S. N. BHARGAVA, J. - (1.) THIS revision petition has been filed challenging the conviction and sentences passed by the Additional Sessions Judge No. 1 Alwar, u/s 304-A, I. P. C.
(2.) THIS revision petition came up for admission. Learned Single Judge (Mrs. Kapur J.) was of the opinion that it does not call for any interference in revision with regard to the merits of the case but she admitted the revision petition on the ground of sentence in view of a decision of this court in Amar Lal V. State of Raj. (1 ). When this revision petition came up for final disposal before Hon'ble V. S. Dave J. after hearing the arguments at length, he passed detailed order dated 27. 7. 87 referring the following question for consideration by the larger bench - "whether the decision in the aforesaid case lays down a general preposition that in all automobile accident cases there should not be a lesser punishment than one year's imprisonment and a fine of Rs. 15,000/-"? Therefore, this matter has come up before us. Since this is a very important question, we thought it proper to issue notice to the learned counsel, inviting them if they wanted to submit arguments on the above question. We have heard S/shri Jagdeep Dhankhar and R. M. Lodha, for the petitioner, Mr. H. C. Rastogi for the complainant. In our humble opinion, there was no necessity of making any reference to larger bench as a judgment in a particular case by High Court cannot lay down a general preposition to apply in all similar cases. Generally, a judgment in a criminal case is a judgment in personam and not judgment in rem nor it can lay down any general law. However, since detailed submissions have been made, we shall like to mention them as under- Criminal Revision Petition No. 65/83 Amar Lal vs. State (supra) was a revision petition against the judgment passed by Additional Sessions Judge, confirming the sentence passed by the trial court, convicting the accused Amar Lal, u/s 304-A IPC and sentencing him to one year R. I. and a fine of Rs. 500/-, and in default, further 2 months' S. I. While disposing of this revision petition, Hon'ble G. M. Lodha, as he then was, passed the order dismissing the revision petition and made very strong observations that there should be a minimum sentence of one year RI and a fine of Rs. 15,000/- for offences u/s 304-A IPC which has raised the present controversy. Section 304-A IPC reads as under :- "causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extent to two years, or with fine, or with both. " Mr. Dhankhar, learned counsel for the petitioner, submitted that in view of Section 360 Cr. P. C. and the provisions of Probation of Offenders Act, since the maximum punishment is of two years, benefit of probation should be given to an offender who is found guilty u/s 304a IPC and if the court does not give the benefit of probation, it has to record special reasons for not having done so, and in this connection, he has drawn our attention to the observations of the Supreme Court in Bishnu Deo Shaw V. State of West Bengal (2), wherein it has been observed that if the Court refrains from dealing with an offender u/s 360 Cr. P. C. or under the provisions of the Probation of Offenders Act, Section 361 Cr. P. C, which is a new provision in the 1973 Code, makes it obligatory for the court to record in its judgment special reasons for not doing so. Sec. 361 Cr. P. C, casts a duty upon the Court to apply the provisions of Sec. 360 Cr. P. C. wherever it is possible to do so and to state the special reasons if it does not do so. Our attention has also been drawn to Aitha Chander Rao V. State of Andhra Pradesh (3) in which the accused was convicted u/s 304-A IPC and sentenced to two years R. I. and a file of Rs. 500/-, by the Sessions Judge, and affirmed by the High Court but the Supreme Court released the offender on probation looking to the facts and circumstances of the case having been mentioned in that judgment.
(3.) RELIANCE was also placed on Jagdish Chander Vs. State of Delhi (4) in which the incident had taken place in the year 1965. Accused was convicted, u/s 304-A IPC and sentenced to six months R. I. and a fine of Rs. 500/- which was confirmed on appeal, by the Sessions Judge and revision was rejected by the High Court. On special leave petition having been filed, the Supreme Court confirmed the conviction but sentenced the accused to the term of imprisonment already undergone and increased the fine from Rs. 500/- to Rs. 700/-, for the reason that the accident had taken place eight years ago, and that for collision between the truck and the auto-scooter rickshaw, both were to be blamed. Mr. Dhankhar, learned counsel for the petitioner also drew our attention to Sec. 235 (2) and 248 (2) Cr. P. C. which run as under:- "235. Judgment of acquittal or conviction - (1 ). . . (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Sec. 360, hear the accused on the question of sentence, and then pass sentence on him according to law. " "248. Acquittal or conviction - (1 ). . . . . (2) Where, in any case under this Chapter, the Magistrate finds the accused guilty, but does not proceed in accordance with the provisions of sec. 325 or section 360, he shall, after hearing the accused on the question of sentence, pass sentence upon him according to law". (3 ). . . . . . " 9. These two sub sections also envisage that the Judge should consider whether benefit of Section 360 Cr. P. C. is to be given to the accused on the facts of the case, and if not, then, he should hear the accused before passing sentence against him. These two sub-sections were added by the amendments made in 1973. In this connection, learned counsel for the petitioner has placed reliance on Muniappan V. State of Tamil Nadu (5) wherein, while commenting on Sec. 235 (2) Cr. P. C. it has been observed that the occasion to apply the provisions of Sec. 235 (2) Cr. P. C. arise only after the conviction is recorded. What then remains is the question of sentence; the court while on the question of sentence, is in an altogether different domain in which facts and factors which operate, are of an entirely different order than those which come into play on the question of conviction. A Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. The court should approach the question of sentence from broad sociological point of view. Our attention has also been drawn to the following observations of the Supreme Court in Dilbag Singh V. State of Punjab (6):- "but penal humanitarianism, strategies or non-institutional rehabilitation and a complex of other considerations in making an offender a nonoffender have revolutionised the judicial repertory in re-socialising the criminal. The sentence hearing for which the Criminal Procedure Code, 1973 provides in S 248 (2) and S. 235 (2) has hardly received the serious concern of the courts despite the International Probation Year and therapeutic accent in penological literature. If the criminal law as a whole is the Cinderella of jurisprudence, then the law of sentencing is Cinderella's illegitimate baby. Pre-sentence investigation reports, bestowal of intelligent care on the choice between institutional and non-institutional disposition and habitual neglect' of new avenues open to the court have constrained us to grant leave in the case so that guidelines may be laid down and probation and community-oriented methods lying in the legal limbs may be re-activated. Our prisons are over-crowded, our prisoners are subjected to iatrogenic incarceration, our penal drills are self-defeating callous to correctional measures and our jail buldges budge without countervailing community benefits because the Bench and the Bar have dismissed as below judicial visibility such patterns as probation, conditional release. The time has come for courts to abandon the Monroe Doctrine towards penology and concern itself with innovative sentences. " ;