Gagan Kumar Vs State of Hp

Petitioner has preferred the present criminal revision, against the judgment, dated 6^th August, 2013, passed by the Court of learned Sessions Judge, Mandi, District Mandi, H.P. (hereinafter referred to as the ‘Appellate Court’), in Criminal Appeal No. 14/2009, titled as Gagan Kumar versus State of Himachal Pradesh & Another.

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1 Whether Reporters of local papers may be allowed to see the judgment? Yes.

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Vide judgment, dated 6^th August, 2013, the learned Appellate Court has dismissed the appeal preferred by the petitioner, against the judgment of conviction, dated 12^th February, 2009 and order of sentence, dated 13^th February, 2009, passed by the Court of learned Sub Divisional Judicial Magistrate, Chachiot at Gohar, District Mandi, Himachal Pradesh (hereinafter referred to as the ‘trial Court’) in Police Challan No.25-I/2006/5-II/2006, titled as State of Himachal Pradesh versus Gagan Kumar & Another.

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The learned trial Court, vide judgment of conviction and order of sentence, as referred to above, has convicted petitioner Gagan Kumar for the offences punishable under Sections 279 and 337 of the Indian Penal Code (hereinafter referred to as ‘IPC’), and Sections 181 and 187 of the Motor Vehicles Act (hereinafter referred to as ‘the M.V. Act’) and sentenced him, as under:-

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(i) For the offence punishable under Section 279 IPC, the petitioner has been sentenced to undergo simple imprisonment for a period of four months and to pay a fine of 500/-. In ₹ default of payment of fine, he has been directed to further undergo simple imprisonment for a period of ten days;

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(ii) For the offence punishable under Section 337 IPC, the petitioner has been sentenced to undergo simple imprisonment for a period of three months;

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(iii) For the offence punishable under Section 181 of M.V. Act, the petitioner has been sentenced to pay a fine of 500/-. In default ₹ of payment of fine, he has been directed to undergo simple imprisonment for a period of five days; and

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(iv) For the offence punishable under Section 187 M.V.Act, the petitioner has been sentenced to pay a fine of 500/-. In default of ₹ payment of fine, he has been directed to undergo simple imprisonment for a period of five days.

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The learned trial Court has directed the sentences, so awarded, to run concurrently.

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Today, the convict, vide his separate statement, has stated that he does not want to press the present petition, against the judgment of conviction, dated 12^th February, 2009, however, he has prayed that he may kindly be released on probation, by modifying the order of sentence dated 13^th February, 2009. He has also deposed that he is the sole bread earner of his family, comprising his wife, daughter and his aged father, who is a senior citizen and suffering from various age related ailments.

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The judgment of conviction, dated 12^th

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February, 2009 and the order of sentence, dated 13^th February, 2009, passed by the learned trial Court, perused.

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As per the said order, the learned trial Court, has not considered the question of releasing the convict on probation. The learned Appellate Court has also not considered this question.

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In this case, the report of the Probation Officer has been called for. In the report, the Probation Officer has recommended to extend the benefit of probation to the convict, vide his report, dated 21^st October, 2025.

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Now, the question, which arises for

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determination, before this Court, is about the fact as to whether the relief of probation can be extended to the convict.

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The Hon’ble Supreme Court, in Dalbir Singh versus State of Haryana , (2000) 5 Supreme Court Cases 82 ,, has categorically excluded Section 304-A IPC. Relevant paragraphs-13 and 14 of the judgment, are reproduced, as under:

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“13. Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the P.O. Act. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance think that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensues he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the court. He must always keep in his mind the fear psyche that if he is convicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the courts can play, particularly at the level of trial courts, for lessening the high rate of motor accidents due to callous driving of automobiles.

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Thus, bestowing our serious consideration on the arguments addressed by the learned counsel for the appellant we express our inability to lean to the benevolent provision to Section 4 of the P.O. Act. The appeal is accordingly dismissed.”

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Even, in the said judgment, the Hon’ble

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Supreme Court has held that the power of the Court to

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extend the benefit of probation, depends upon the nature of offence committed. In this regard, relevant paragraphs-

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8 to 10, of the judgment, are reproduced, as under:

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“8. Parliament made it clear that only if the court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is “the nature of the offence.”

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Thus Parliament has left it to the court to decide when and how the court should form such opinion. It provided sufficient indication that releasing the convicted person on probation of good conduct must appear to the court to be expedient. The word “expedient” had been thoughtfully employed by the Parliament in the section so as to mean it as “apt and suitable to the end in view”. In Black’s Law Dictionary the word expedient is defined as “suitable and appropriate for accomplishment of a specified object” besides the other meaning referred to earlier. In State of Gujarat v. Jamnadas G. Pabri , AIR (1974) SC 2233, a three Judge Bench of this Court has considered the word “expedient”. Learned Judges have observed in paragraph 21 thus: (SCC p. 145)

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“Again, the word ‘expedient’ used in this provisions, has several shades of meaning. In one dictionary sense, ‘expedient’ (adj.) means ‘apt and suitable to the end in view’, ‘practical and efficient’; ‘politic’; ‘profitable’; ‘advisable’, ‘fit, proper and suitable to the circumstances of the case’. In another shade, it means a device ‘characterized by mere utility rather than principle conducive to special advantage rather than to what is universally right’ (see Webster’s New International Dictionary).”

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It was then held that the court must construe the said word in keeping with the context and object of the provision in its widest amplitude. Here the word “expedient” is used in Section 4 of the P.O. Act in the context of casting a duty on the court to take into account “the circumstances of the case including the nature of the offence......…”. This means Section 4 can be resorted to when the court considers the circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct.”

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The decision of the Hon’ble Supreme Court, in

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Dalbir Singh’s case (supra), has again been considered by

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the Hon’ble Supreme Court, in State through Central

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Bureau of Investigation, Anti Corruption Branch, Chandigarh versus Sanjiv Bhalla and another, reported

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in (2015) 13 Supreme Court Cases 444 . Relevant paragraph-28, of the judgment, is reproduced, as under:

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“28. To sum up:

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28.1. For awarding a just sentence, the trial Judge must consider the provisions of the Probation of Offenders Act and the provisions on probation in the Criminal Procedure Code;

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28.2 When it is not possible to release a convict on probation, the trial Judge must record his or her reasons;

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28.3. The grant of compensation to the victim of a crime is equally a part of just sentencing;

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28.4. When it is not possible to grant compensation to the victim of a crime, the trial Judge must record his or her reasons; and

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28.5. The Trial Judge must always be alive to alternative methods of a mutually satisfactory disposition of a case.”

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The Hon’ble Supreme Court, in Paul George

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versus State of NCT of Delhi, reported in (2008) 4

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Supreme Court Cases 185, has released a person, who has been convicted, under Sections 279 and 304-A IPC. It would be profitable to reproduce relevant paragraph-12 of the said judgment, as under:

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“12. This litigation has been going on for the last 20 years and has been fought tenaciously through various courts, we are also told that the appellant who has had a good career throughout but for this one aberration has since been dismissed from service on account of his conviction. We, therefore, while dismissing the appeal, feel that the ends of justice would be met if we direct that the appellant be released on probation under Section 4 of the Probation of Offenders Act, 1958 on conditions to be imposed by the trial court. The appeal is disposed of in the above terms.”

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This Court, in cases, titled as Ram Rattan

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versus State of Himachal Pradesh, reported in 1989 (1)

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Sim.L.C. 359, and State of H.P. versus Khushal Singh &

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Anr., reported in 1997 (2) Cur. L.J. (HP) 235, has

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released the persons, on probation, who had been convicted under Sections 279 and 304-A IPC.

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Similarly, in Criminal Revision No. 151 of 2011, titled as Nand Kishore versus State of Himachal

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Pradesh, decided on 4^th October, 2016, this Court has released a person, who was convicted, for the offences, punishable under Sections 279 and 337 IPC.

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In view of the decisions, as referred to above, there is no legal hesitation for this Court to extend the benefit of probation, under Section 4 of the Probation of Offender’s Act, to the convict.

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The report of the Probation Officer perused.

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The Probation Officer has specifically mentioned

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that the the convict is not a habitual offender of law and he bears a good moral good moral character. No other case is found to have been registered against him.

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The offences, for which, the convict has been convicted, are not punishable with death or imprisonment for life. The convict is having the permanent abode in

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District Mandi, as per the report of the Probation Officer.

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The convict has already faced the agony of the trial, including the pendency of the appeal, as well as, the revision petition, for the last nineteen years.

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Our Criminal Jurisprudence System is reformatory in nature. With the passage of time, it has been realized that sending the first offender to jail, to undergo substantive sentence, does not produce good results, as, the first offender/convict, sometimes, may come in contact with the hardened criminals.

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The probation is a kind of non-custodial sentence, by giving an opportunity to the convict to reform himself, while abiding by certain conditions, imposed by the Court, for a certain period. It is a reformatory measure to achieve the object, by giving an opportunity to the convict, to reform himself, instead of directing him to undergo substantive sentence.

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The convict is the first offender and the sole bread earner of his family. Rejecting the prayer of the convict to release him on probation, would amount to

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punishing his family members, for the offences, committed by the convict.

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Considering the nature of the offences, this Court is of the view that it would be expedient to release the convict on probation of good conduct, instead of directing him to undergo substantive sentence, as imposed by the learned trial Court.

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Considering all these facts, the revision petition of the convict is dismissed against the judgment of conviction, however, in view of the discussions made above, the order of sentence is ordered to be modified. Instead of directing the convict to undergo the substantive sentence, he is directed to be released on probation of good conduct, on his furnishing personal bond in the sum of ₹ 50,000/-, with one surety of the like amount, to the satisfaction of the learned trial Court, to keep peace and be of good behaviour, for a period of two years and to receive the substantive sentence, as and when, called upon to do so, during the period of two years.

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The convict is also directed to deposit a sum of

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₹ 20,000/-, which shall be in addition to the fine amount,

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already deposited by him, in this case, with the learned trial Court, within a period of one month from today. The said amount of 20,000/- shall be paid to the injured, as₹ compensation, by the learned trial Court, after issuing notices to her, in this regard.

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It is clarified that in case of violation of any of the conditions, so imposed, including the terms and conditions of the requisite bonds, the order of sentence shall revive automatically, without reference to this Court. In that eventuality, the convict is directed to surrender before the learned trial Court, to undergo the substantive sentence.

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In view of the above, the revision petition is partly allowed. Pending miscellaneous applications, if any, are also disposed of accordingly.

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( Virender Singh ) Judge

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November 07, 2025 ( ps )

Gagan Kumar v. State of Hp

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Gagan Kumar v. State of Hp

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