Crl. Revision No. 302 of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- Crl. Revision No. 302 of 1997 Date of decision: 10.12.2009 Naresh Kumar ........ petitioner Versus State of Punjab .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. B S Sidhu, Advocate for the petitioner Mr. K S Pannu, Deputy Advocate General, Punjab for the respondent - State -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. (Oral) This is a revision petition against the order 19.08.1996 passed by the Sub Divisional Judicial Magistrate, Sunam, vide which the petitioner was convicted under Section 304-A of Indian Penal Code and sentenced to undergo rigourous imprisonment for a period of one and half years and to pay a fine of Rs.500/- and in default of payment of fine to further undergo rigourous imprisonment for a period of one month. The appeal filed against aforesaid order was also dismissed vide judgement dated 17.03.1997 passed Crl. Revision No. 302 of 1997 2 by the Sessions Judge, Sangrur. The facts in short as recorded by the District Judge while dismissing the appeal filed by the petitioner are as follows:- “The prosecution case is that Tej Kaur (PW2) and her family members were residing in a pucca built hut set up by them in Wakf Board Land. About 15-16 days prior to the occurrence they renovated the construction by rebuilding the same with pucca bricks. On 15.09.1992, Tara Singh, husband of Tej Kaur, was away from the house. Tej Kaur and her 7 years old daughter Karamjit Kaur were present there along with Dalip Kaur mother of Tara Singh. Harjinder Singh, Building Clerk of Municipal Committee, Sunam, and the appellant came there on a tractor make Eicher. They were accompanied by a number of labourers. They asked Tej Kaur and others to vacate the premises as it was an encroachment upon the municipal land. In the meanwhile, Bhura Singh (PW1) also came there. Tej Kaur entreated the appellant, who was driving the tractor, and Harjinder Singh to allow them two hours to vacate the premises. Harjinder Singh asked the appellant to demolish the construction by hitting the tractor trolley back wards against the built area. The appellant drove the tractor backwards and the trolley hit against the wall of the built house. As a result of the Crl. Revision No. 302 of 1997 3 impact a portion of the construction fell down. Karamjit Kaur daughter of Tej Kaur could not come out. As a result of the fall of material she suffered grave injuries on the head and other parts of body. She was taken to Civil Hospital, Sunam, but she died on way to the hospital.” Learned counsel for the petitioner while challenging the aforesaid finding submitted that the prosecution has failed to bring home the guilt against the petitioner beyond reasonable doubt. The learned lower Appellate Court has based its findings on mere conjectures and surmises. It has wrongly taken into account the findings of this Hon'ble Court in the case of Municipal Council/Committee v. Tara Singh, reported in 1997(1) PLR 493 in which the father of the deceased in the present case was allowed compensation. It is well settled that the conclusions in a case of civil liability can be reached on the preponderance of evidence and the said findings have no value in a criminal case where guilt of the accused is to be proved beyond reasonable doubt. Therefore, the findings based on preponderance of evidence were not liable to be taken into account by the learned Sessions Judge. As such, the impugned judgement and order is vitiated. It was further argued that no sanction to prosecute the petitioner was obtained. He was a public servant performing public duty. Learned counsel for the respondent – State argued that the accused in fact was a safai karamchari and was not the driver of the tractor trolley in question. Hence, he was not performing his duty. There is nothing to show that he was a driver. Thus, the accused was also negligent and guilty Crl. Revision No. 302 of 1997 4 of driving the tractor-trolley whereas, he was a safai karamchari. Thus, no sanction was required as he was not performing the duty assigned to him. He should have refused to drive the same. After hearing learned State counsel, I find that the petitioner was negligent. He did not act with due care and caution. In fact, he was not supposed to be driving the tractor trolley as he was a safai karamchari. Thus, the question to take sanction does not arise. His negligence resulted into death of Tej Kaur. After hearing learned counsel for the parties, I find that at least what the petitioner accused should have done was to ensure that the inmate of the house was on the opposite side of the wall or inside the premises. He should have taken care that the demolition did not result in loss of life. Accordingly, there is no ground to set aside the order of conviction dated 19.08.1996 passed by the Sub Divisional Judicial Magistrate, Sunam and the same is accordingly upheld. At this stage, learned counsel for the petitioner submitted that the petitioner has not misused the concession of bail and, as such, the petitioner may be released on probation. Learned counsel for the petitioner relied upon a judgement rendered by the Rajasthan High court in the case of Narendra Singh and another v. State, reported as 2008(4) RCR(Criminal) 601 to states that no special reasons was given to deny the relief of probation. In the case of Chhani v. State of U.P. (2006)5 SCC 3961, the Hon'ble Supreme Court while dealing with the differences between Sections 360 and 361 of Cr.P.C., on the one hand, and Section 4 of the Probation of Offenders Act, 1958 on the other hand, held as under:- Crl. Revision No. 302 of 1997 5 “Where the provisions of the Probation Act are applicable the employment of Section 360 of the Code is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the legislature, that gave birth to the Probation Act and the Code wanted to obviate. Yet the legislature in its wisdom has obliged the Court under Section 361 of the Code to apply one of the other beneficial provisions; be it Section 360 of the Code or the provisions of the Probation Act. It is only by providing special reasons that their applicability can be withheld by the Court. The comparative elevation of the provisions of the Probation Act are further noticed in sub section (10) of Section 360 of the Code which makes it clear that nothing in the said section shall affect the provisions of the Probation Act. Those provisions have a paramountcy of their own in the respective areas where they are applicable. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation Act is much wider. It applies to any person found guilty of having committed an Crl. Revision No. 302 of 1997 6 offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for probation Officers in assisting the courts in relation to supervision and other matters while the Probation Act does make such a provision. While Section 12 of the Probation Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the Probation Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the code does not contain parallel provision. Two statues with such significant differences could not be intended to coexist at the same time in the same area. Such coexistence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8 (1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable. Enforcement of the Probation Act in some particular area excludes the applicability of the provisions of Sections 360 and 361 of the code in that Area.” The petitioner is the first offender. He is the sole bread winner Crl. Revision No. 302 of 1997 7 of his family. He is facing the trial since 11.09.1992. He belongs to weaker section of society and is only a safai karamchari. He was part of the force for demolition of an unauthorised construction by the Municipal Committee. The incident pertains to 1992. He was at that time a young man of 26 years. He has already suffered a lot and therefore, the benefit of probation deserves to be extended to him in stead of sending him to jail for undergoing the sentence. The claimant has also been paid Rs.60,000/- as compensation under the Motor Vehicles Act, 1988. In view of the above, the sentence imposed upon the petitioner is set aside and instead the petitioner is ordered to be released on probation of good conduct on his furnishing of bond in the sum of Rs.20,000/- with one surety in the like amount for keeping peace and good behaviour for a period of one and half years. The necessary probation bonds be furnished within a period of two months from today. The fine imposed is converted as cost of compensation to the claimants. It is further clarified that although the conviction has been upheld but under Section 12 of the Probation of Offenders Act, 1958, the conviction shall not adversely affect the service record of the petitioner. Disposed of in the aforesaid terms. (Nirmaljit Kaur) Judge December 10, 2009 mohan