Act to tide over the situation. In new Central Jute Mills Co. Ltd. v. CCE, this Court held it to be possible to read the provisions of the Customs Act, 1962 in the place of the Sea Customs Act, 1878 found mention in Section 12 of the Central Excises and Salt Act, 1944. In State of Bihar v. S.K. Roy this Court held that by virtue of Section 8 of the General Clauses Act, references to the definition of the word employer in clause (e) of Section 2 of the Indian Mines Act, 1923 made in the Coal Mines Provident Fund and Bonus Schemes Act, 1948 should be construed as references to the definition of owner in Clause (1) of Section 2 of the Mines Act 1952 which repealed and re-enacted the 1923 Act. Consequently, the references to Section 562 of the old Code in Section 19 of the Probation Act and to Section 5(2) of the old Act in Section 18 of the Probation Act respectively have to be inevitably read as references to their corresponding provision in the newly enacted Code and the Act. Consequently, for the conviction under Section 13(2) of the Act the principles enunciated under the Probation Act cannot be extended at all in view of the mandate contained in Section 18 of the said Act. So far as Section 360 of the Code is concerned on and from the date of extension and enforcement of the provisions of the Probation Act to Delhi powers under Section 562 of the Old Code and after its repeal and replacement powers under Section 360 of the Code cannot be invoked or applied at all, as has been done in the case on hand. The view taken to the contra is not legally sustainable and cannot have our approval.
14. In the instant case the occurrence took place in the District of Sibsagar and in the said district the provisions of 1958 was made applicable by the State of Assam by publishing notification in the Official Gazette, with effect from 1.6.1963 and from that date the provisions of Section 360 Cr.P.C. shall cease to apply.
15. In view the object for which 1958 Act was enacted and also the provisions contained in Section 361 of the Cr.P.C, a duty is cast on the court to record the special reason for not invoking the provisions of the 1958 Act or provisions of Section 360 of the Cr.P.C. whichever is applicable. In the instant case, the learned trial court has refused to extend the benefit of 1958 Act to the petitioner without recording any special reason as required under Section 361 of the Cr.P.C.
16. Section 11 of the 1958 Act provides that the appellate as well as the. revisional court can make an order under the provisions of 1958 Act in its appellate or revisional jurisdiction.
17. In the present case, the petitioner was 20 years old at the time of occurrence, i.e., on 12.3.1995. More than 10 years have in the mean time elapsed from the date of occurrence and the revision petitioner was all along on bail during investigation/trial as well as after conviction. Nothing was brought on record to show that he has ever misused the benefit of such order or about not maintaining good conduct. The Apex Court in A.B. Raju v. State of Orissa, reported in 1995 Supp. (2) SCC 385 on a similar situation has extended the benefit of Section 360 of the Cr.P.C. and released the appellant therein on entering into a bond with one surety to keep good conduct and be of good behaviour, keep peace for a period of one year from the date of execution of such bond.
18. Keeping in view the facts and circumstances of the instant case as narrated above, I am of the opinion that justice will be met if instead of now directing the revision petitioner to serve out the sentences imposed by the learned courts below and sending him to prison at this stage, the revision petitioner is released on executing a bond with one surety to keep good conduct, and be of good behaviour, keeping peace for a period of one year from the date of execution of the bond. Accordingly, I direct the petitioner to execute a bond to that effect. Such bond shall be executed by the revision petitioner within a month from today before the learned Chief Judicial Magistrate, Sibasagar and in case the condition of the bond is violated, petitioner shall be called upon to receive the sentence.
19. Revision petition is accordingly partly allowed. No. costs.