Jabir Khan vs State Of Jharkhand

Heard learned counsels for the parties.

This application is directed against the judgment dated 17.07.2013, passed by the learned Principal Sessions Judge, Palamau at Daltonganj in Criminal Appeal No.56/2012, whereby the judgment of conviction and order of sentence, both dated 14.05.2012, passed by the Judicial Magistrate 1st Class, Palamau at Daltonganj, in G.R. No.320/2006, convicting and sentencing the petitioner for the offence committed under Section 304 A of IPC and to undergo R.I for one year and to pay a fine of Rs.1,000/- and in default of payment of fine further S.I for 15 days and further convicting him for offence under Section 279 of the IPC and to undergo R.I for six months and to pay fine of Rs. 1,000/- and in default of payment of fine further S.I for 15 days and both the sentences were directed to run concurrently, has been confirmed and appeal preferred by the petitioner has been dismissed.

The prosecution case in brief is that on 07.03.2006 at about 6:30 P.M, the nephew of the informant namely, Dilip Kumar Pandey along with one person namely, Nepali, were returning to his home from his shop on motorcycle and when they reached near Pal Hotel, a Commander Jeep driven rashly and negligently by its driver hit them and in the said occurrence nephew of the informant received serious injury and subsequently in course of treatment he succumbed to his injuries.

On the basis of fardbeyan of the informant- Pankaj Kumar Pandey, an F.I.R being P.S. Case No.15/2006 dated 09.03.2006 was registered for the offence under Sections 279/304A IPC. After the investigation, the chargesheet was submitted and cognizance was taken under Section 279/304 A to which the petitioner pleaded not guilty.

Based on the evidences produced before him, the learned trial court found the petitioner guilty for the offence committed under Sections 279 and 304 A and sentenced him as stated herein above.

Being aggrieved, the petitioner filed an appeal being Cr. Appeal No.56/2012. The learned appellate court after hearing both the parties and examining the lower court records came to conclusion that the learned trial court has not committed any error in passing the judgment of conviction and order of sentence and finally dismissed the appeal.

Learned senior counsel for the petitioner has vehemently argued that the driver is not named in the F.I.R and even the registration number of the vehicle has not been mentioned in the F.I.R. He further argued that the investigating officer has not been examined in this case nor any report has been called for from the motor vehicle inspector, who has also not been examined. Finally, the learned senior counsel concluded his argument by submitting that even assuming the facts of the case to be true, this is the first offence of the petitioner and some leniency may be given to him in view of the object of Probation of Offenders Act, 1958.

On the other hand learned APP has fully supported the case of the prosecution and has submitted that there is no error whatsoever has been committed by both the Courts below and the instant application deserves to be dismissed.

So far as the merit of the case is concerned, keeping in mind the limitation in revision jurisdiction, I am not inclined to interfere with the judgment of conviction. However, while appreciating the argument rendered by the learned senior counsel for the petitioner with respect to Probation of Offenders Act, let us consider the claim and eligibility of applying Section 4 of the Probation of Offenders Act. Sub section (4) of the Probation of Offenders Act contains the words "Notwithstanding anything contained in any other law for the time being in force."

The above non-obstante clause points to the conclusion that the provisions of Section 4 of the Probation of Offenders Act would have an overriding effect and shall prevail if the other conditions prescribed therein are fulfilled. Those conditions are:

(i) The accused is found guilty of having committee an offence not punishable with death or imprisonment for life;

(ii) The Court finding him guilty is of the 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;

(iii) The accused in such an event enters 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.

The underlying object of the above provisions obviously is that an accused person should be given a chance of reformation, which he would lose in case he is incarcerated in prison and associates with hardened criminals. It is submitted that the provisions of the said Act are beneficial provisions and, therefore, they should receive wide interpretation and should not be read in a restricted sence (Ishar Das v. State of Punjab, 1973 (2) SCC 65: (AIR 1972 SC 1295). Section 4 of the Probation of Offenders Act applies to all kinds of offenders, whether under or above the age of 21 years. This section is intended to attempt possible reformation of an offender instead of inflicting upon him the normal punishment of his crime.

In the instant case it is a fact that there is no criminal antecedent of the petitioner, as such, in the interest of justice, it will be proper to give benefit of Probation of Offenders Act to the petitioner. Hence, the petitioner is directed to be released under Section 4 of Probation of Offenders Act after entering into a bail bond of Rs.5,000/- with two sureties with a like amount each for keeping peace and good behaviour for a period of two years, failing which, he will serve rest sentence as passed against him by the learned Judicial Magistrate 1st Class, Palamau at Daltonganj. The petitioner is also directed to pay fine of Rs.10,000/- which should be paid as compensation to the legal heirs of the deceased in terms of Section 357 (1) (C) of Cr. P.C.

With the aforesaid observations and directions, the instant revision application is disposed of .

Let the lower court record be sent to the court concerned forthwith.