Pratap Hamron v. The State

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] *** CRR/26/2023 Pratap Hamron Vs The State Mr. Gopala Binnu Kumar Ms. Vinita Devi ... for the revisionist Mr.Sumit Karmakar ... for the State April 10, 2025 [AKB] Item No. 2

1. At the very outset of the hearing learned Counsel for the revisionist Mr. Gopala Binnu Kumar has submitted that he has nothing to say about the conviction order. He has submitted that at the time of sentencing the convict, the learned Trial Judge had not considered the family background, the status and social factors attached with the convict and the learned Trial Judge proceeded to sentence the convict on other consideration. According to Mr. Kumar, at the time of sentencing a convict, particularly when he is a first time offender, the learned Trial Court should consider the provisions under Section 4 of the Probation of Offenders Act, and release the first time offender on certain conditions.

2. In this regard he has referred the several case laws. In (1981) 1 SCC 447 (Ved Prakash vs the State of Haryana) Hon'ble Justice V.R.Krishna Iyear was pleased to observe in his

inimitable style that "we must emphasis that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial Court should have collected materials necessary to help award a just punishment in the circumstances. The social background and the personal factors of the crime-doer are very relevant although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if Section 360, Cr.P.C is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant."

3. The learned counsel has also cited decisions reported in (1997) 7 SCC 756 (State of Haryana vs Prem Chand), (1999) 5 SCC 732 (State of Karnataka vs. Muddappa) and also an unreported decision of Hon'ble High Court at Bombay in connection with Criminal Revision Application No. 376 of 2019 pronounced on July 15, 2024 in support of his contention that there was enough scope for the learned Chief Judicial Magistrate to release the convict/petitioner under the provisions of Probation of Offenders Act, 1958 after taking into consideration the family background, social status, the number of children, financial condition etc of the

convict. The sentencing process of the learned Chief Judicial Magistrate did not show that he had taken all these considerations before sentencing the petitioner.

4. The learned counsel for the state has opposed the submission of the learned counsel of the petitioner. According to him whether a convict can be released on executing bonds under Probation of Offenders Act is a matter of discretion of the court which passes the sentence. It is not at all an obligation upon the court to release the first time offender on the basis of provisions of Probation of Offenders Act. However, according to his submission, learned Chief Judicial Magistrate considered the provisions of Section 360 Cr.P.C and had given detailed reasons as to why he was not enlarging or he was not suspending the sentence of the petitioner under the provisions of Probation of Offenders Act.

5. The learned counsel for the state has also pointed out that at the time of sentencing, the court has also considered the nature of offence and also the issue whether a careful driving on the part of the convict could have saved the life of the victim. Had he not been negligent and careless in driving the vehicle, the victim girl could have been saved. All these factors swayed the learned Chief Judicial Magistrate to think

that it would not be appropriate and proper for releasing the petitioner under the provisions of Probation of Offenders Act.

6. After considering the submission and counter submission of the parties and also taking into account the judgement it appears that one Sangita Biswas a girl child of tender age died due to rash and negligent driving on the part of the convict as a driver of the said vehicle.

7. I have also taken into consideration that at the time of passing the sentence the learned Trial Court has considered the provisions of Section 360 read with Section 4 of the Probation of Offenders Act, 1958 and further it reveals that the learned Trial judge has recorded his reasoning in the following manner.

"The facts and circumstances of the case show a substantial degree of depravity on the part of the convicted person. It is not a case where the offence took place on some provocation or at the heat of the moment. It was voluntarily committed by the convict. The convict was driving the bus in a rash and negligent manner at high speed knowing fully the fact that he was carrying passengers in the same whose lives and safety were in his hand. The passengers in the said bus had a right to be safely taken home and it was the moral duty and/or obligation of the accused person to drive the bus safely and drop the passengers to their destination with safety. The passengers had not boarded the bus to risk their lives by either dying or sustaining injuries. Such breach of duty by the convict would attract criminal punishment.

Despite such moral duty and obligation, the convict breached the same by rashly and negligently driving the said bus on 20.01.14 at high speed resulting in accident of the bus and thereby causing the death of one of the passengers namely Sangeeta Biswas and causing of simple and grievous injuries to the other passengers. It goes on to show that the convict is not afraid of the law of the land.

quite advanced and matured age. Moreover, dealing with the convict too lightly, would send a wrong signal to the society at large, and would rather give the confidence to the wrongdoers that they can do any wrongful act and escape with light punishment. As such, I do not find it to be a fit case where the provisions of sections 360 and/or 361 of the Code of Criminal Procedure, 1973 r/w section 4 of the of Offenders Act should be made applicable."

8. From the above observation it is found that learned Trial Court did not consider the family background, the financial position or the number of members of his family in the said judgement. In other words no efforts were taken from the side of the learned Chief Judicial Magistrate to record whether the convict is a first time offender or not. Learned Chief Judicial Magistrate has only considered the way of driving of the offending vehicle at the time of incident on the part of the convict. In my view, the learned Chief Judicial Magistrate has to consider all aspects of the matter including the manner by which the offence was committed and also the social factors which might have mitigating effects in sentencing the convict.

9. I find that the sentencing process adopted by the learned Chief Judicial Magistrate is not in accordance with the desire of the Hon'ble Supreme Court as laid down the above case laws.

10.

In State of Haryana vs Prem Chand (supra) it has been laid down that a convict aged about 21 years of age under Section 376/511 of IPC should be allowed to avail the benefit of provisions under Section 4 of the Probation of Offenders Act.

11.

In State of Karnataka vs. Muddappa (supra) a convict under Section 304 (ii) IPC was allowed to be released on probation by applying the provisions of Section 4 of the Probation of Offenders Act.

12.

In the unreported case of Hon'ble Bombay High court it was discussed that there was no absolute bar in extending the benefit of Section 4 of the Probation of Offenders Act to convict, even if he were held guilty for the offence punishable under Section 304 A of the IPC. However, the Hon'ble Supreme Court has laid down the specific guidelines for sentencing the accused even in a sensitive case. 13.

I must say at the cost of repetition that the judicial decision which laid down the principle in Ved Prakash vs the State of Haryana (supra) still holds good. The Court must take into consideration the status, the position of members of family and other social factors or background of the convict before sentencing him.

14.

The learned Trial Court has to record that he considers all the above factors before passing the sentence. I am not saying that after considering such factors, as stated above, the Court cannot refuse to release the offender on Probation of Offenders Act. What I want to say that the judgement must show that the learned court has considered the relevant factors and has held that there are certain reasons for which the court is not considering the convict to be released on probation under the provisions of under Section 4 of the Probation of Offenders Act.

15.

In view of the above though the conviction of the petitioner is hereby upheld but the sentence upon the convict being found unsatisfactorily imposed upon him is hereby set aside.

16.

The learned Chief Judicial Magistrate, Mayabunder is requested to rehear the convict once again regarding quantum of sentence and also on the provisions of Probation of Offenders Act and to pass a fresh order of sentence after taking into consideration all the relevant factors as mentioned herein above.

17.

Accordingly the present criminal revisional application is allowed in part on contest. The conviction order of the petitioner namely Pratap Hamron in connection with GR Case No. 26 of 2014 of the learned Chief Judicial Magistrate, Mayabunder is hereby affirmed. However, the order of sentence is hereby set aside with a direction upon the learned Chief Judicial Magistrate, Mayabunder to hear the petitioner/convict afresh on the point of sentence and also on the provisions of Probation of Offenders Act, 1958 and to pass an order of sentence upon the convict within three months from the date and the petitioner/convict is directed to appear before the Trial Court as and when he is called upon by the learned Court.

18.

A copy of order of this criminal revisional application along with Trial Court Record be sent back to the learned Court of Chief Judicial Magistrate, Mayabunder immediately with a request to issue notice upon the convict at an early date.

19.

The revisional application being CRR/26/2023 is allowed on contest. No costs.

20.

The Trial Court Records be returned to the court concerned.

21.

Urgent Photostat certified copy of this order if applied for, the same be supplied to the parties upon compliance of necessary formalities.

(Apurba Sinha Ray, J.)