Dismissed

Vijai Kumar v. State of U.P.

Allahabad HC5 Oct 2018CRLRD/186/1999

Case brief

AI extract

What is this about?

Revision against conviction of a government driver for rash and negligent driving of a truck that killed two persons and injured seven. The court rejected pleas of lenient sentence, want of sanction under Section 197 Cr.P.C., non-naming in the FIR, absence of identification parade and absence of eye witnesses, and declined to interfere with concurrent findings.

What the court decided

AI extract

Vijai Kumar Vs State of U.P. — Criminal Trial and Appeal | Allahabad HC (2018)

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Reserved on :20.09.2018 Delivered on :05.10.2018

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Court No. - 41

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Case :- CRIMINAL REVISION DEFECTIVE No. - 186 of 1999

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Revisionist :- Vijai Kumar Opposite Party :- State Of U.P. Counsel for Revisionist :- R.S. Tiwari,L.V. Singh Counsel for Opposite Party :- Govt. Advocate

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Hon'ble Aniruddha Singh,J.

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Heard Sri P.S. Yadav, learned counsel for the revisionist, Sri C.P. Singh, learned A.G.A. for the State and perused the record.

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This revision has been preferred against the judgement and order dated 09.10.1998 passed by Ist A.C.J.M., Kanpur Dehat convicting the revisionist to undergo 3 months simple imprisonment under Section 279 I.P.C. AND 3 months simple imprisonment under Section 337 I.P.C. and one year rigorous imprisonment under Section 304-A I.P.C. and one year rigorous imprisonment under Section 427 I.P.C. in Case No. 28 of 1994 and against the order dated 27.07.1999 passed by 8th Additional Sessions Judge Kanpur Dehat dismissing the Criminal Appeal No. 70 of 1998 against order dated 09.10.1998.

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In brief, according to the prosecution case an FIR was lodged against unknown persons alleging that on 21.05.1993 at 14.00 P.M. near Village Harawatpur, P.S. Shivrajpur at G.T. Road a Truck bearing No. U.M.O. 9220 dashed the Jeep No. U.P. 71-3271 by driving his Truck rashly and negligently whereby two persons namely Ram Swaroop and Siddh Nath died and Suresh Chandra, Jang Bahadur, Manju Devi, Virendra Singh, Mohd. Vaseem, Amarnath and Sharda Devi seven

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persons received injuries and one goat was also died. The FIR was lodged against the truck driver and after investigation charge sheet was submitted against this accused/revisionist. The charges have been framed. The prosecution examined six witnesses, who have been examined as PW-1 Shiv Das @ Shiv Pal, PW-2 Kamlesh Kumar, PW-3 Dr. Jai Prakash, PW-4 Mehu, PW-5 Ajay Kumar and PW-6 S.I. Mansa Singh. Statement of the accused under Section 313 Cr.P.C. was recorded and after hearing the learned counsel for the parties, the impugned order was passed and the present revisionist was convicted and the appeal was dismissed. Hence, this revision.

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Learned counsel for the revisionist submitted that the accused was not named in the FIR. No identification parade was done under Section 97 Cr.P.C. No sanction was granted by the competent authority. There was no eye witness. This is the first offence of the revisionist. He is not a habitual offender. The revisionist is a Government Servant and he is still in service therefore, lenient view may be taken.

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Learned counsel for the revisionist has placed reliance upon a judgement of the Apex Court in the case of State of Orissa Vs. K. Rajeshwar Rao; 1992 (1) SCC 365 on the point of sentence and N. Sukumaran Nair Vs. Food Inspector Mavelikara; 1997 (9) SCC 101 wherein in the case of 323, 7/16 of PF Act, the accused was sentenced only R.I. undergone and fine.

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First of all I will deal on the point of sentence whether the revisionist may be sentenced only R.I. and fine. From the perusal of case laws placed reliance by the learned counsel for the revisionist, I found that in both the cases, the offence was not grievous in nature. One was of under Section 323 I.P.C.

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and second was under Section 7/16 of the Prevention of Food Adulteration Act but in this case the revisionist was convicted under Sections 279, 337, 304A and 427 I.P.C. and by the negligent act of the revisionist two persons and one goat were killed and seven persons received injuries. Hence on the point of sentence it is not a case where lenient view may be taken.

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Where a question of sanction under Section 197 Cr.P.C. is concerned, it is necessary that a person acting or purporting to act in discharge of his official duty.

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Learned counsel for the revisionist submits that the revisionist was a government servant posted as driver in PWD department in the State of U.P. and the act was done during discharge of his official duty and the question is whether the driving rashly and negligently is covered in discharge of his official duty or not. Certainly answer will be 'no'. It is not expected from the driver to drive the vehicle rashly and negligently, which resulted to kill two persons and one goat and sever persons got injured. The act done by the revisionist was not covered under the purview of protection given under Section 197 of Cr.P.C. It is also pertinent to mention here that after the rash and negligent accident done by the revisionist, he fled away from the spot and FIR was lodged. 8. From the perusal of record, it also transpires that the injured Suresh Chandra got four injuries, Jang Bahadur got three injuries, Manju Devi got two injuries, Virendra Singh got three injuries , Mohd. Vaseem got three injuries, Amarnath got two injuries and Sharda Devi got three injuries. The injuries of the injured were proved by the doctor before the trial court and other documents relating to panchnama, postmortem report of two persons and others were also proved before the trial court. From the perusal of record, it

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also transpires that this plea was not taken by the revisionist before the trial court as well as in the appellate court and this is also a factual matter and it has to be raised at the time of trial as well as appeal. It is well settled law that this type of act cannot be permitted by any appointing authority to do such an act in discharge of official duty. Section 197 Cr.P.C. is not a protection to save a guilty person, for an act which was done rashly and negligently.

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In the case of Shreekantiah Ramayya Munipalli Vs. State of Bombay; AIR 1955 SC 287 and Amrik Singh Vs. State of Pepsu; AIR 1955 SC 309, it was held that “there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable but not a pretended for fanciful claim, that he did it in the course of the performance of his duty.” In Hari Ram Singh Vs. Emperor; AIR 1939 FC 43 and H.B. Gill Vs. The King; AIR 1948 PC 128 & in the case of Albert West Meads Vs. The King; AIR 1948 PC 156, it was observed that:

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“It is not therefore every offence committed by a public servant that requires sanction for prosecution Under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted. An office may be entirely unconnected with the official duty as such or it may be committed within the

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scope of the official duty. Where it is unconnected with the official duty there can be no protection.”

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It is also made clear that this is not a case where sanctioning authority has refused to give sanction in this regard. Hence, it is very clear that the appointing authority was satisfied that the act of this revisionist was not done in discharge of official duty. It is also very pertinent to mention here that the revisionist, at the time of examination, was present before the Court. He admitted that Truck No. U.M.O. 9220 was driving by himself at the time of incident and he also admitted that the incident was done by him and that was his fault. In these circumstances, it is also an admitted fact by the accused/revisionist that he was acting at the time of incident negligently and rashly. Hence, at this stage I find no force in the argument raised by learned counsel for the revisionist that the revisionist may be acquitted on the ground that no sanction was granted under Section 197 of Cr.P.C.

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Next argument raised by learned counsel for the revisionist is that, accused was not named in the FIR and no identification parade was done, hence he is liable to be acquitted.

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This argument has also no force because as stated above, the revisionist has admitted the fact that he was driving the said truck at the time of incident. This fact was supported by the Department also.

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Learned counsel for the revisionist submits that there was no eye witness, hence the accused is liable to be acquitted but I find no force on the argument raised by learned counsel for the revisionist because as from the record it transpires that PW-1 Shiv Das @ Shiv Pal, PW-3 Dr. Jai

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Prakash and PW-5 Ajay Kumar were examined as witnesses of fact and PW-5 Ajay Kumar has clearly stated that he is the eye witness of the incident and he has seen the incident clearly that was done by Truck No. U.M.O. 9220.

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From the perusal of records, it transpires that both the lower courts have given concurrent finding on facts and the view taken by the court below is possible view hence no interference is called for in revision.

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In Ahmed Hussein Vali Mohammed Saiyed and another Vs. State of Gujrat, 2009 (7) SCC 254 , the Court observed that:

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"any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system". (Emphasis added).

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In Jameel Vs. State of Uttar Pradesh, 2010 (12) SCC 532, the Court held that:

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"It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

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17. In Guru Basavaraj @ Benne Settapa Vs. State of

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Karnataka, 2012 (8) SCC 734 , the Court said that:

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"The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored."

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18. In Gopal Singh Vs. State of Uttarakhand, 2013 (3)

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JT 444, the court said that:

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"Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence".

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In Hazara Singh Vs. Raj Kumar and another, 2013

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(9) SCC 516, the Court observed that:

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"We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment". (Emphasis added).

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The judicial review in exercise of revisional jurisdiction is not like an appeal. It is a supervisory jurisdiction which is exercised by the Court to correct the manifest error in the orders of subordinate courts but should not be exercised in a manner so as to turn the Revisional court in a Court of Appeal. The legislature has differently made provisions for appeal and revision and the distinction of two jurisdictions has to be maintained.

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In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, AIR 1962 SC 1788 it was held that revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in flagrant miscarriage of justice. However, this was also a case in which revisional jurisdiction was invoked against an order of acquittal. If the Court lacks jurisdiction or has

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excluded evidence which was admissible or relied on inadmissible evidence or material evidence has been overlooked etc., then only this Court would be justified in exercising revisional power and not otherwise. 22. The above view has been reiterated in Mahendra Pratap Singh Vs. Sarju Singh, AIR 1968 SC 707; Khetrabasi Samal Vs. State of Orissa, AIR 1970 SC 272; Satyendra Nath Dutta and another Vs. Ram Narain, AIR 1975 SC 580; Jagannath Choudhary and others Vs. Ramayan Singh and another, 2002(5) SCC 659; and, Johar and others Vs. Mandal Prasad and another, 2008 Cr.L.J. 1627 (S.C.).

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In Duli Chand Vs. Delhi Administration, 1975(4) SCC 649 the Court reminded that jurisdiction of High Court in criminal revision is severely restricted and it cannot embark upon a re-appreciation of evidence. While exercising supervisory jurisdiction in revision the Court would be justified in refusing to re-appreciate evidence for determining whether the concurrent findings of fact reached by learned Magistrate and Sessions Judge was correct.

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In Pathumma and another Vs. Muhammad, 1986(2) SCC 585 reiterating the above view the Court said that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of a Magistrate on a question of fact.

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In Munna Devi Vs. State of Rajasthan and another, 2001(9) SCC 631 the Court said:

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"The revision power under the Code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the

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appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged."

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In Ram Briksh Singh and others Vs. Ambika Yadav and another, 2004(7) SCC 665 , in a matter again arising from the judgment of acquittal, the revisional power of High Court was examined and the Court said:

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“4. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice."

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In view of above exposition of law and considering the facts and circumstances of this case, this Court finds no merit in any of the submissions advanced on behalf of revisionist.

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The revision is, accordingly, dismissed.

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Interim order, if any, stands vacated.

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Revisionist Vijai Kumar is in jail. The Chief Judicial Magistrate, Kanpur Dehat shall ensure that after completion of sentence, he shall be released forthwith.

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Copy of this judgment be transmitted to the lower Court within 24 hours. Compliance report be submitted within one month. Office to keep said report on record.

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Order Date :- 05.10.2018

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Sandeep

Vijai Kumar v. State of U.P.

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Vijai Kumar v. State of U.P.

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