Mohd. Sadiq alias Mohd. Siddiq vs State

H.N. Kapoor, J.—This revision is directed against the order dated 21-6-1975 passed by the Sessions Judge of Saharanpur in Gr. Appeal No. 79 of 1975 confirming ,the conviction of the Applicant u/s 304A and the sentience of two years'' R.I. under that section.

The prosecution case is that on 13-9-1973 at about 1.30 P.M. one Sunil Kumar aged about, 14 years, who was going on a cycle towards the clock tower on Ambala Road near Darpan Talkies in the city of Saharanpur, was knocked down by bus No. USV 5226, was crushed and run over by the left wheels of the bus resulting in his instantaneous death on the spots The bus was being driven by the Applicant who was said to be driving the bus rashly and negligently. The Applicant had taken the defence that the boy was knocked down by another bus which speeded away and the Applicant who was behind that bus had stopped his bus and was wrongly implicated in this case. His defence was not accepted and both the courts below found the prosecution case proved.

This revision has been pressed on the question of sentence only.

Learned Counsel for the Applicant stated that the learned Judge at the time of admission was inclined to give the benefit of Section 360 Code of Criminal Procedure to the Applicant in case he was so satisfied on the basis of the report of the Probation Officer. The Applicant had, therefore, under that impression filed an affidavit, making out a case for allowing the benefit u/s 360 Code of Criminal Procedure of the new Code. He had even admitted the guilt and shown repentance. He had given his age as 61 years and had stated that he would start a Tea stall to support his family members. In other words he would not drive any vehicle in future. He gave an undertaking that he would not commit any offence in future. The learned Judge had then directed the Chief Judicial Magistrate, to make an enquiry through the Probation Officer as regards the Applicant''s Character, antecedents, home surroundings and other matters of like nature as contemplated by Rule 12 of the U.P. First Offenders'' Probation Rules. The report of the Probation Officer dated 4-9-1975 has now been received. It shows that the Applicant is aged 61 years and is reported not to have committed any offence in the past. He is the son of a retired patwari and has a family consisting of his wife, and seven children to support. He owns 260 yards of land and has a fixed abode. He has even stated that it is possible that the Applicant had committed the offence on account of his old age. The Applicant had accepted his mistake before him. The Probation Officer has even reported that a sum of Rs. 5,000/- had been paid by the General Insurance Company to the relations of the deceased, namely, Kundan Lal and Smt. Kamla Rani in satisfaction of the claim under the Motor Accident claim No. 29/1973. He however, reported towards the end that the Applicant being aged above 24 years, was not entitled to the benefit of Section 4 of the U.P. First Offenders'' Probation Act (hereinafter referred to as the Act). But a lenient view could be taken.

Learned Assistant Govt. Advocate has argued that Section 360 Code of Criminal Procedure has now been repealed by Clause (7) of U.P. Ordinance No. 38 of 1975 and it is not possible to allow him the benefit u/s 360 Code of Criminal Procedure (new). On the other hand learned Counsel for the Applicant has argued that the benefit of the Act can still be granted to the Applicant. According to him, Section 361 Code of Criminal Procedure was still applicable to the case in which the benefit of the Act could be granted and it was the duty of the lower courts which decided the case after 1-4-1974 to give special reasons for not giving the benefit of the Act. Clause (7) of the U.P. Ordinance No. 38 of 1975 reads as follows:

Clause (7). In Section 484 of the said Code, in Sub-section (2), after Clause (d) the following clause shall be inserted and be deemed always to have been inserted, namely:

(c) the provisions of the United Provinces Borstal Act, 1938, the United Provinces First Offenders'' Probation Act, 1938 and the Uttar Pradesh Children Act, 1951 shall continue in force in the State of Uttar Pradesh until altered or repealed or amended by the competent legislature or other competent authority, and accordingly, the provisions of Section 360 of this Code shall not apply to that State, and the provisions of Section 361 shall apply with the substitution of references to the Central Acts named, therein by references to the corresponding Acts in force in that State.

There can be no doubt that according to this Ordinance the U.P. First Offenders'' Probation Act, 1938 is to be substituted for Probation of Offenders'' Act, 1958 under Sub-clause (a) of Section 361 and the court is required to give special reasons for not giving the benefit of that Act to persons who were entitled to be given that benefit. Learned Asstt. Govt. Advocate has then argued that the benefit of the Act can be given to youthful offenders only who are below 25 years of age. In support of this contention, he has relied upon the definition of ''Probationer'' given in Rule 2 Sub-rule (c) of the Rules under the U.P. First Offenders'' Act, 1938. It is as follows:

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He has also relied upon the "Statement of Object and Reasons" given under that Act which are as follows:

The State Government is of opinion that in order to ensure that an offender, released on probation of good conduct really conducts himself properly and becomes a useful member of the society something more definite is required than the mere taking of security, and that a provision for placing such offenders under the supervision of certain officers or societies appointed to take care of them and watch their behaviour and conduct would achieve that object.

He then placed reliance on Sub-section (2) of Section 4 of the Act and has argued that the intention of the legislature was to give benefit to such youthful offenders only who could be placed under the supervision of the Probation Officer. He has laid great stress on the fact that Sections 562, 563 and 564 Code of Criminal Procedure had been repealed by Section 15 of that Act as they were too general in their application. Learned Counsel for the Applicant has, however, argued that u/s 4 of the Act there is no bar in giving benefit of the Act to persons above the age of 25 years. Section 4 of the Act is as follows:

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In my opinion, the language of Section 4 of the Act is wide enough to include persons who are over 25 years of age although persons below 25 years of age are to be kept under the supervision of the Probation Officer. Such a person is described as ''Probationer because he is kept under the supervision of the Probation Officer. The definition of ''Probationer'' does not imply that the benefit of the Act cannot be given to any person over 25 years of age. But I have no doubt in my mind that the intention of the legislature was to give benefit of the Act mainly to youthful offenders and to extend benefit of this Act to other persons under exceptional circumstances. I shall even go to the extent of observing that the provisions of Section 361 CPC will be applicable to youthful offenders below 25 years of age only and recording of special reasons in case of other persons will at the most be a mere irregularity causing no prejudice to the accused, in case no such plea was taken before the lower court. The very fact that the accused is aged above 25 years may be considered to be sufficient or special reason. In the case of Chand and Others Vs. State of U.P., their Lordships of the Supreme Court considered the case of only those persons who were under 21 years of age for being granted benefit of the Act for committing offences u/s 304 Part II IPC. It is thus clear that the benefit under the Act is mainly to be given to youthful offenders.

However, as I have held that there is no bar in giving benefit to persons above 25 years of age also, though it should be done under exceptional circumstances, the present case appears to be a fit case in which the benefit should be allowed under peculiar circumstances. The Applicant is aged 61 years and had never been convicted for any offence. It appears that it was due to his old age that he could drive so negligently resulting in the unfortunate death of a young boy of 14 years pf age.

He has now given up driving and started a Tea Stall. He is not expected to repeat similar offences in future. It was a day time occurrence in a crowded street and it could safely be presumed that be was not driving the bus under intoxication. The Applicant has already undergone imprisonment for about three weeks.

In the result the revision is partly allowed to this extent that the conviction of the Applicant u/s 304A IPC is maintained but instead of undergoing imprisonment he should be released on furnishing personal bond for Rs. 2,000/- and two sureties each in the like amount to the satisfaction of the Judicial Magistrate concerned to keep peace and be of good behaviour for a period of three years. During this period he shall have to appear and receive sentence whenever called upon but the sentence shall not exceed the period for which he has still to undergo imprisonment under the orders of the lower court. He is allowed one month''s time from the receipt of the record in the lower court to furnish the necessary bonds. The record shall be despatched to the lower court immediately within two weeks. The Applicant is on bail. His bail bonds shall stand automatically discharged after the necessary bonds have been furnished.