Jagshir Singh v. Mr. Mehardeep Singh, Deputy Advocate

reiterated as to what was stated in the FIR. His testimony has been further corroborated by PW.9 Gurmukh Singh. Mr. P.K. Ganga, Advocate, appearing for the petitioner, submits that in the present case, since PW.7 Jagdish Raj and PW.9 Gurmukh Singh were injured in the occurrence and both the Courts below have placed implicit reliance upon their testimonies, he will not be in a position to assail their testimonies. He further submits that in these circumstances, he will accept the conviction of petitioner but pray to this Court that taking into consideration the fact that the occurrence had taken place in the year 1995 and a period of about 15 years is going to elapse, the petitioner may be released on probation. It is submitted that Criminal Revision No. 338 of 2002 4 in the last about 15 years and even before registration of the present case, the petitioner has committed no offence. It is further submitted that the petitioner has undergone an actual sentence of two months and six days, out of one year's rigorous imprisonment awarded by the trial Court. Learned counsel has referred to the charge sheet which was drawn by the trial Court on 2.3.1995 and stated that at that time the age of petitioner was recorded as 27 years. He has further submitted that the petitioner is having a large family to support and in case he is sent behind the bars, not only he will lose his service but his family will also come to the vagaries. Learned counsel for the petitioner has relied upon a judgment rendered by Hon'ble the Apex Court in Paul George v. State of NCT Delhi (SC) 2008(2) Recent Criminal Reports 478 wherein the driver, who had caused the accident, was released on probation, taking into consideration the sufferance of the protracted trial as one of the mitigating circumstances. The following portion of the aforesaid judgment is required to be noticed: “9. 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 Criminal Revision No. 338 of 2002 5 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”. Learned counsel further submits that the petitioner, who is an employee of Haryana Government, has committed no offence in his whole life. This Court tends to rely upon the observations of the Hon'ble Apex Court in Paul George's case (supra). He further relied upon another judgment rendered by this Court in Tejwinder Singh v. State of Punjab 2009(5) Recent Criminal Cases 526, wherein it was held as under:-

7. I have given a thoughtful consideration to this submission. He has placed reliance upon the judgments. Ram Pal v. State of Punjab, 2006(1) Recent Criminal Reports (Criminal) 784, Santokh Singh v. State of Punjab, 2006(1) Recent Criminal Reports (Criminal) 834, Chuni Lal v. State of Haryana, 2006(1) Recent Criminal Reports (Criminal) 844, and Roshan Lal v. State of Punjab, 2006(1) Recent Criminal Reports (Criminal) 795. As transpires from the record, the accident took place way back in 1998. The petitioner has been facing the agony of trial for the past more than ten years. He is a first offender. He was admitted to bail by this Court on 24.10.2002. He is on bail for the last more than decade. Criminal Revision No. 338 of 2002 6

8. In re: Chuni Lal (supra), this Court was pleased to observe that the accused may be released on probation in a case under Sections 279, 304-A, 337 IPC on the following grounds:- (i) Having remained on bail for a sufficiently long period, (ii) Accused not a previous convict and did not indulge in any criminal activity during the post conviction period, (iii) Faced agony of trial for a considerable long period, and (iv) being the sole bread earner.

9. In re: Roshan Lal (supra), which was also the case under Section 304-A of IPC, the occurrence was 17 years old and the accused was released on probation by this Court. Further in re: Santokh Singh (supra), which was also a case under Section 304-A of IPC, the incident was 17 years old and the accused remained in custody for 15 days. He was also ordered to be released on probation by this Court. In re: Ram Pal (Supra), which was also a case under Section 304-A of IPC, this incident was 16 years old and the accused had remained on bail for more than 13 years and was a first convict., He was also ordered to be released on probation by this Court. Criminal Revision No. 338 of 2002 7

10. Having back to the facts of the current case, there is nothing on the record to show that the accused-petitioner misused the concession of bail. As is borne out from the record, he remained in custody for a period of one and a half month.

11. As submitted by the learned counsel for the petitioner, if the petitioner, who is the sole bread- winner of his family is sent to the prison to undergo actual sentence of imprisonment, it will ruin the entire family. The next kins of the deceased Gurjant @ Janti can still be compensated.

13. Section 12 of the Probation of Offenders Act, 1958 reads in the following terms: “12. Removal disqualification attaching to conviction. - Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any attaching to a conviction of an offence under such law: Provided that nothing in this section shall apply to a person who, after his release under section 4 is subsequently sentenced for the original offence”.

14. The word “disqualification” used in Section 12 ibid is stated to mean “making someone (sic- Criminal Revision No. 338 of 2002 8 unfit) enough for something” and hence disqualification attaching to revision petitioner's conviction cannot be made the basis of his dismissal from service.

15. In re: Iqbal Singh v. Inspector General of Police and others, AIR 1970 Delhi 240, their lordships have observed as under:- “16. Section 12 of the Act uses the word “disqualification” and the meaning given to this word in Webster's Third New International Dictionary is: “(i) the act of disqualifying or the state of being disqualified” (protesting his disqualification from office under the new law); (ii) “something that disqualifies or incapacitates” (A crime conviction is automatically a disqualification for that public office).” The word “disqualify” is also stated to mean – making someone unfit for something. The further meaning given is or that the person may be deprived within the meaning of the word “disqualify” of any right or privilege. We are of the view that the words “disqualification, if any, attaching to a conviction of an offence” as used in Section 12 of the Act would Criminal Revision No. 338 of 2002 9 include a person's losing his right or qualification to remain or to be retained in service. Section 12 of the Act, clearly saves the convict from suffering such disqualification attaching to his conviction. In respect of his conviction, the petitioner had the protection of Section 12 and he was saved from suffering any disqualification such as the one which resulted in his dismissal”. In view of the above observations, petitioner's having been released on probation of good conduct, his conviction shall not be a hurdle in his way to get the retiral benefits or other service benefits. Order accordingly”. Further reliance has been placed upon the judgments rendered in Santokh Singh v. State of Punjab 2006(1) Recent Criminal Reports 834, Ram Pal v. State of Punjab 2006(1) Recent Criminal Reports 784, Manohar Lal v. State of Punjab 2004(1) Recent Criminal Reports 656, Roshan Lal v. State of Punjab 2006(1) Recent Criminal Reports 795, Chuni Lal v. State of Haryana and Balbir Singh v. State of Haryana 2004(3) Recent Criminal Reports 310 to say that this Court has been consistently releasing the similarly placed accused on probation. I find no reason to differ from the view propounded by various Single Benches of this Court. Keeping in view the ratio of law laid down in the aforementioned judgments, the conviction of the petitioner, recorded by Criminal Revision No. 338 of 2002 10 both the Courts below, is upheld. However, the petitioner is ordered to be released on probation for a period of one year under Section 4(1) of the Probation of Offenders Act, 1958, on his furnishing personal bond and one surety bond to the satisfaction of the trial Court. During the period of probation, he will keep the peace and be of a good behaviour. Otherwise, he will come and receive sentence as and when required by the Court. He shall also deposit Rs.35,000/- as compensation in the trial Court, within a period of three months from the date of receipt of a certified copy of this order. The amount, so deposited, shall be disbursed to the next kin of deceased Ashok Kumar son of Hans Raj. The trial Court shall call upon the petitioner to furnish probation bond and deposit the amount of compensation. In case, the petitioner fails to do so, benefit of probation shall not accrue to him. With the observations made above, the present petition is disposed of. May 5, 2010 “DK” (Kanwaljit Singh Ahluwalia) Judge