Whether Probation of Offenders Act applicable to causing Death by Negligence in Road Accidents ?

Probation of Offenders Act, 1958 - Penal Code, 1860 - Ss. 279, 337, 338 & 304A - Rash driving or riding on a public way - Causing hurt / grievous hurt by act endangering life or personal safety of others - Causing death by Negligence - Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Cr. Revision No. 85 of 2009.

Date of decision: 24th March, 2018.

Santosh Kumar ..…..Petitioner.

Versus

State of Himachal Pradesh. ……Respondents.

For the Petitioner : Mr. Lakshay Thakur, Advocate.

For the Respondent : Mr. Sudhir Bhatnagar, Addl. Advocate General, with Mr. Bhupinder Thakur, Deputy Advocate General.

Tarlok Singh Chauhan, Judge 

This criminal revision under Section 397 read with Section 401 Cr.P.C. is directed against the judgment dated 31.3.2009 passed by learned Sessions Judge, Mandi, District Mandi, H.P. in Cr. Appeal No. 14 of 2006 whereby he affirmed the judgment dated 4.10.2005 passed by learned Additional Chief Judicial Magistrate, Sundernagar, District Mandi, H.P. and the petitioner/accused (hereinafter referred to as the ‘accused’) has been convicted and sentenced to undergo simple imprisonment for 3 months each and to pay a fine of Rs.500/- each for offences punishable under Sections 279, 337, 338 and 304-A of IPC.

2. Briefly stated the facts necessary for the adjudication of this revision petition are that Harish Chander, ASI accompanied by Constable Lalman on 8.6.1997 received a telephonic information from Medical Officer, Sub Divisional Hospital, Sundernagar about the accident that had taken place at Ghangal Chowk, Sundernagar. On reaching the spot, he recorded the statement of Gupat Ram, complainant under Section 154 Cr.P.C. Ex.PW-5/A wherein he stated that he was resident of Baraga village Kullu and while taking his niece for treatment at IGMC, Shimla in a Van bearing registration No. HP-02- 2685, the bus came from the wrong side of the road and struck against the Van near BBMB Colony, Sundernagar, on the basis of which FIR came to be registered, pursuant to which investigation was carried out and on its conclusion, the accused/petitioner came to be challaned for offences punishable under Sections 279, 337, 338 and 304-A IPC.

3. The notice of accusation was put to the accused to which he pleaded not guilty and claimed trial.

4. The prosecution examined as many as 10 witnesses and thereafter the statement of accused under Section 313 Cr.P.C. was recorded wherein he denied the case of the prosecution.

5. The learned trial Court after evaluating the evidence, convicted the accused, as aforesaid.

6. Aggrieved by the judgment dated 4.10.2005 passed by learned Additional Chief Judicial Magistrate, Sundernagar, District Mandi, the accused filed an appeal before the learned Sessions Judge, Mandi which was dismissed and consequently the judgment rendered by the learned trial Court was upheld. It is against the judgment of conviction and sentence that the present revision petition has been filed by the petitioner/accused.

7. It is vehemently argued by Mr. Lakshay Thakur, learned counsel for the petitioner that the impugned judgments rendered by the learned Courts below are contrary to the facts and law and, therefore, the same deserve to be set-aside. On the other hand, Mr. Sudhir Bhatnagar, learned Additional Advocate General would support the judgment by contending that the same has been passed in accordance with law and calls for no interference. I have heard learned counsel for the parties and have gone through the records of the case carefully.

8. At the outset, it may be observed that the revisionary jurisdiction of this Court under Section 397 Cr.P.C. is extremely limited and this Court would only interfere in case the petitioner has been convicted and sentenced by not properly examining the material placed on record. This Court would definitely interfere in case it comes to the conclusion that there is a failure of justice and misuse of judicial mechanism or procedure or where the sentence awarded is not correct and the findings thus are perverse. After all, it is the salutary duty of this Court to prevent the abuse of justice or miscarriage of justice or/and correct irregularities, incorrectness committed by the inferior Criminal Court in its judicial process or illegality of sentence or order. This Court has very limited revisionary jurisdiction as held by this Court in Criminal Revision No. 50 of 2011, titled as Rajinder Singh vs. State of Himachal Pradesh, decided on 13.9.2017, wherein the scope of criminal revision has been delineated in the following manner:- 

“In Amur Chand Agrawal vs. Shanti Bose and another, AIR 1973 SC 799, the Hon’ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.

In State of Orissa vs. Nakula Sahu, AIR 1979, SC 663, the Hon’ble Supreme Court after placing reliance upon a large number of its earlier judgments including Akalu Aheer vs. Ramdeo Ram, AIR 1973, SC 2145, held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that “judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system”.

In Pathumma and another vs. Muhammad, AIR 1986, SC 1436, the Hon’ble Apex Court observed that High Court “committed an error in making a re-assessment of the evidence” as in its revisional jurisdiction it was “not justified in substituting its own view for that of the learned Magistrate on a question of fact”.

In Bansi Lal and others vs. Laxman Singh, AIR 1986 SC 1721, the legal position regarding scope of revisional jurisdiction was summed up by the Hon’ble Supreme Court in the following terms: 

“It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial court, that the High Court is empowered to set aside the order of the acquittal and direct a re-trial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution. The mere circumstance that a finding of fact recorded by the trial court may in the opinion of the High Court be wrong, will not justify the setting aside of the order of acquittal and directing a re-trial of the accused. Even in an appeal, the Appellate Court would not be justified in interfering with an acquittal merely because it was inclined to differ from the findings of fact reached by the trial Court on the appreciation of the evidence. The revisional power of the High Court is much more restricted in its scope.” 

In Ramu @ Ram Kumar vs. Jagannath, AIR 1991, SC 26, Hon’ble Supreme court cautioned the revisional Courts not to lightly exercise the revisional jurisdiction at the behest of a private complainant.

In State of Karnataka vs. Appu Balu, AIR 1993, SC 1126 = II (1992) CCR 458 (SC), the Hon’ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to re-appreciate the evidence.

In Ramu alias Ram Kumar and others vs. Jagannath AIR 1994 SC 26 the Hon’ble Supreme Court held as under: 

“It is well settled that the revisional jurisdiction conferred on the High Court should not be lightly exercised particularly when it was invoked by a private complaint.” 

In Kaptan Singh and others vs. State of M.P. and another, AIR 1997 SC 2485 = II (1997) CCR 109 (SC), the Hon’ble Supreme Court considered a large number of its earlier judgments, particularly Chinnaswami vs. State of Andhra Pradesh, AIR 1962 SC 1788 ; Mahendra Pratap vs. Sarju Singh, AIR 1968, SC 707; P.N. G. Raju vs. B.P. Appadu, AIR 1975, SC 1854 and Ayodhya vs. Ram Sumer Singh, AIR 1981 SC 1415 and held that revisional power can be exercised only when “there exists a manifest illegality in the order or there is a grave miscarriage of justice”.

In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452, the Hon’ble Supreme Court held as under: 

“In Its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.” 

In State of A.P. vs. Rajagopala Rao (2000) 10 SCC 338, the Hon’ble Supreme Court held as under: 

“The High Court in exercise of its revisional power has upset the concurrent findings of the Courts below without in any way considering the evidence on the record and without indicating as to in what manner the courts below had erred in coming to the conclusion which they had arrived at. The judgment of the High Court contains no reasons whatsoever which would indicate as to why the revision filed by the respondent was allowed. In a sense, it is a non-speaking judgment.” 

9. Having set out the legal parameters for exercise of revisional jurisdiction, it cannot be denied that in case findings recorded by the learned Courts below are perverse then obviously this Court would be entitled to interfere with the findings so recorded.

10. Adverting to the facts, it would be noticed that in order to prove its case the prosecution examined one Jeetu Ram as PW-1, who deposed that about 4 years back, he had accompanied a patient in a van being driven by Hira Lal from Kullu to Shimla. When they reached near Sundernagar, a bus being driven rashly and negligently came from the opposite side (Mandi side) and struck against Maruti van, as a result whereof, Hira Lal and Duni Chand sustained injuries. Eventually, Duni Chand succumbed to the injuries and died at Shimla. He was unable to identify the driver of the bus due to considerable lapse of time. In cross-examination, he stated that there was a bifurcation towards colony at the accident site and admitted that bifurcation to BBMB Colony was on the left side, however, clarified that the accident took place before bifurcation. He denied that the father of Anjana was pressing hard on the driver to drive the maruti van fast as Anjana was having 95% burn injuries and further that Anjana had been crying because of the frequent jumps of the vehicle.

11. Deepak Dhiman, resident of Village Changer Colony, Sundernagar appeared as PW-2 and deposed that at about 8.30 P.M. about 3-4 years back accident of van and the bus had taken place and he reached at the spot after hearing sound of the accident. The injured were 3-4 persons including one lady and a girl who were brought out from the van and taken to the hospital. The maruti van alongwith documents were taken into possession vide memo Ex.PW2-A and likewise, the documents of the bus were also taken into possession vide memo Ex.PW-2/B. The glass and other articles from the spot were taken into possession vide memo Ex. PW-2/C to Ex.PW-2/E. In cross- examination, this witness stated that he was not present at the site at the time of the accident.

12. Ramesh Chand, Technician Grade-3 with HRTC was examined as PW-3 and deposed that he had mechanically examined Maruti Van No. HP-02-2685 and had also mechanically examined bus No. HP-33-2167 and issued their mechanical reports Ex. PW-3/A and Ex.PW-3/B, respectively. In cross-examination, this witness stated that the brakes of the van were not in working order.

13. Gopal Singh was examined as PW-4 and proved the photographs Ex.P-1 to Ex.P-9 alongwith their negatives Ex.P-10 to Ex.P-18. In cross-examination, this witness stated that these photographs had been got developed from Chandigarh.

14. Gupat Ram, complainant appeared as PW-5 and deposed that about 6-7 years back, he accompanied by Duni Chand, Jyoti Ram and maternal grand daughter Anjana, who had burn injuries were proceeding to Shimla for treatment in a van. On reaching near Colony at Sundernagar, one bus came from the opposite side and struck against the van and this accident took place on account of the sheer negligence of the bus driver, who fled away from the spot. His statement Ex.PW-5/A under Section 154 Cr.P.C. was recorded. In cross-examination, this witness stated that he was sitting on the rear seat of the van and he did not know that the bus had turned towards Colony. He further stated that he was travelling for the first time to Shimla on this road.

15. Smt. Nirmala Devi, appeared as PW-6 and deposed that about 7 years back, they were taking Anjana for treatment to Shimla in a van. The bus was being driven at a high speed and the bus struck against the van resulting in injuries to its occupants. She specifically stated that the accident was occurred due to rash and negligent driving of the bus by its driver. In cross-examination, she stated that she saw the bus coming from Colony side. The driver of the bus fled away from the spot. She also admitted that there is bifurcation at the spot where the accident had taken place.

16. Dole Ram, who was posted as Incharge, Police Post, Lakkar Bazar, Shimla during the relevant time appeared as PW-7 and stated that on 10.6.1996 on intimation from the Medical Officer Casualty, IGMC, Shimla, that Duni Chand had died, he prepared the inquest report Ex.PW-7/A and handed over the dead body per receipt Ex.PW-7/B.

17. Bharat Kumar, owner of the offending bus appeared as PW-8 and stated that during the year 1997 the bus was taken to Colony at Sundernagar for night halt by its driver Santosh Kumar. The driver switched on the indicator of the bus. The van being driven rashly and negligently came from the opposite side and struck against the rear portion of the bus. In cross-examination, he stated that there was no vehicle on the road and further stated that the bus was turned at 90 degree angle by them. He stated that the accident had taken place on account of rash and negligent driving of the driver of the van.

18. Lalman, who was Incharge, Police Post Colony, Sundernagar during the year was examined as PW-9 and stated that he had recorded the statement s of Hira Lal, van driver and Dole Ram H.C.

19. Lastly, the prosecution examined one Jehmal Singh, who appeared as PW-10 and deposed that the van in question was handed over to him by the police on sapurdari vide memo Ex.PW-10/A.

20. A close scrutiny of the testimonies of the prosecution witnesses, more particularly, PW-1 Jeetu Ram, PW-5 Gupat Ram, complainant and PW-6 Nirmala Devi, who were the occupants of the van clearly reveal that it was on account of the rash and negligent driving of the petitioner that the accident in question occurred. PW-1 gave a detailed narration of the fact as to how the accident had occurred. However, suggestion was put to him that the bus was turned towards the Colony at Chowk when the accident had taken place but this witness has clearly explained that the accident had not taken place at the place where the buses used to turn towards Colony.

21. Likewise, PW-5 Gupat Ram, complainant has given a detailed narration of the facts that led to the accident. It is specifically stated therein that the bus came not in a fast speed but was being driven at wrong side of the road. Even while being cross-examined, it was not suggested to this witness that the bus was being plied on its own side and not on the wrong side of the road.

22. Likewise, PW-6 Nirmala Devi also deposed that the accident had taken place due to the fault of the bus driver. No doubt, PW-8, who is owner of the bus tried to shield the petitioner as he was his driver, who had been driving the offending bus. But the fact remains that he was not travelling in the bus and, therefore, his testimony cannot be taken into consideration as the same is based on hearsay and is therefore, inadmissible in evidence.

23. It is vehemently argued by Mr. Lakshay Thakur, learned counsel for the petitioner that the learned Courts below have ignored the testimony of PW-3, who was only the technical person examined in this case and has deposed that the brake of the van was not in a working order. However, his statement becomes insignificant once the photographs of the site Ex.P-1 to Ex.P-9 are seen. These photographs clearly reflect that the entire engine of the van has been completely destroyed, therefore, it would be impossible for any person including a technical person to give a definite opinion that the brakes of the van even at the time when the same was plied prior to the accident were not in working order and it does not require solomon’s wisdom to conclude that as on the date of the examination of the van, obviously its brakes had not been working.

24. Noticeably, the defence put-forth by the petitioner that the accident had taken place at a Chowk and the bus had turned at 90% angle towards Colony and the van had collided with the rear portion of the bus. However, this is not the actual or factual position as can otherwise be gathered from the photographs exhibited on record. These photographs clearly reveal that it is actually not of the Chowk that the accident had taken place. It would further be gathered that it was front side of the bus that hit the van and not the rear side as sought to be put-forth by the defence. From the photographs it can further be gathered that the van is being plied on its side, whereas the bus is being driven on the wrong side.

25. That apart, in case the driver of the van was negligent as is strongly contended by Mr. Lakshay Thakur, learned counsel for the petitioner, then what prevented the petitioner from prosecuting him is not forthcoming. Not only this, the petitioner has not led any evidence in his defence and none has come to support his version except the owner of the vehicle (bus) despite his belonging to the area in question, whereas admittedly the complainant and the other occupants belong to Kullu and many of them were travelling in the van first time on this road.

26. As a last ditch effort, learned counsel for the petitioner would vehemently argue that as the petitioner is the sole bread earner of his family, the sentence imposed by the learned trial Magistrate as affirmed by the learned Sessions Judge be reduced or he be extended the benefit of Probation of Offenders Act.

27. In Dalbir Singh vs. State of Haryana (2000) 5 SCC 82 while dealing with the road accidents and consequences visiting the victims and the families of such accidents, the Hon’ble Supreme Court made stern observations by observing that :- 

“13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance think 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.

14.Thus, bestowing our serious consideration on the arguments addressed by the learned counsel for the appellant we express our inability to lean towards the benevolent provision in Section 4 of the PO Act. The appeal is accordingly dismissed.” 

28. At this stage, it shall be apt to refer to a recent judgment of the Hon’ble Supreme Court in State of Punjab vs.Saurabh Bakshi (2015) 5 SCC 182 wherein it was held as under:- 

“Long back, an eminent thinker and author, Sophocles, had to say: 

"Laws can never be enforced unless fear supports them." 

Though the aforesaid statement was made centuries back, it has its pertinence, in a way, with the enormous vigour, in today's society. It is the duty of every rightthinking citizen to show veneration to law so that an orderly, civilized and peaceful society emerges. It has to be borne in mind that law is averse to any kind of chaos. It is totally intolerant of anarchy. If any one defies law, he has to face the wrath of law, depending on the concept of proportionality that the law recognizes. It can never be forgotten that the purpose of criminal law legislated by the competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect the collective interest and save every individual that forms a constituent of the collective from unwarranted hazards. It is sometimes said in an egocentric and uncivilised manner that law cannot bind the individual actions which are perceived as flaws by the large body of people, but, the truth is and has to be that when the law withstands the test of the constitutional scrutiny in a democracy, the individual notions are to be ignored. At times certain crimes assume more accent and gravity depending on the nature and impact of the crime on the society. No court should ignore the same being swayed by passion of mercy. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. In this context one may recapitulate the saying of Justice Benjamin N. Cardizo "Justice, though due to the accused, is due to the accuser too". And, therefore, the requisite norm has to be the established principles laid down in precedents. It is neither to be guided by a sense of sentimentality nor to be governed by prejudices.

14. In this context, we may refer with profit to the decision in State of Punjab v. Balwinder Singh (2012) 2 SCC 182 wherein the High Court had allowed the revision and reduced the quantum of sentence awarded by the Judicial Magistrate, First Class, for the offences punishable under Section 304-A, 337, 279 of IPC by reducing the sentence of imprisonment already undergone that is 15 days. The court referred to the decision in Dalbir Singh v. State of Haryana (2000) 5 SCC 82 and reproduced two paragraphs which we feel extremely necessary for reproduction:(Balwinder Singh case, SCC pp. 186-87, para 12) 

"12….1. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.

* * * 

13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. While considering the quantum of sentence to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a 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 the vehicle he cannot escape from a 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.’(Dalbir Singh vs.State of Haryana (2000) 5 SCC 82, SCC pp.84-85 & 87, paras 1 & 13)” 

24. Needless to say, the principle of sentencing recognizes the corrective measures but there are occasions when the deterrence is an imperative necessity depending upon the facts of the case. In our opinion, it is a fit case where we are constrained to say that the High Court has been swayed away by the passion of mercy in applying the principle that payment of compensation is a factor for reduction of sentence to 24 days. It is absolutely in the realm of misplaced sympathy. It is, in a way mockery of justice. Because justice is "the crowning glory", "the sovereign mistress" and "queen of virtue" as Cicero had said. Such a crime blights not only the lives of the victims but of many others around them. It ultimately shatters the faith of the public in judicial system. In our view, the sentence of one year as imposed by the trial Magistrate which has been affirmed by the appellate court should be reduced to six months.

25. Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the "Emperors of all they survey". Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as "larger than life". In such obtaining circumstances, we are bound to observe that the lawmakers should scrutinize, re-look and re-visit the sentencing policy in Section 304-A, IPC. We say so with immense anguish.” 

29. In view of the aforesaid exposition of law, I am of the considered view that instant is not a case where benefit of Probation of Offenders Act can be extended, particularly, when the Hon’ble Supreme Court has deprecated this practice.

30. In view of the above discussion, I find no merit in this revision petition and the same is accordingly dismissed.