High Court Cannot U/S 482 CrPC Release Convict On Probation When His Appeal Is Pending Before Sessions Court: Punjab & Haryana High Court

The Punjab and Haryana High Court has held that the High Court cannot consider releasing on probation a person convicted under Section 304-A IPC for causing death by negligence, when his appeal is pending before the Sessions Court.

A division bench of Justice Sureshwar Thakur and Justice Sudeepti Sharma said since alternate remedy was available, the convict cannot directly approach the High Court.

“Therefore, the restriction embodied in Section 482 of the Cr.P.C., qua the jurisdiction invested thereunders in the High Court, becoming not employed, rather when there is an alternative remedy, thus comes to the fore. Resultantly, the relief asked for in the instant petition cannot be favourably endowed to the petitioner.”

It clarified that the power of the High Court under Section 482 of CrPC is to be exercised only when no alternative remedy is available.

In the present case, the matter pertained to a motor vehicle accident case in which a man was killed by the driver of an Alto car in 2013. He was convicted by trial court under Section 304-A of Indian Penal Code, leading to an appeal before the Sessions Court.

After the matter was compromised between the convict and legal heirs of the deceased, the convict moved the High Court for quashing of the FIR as well as setting aside of the conviction.

However, before deciding the plea, a Single Judge made the following reference for decision of a larger bench,

“Can this Court, especially in view of the ratio of the judgment of the Division Bench in Baldev Singh's case (supra), in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, 1973, release a convict on probation of good conduct for any term of his imprisonment, even where the matter has been 'compromised' by the convict with the legal heirs of the deceased, where the convict has been convicted for the commission of an offence punishable under Section 304-A of the IPC and sentenced to any term of imprisonment, when his appeal is still pending before the appellate Court?”

Answering the reference, the Court said convict cannot claim that he be released on probation when the appeal is still sub judice before the Sessions Court in Sangrur.

“For the reasons to be assigned hereinafter, this Court is of the clear view that, the plenitude of jurisdiction invested in this Court, through the provisions embodied in Section 482 of the Cr.P.C., does not yet leverage in the convict/petitioner to claim that, he be released on probation of good conduct, especially when an appeal against his conviction and sentence (supra) is yet subjudice before the learned Sessions Court, Sangrur. Moreover, for the further reasons to be assigned hereinafter, this Court rather does not become coaxed to, in terms of the compromise arrived at between the concerned, thus answer the above extracted reference in favour of the petitioner,” it said.

The Court rejected the argument that since the matter has been compromised, the High Court can entertain the plea for probation under its plenary jurisdiction even when the appeal is pending.

The Court reasoned that even for passing such an order, a report from probation officer is required which can be requisitioned only by the Sessions Court.

“Moreover, since the peremptory requirement for the passing of an order, for thus releasing the offender on probation of good conduct, but post the verdict of conviction becoming passed upon him, becomes hinged upon the report of the probation officer, besides when the said report is to be requisitioned only by the competent adjudicatory authority, which is but the court of learned Sessions Judge, Sangrur. Moreover, when an objective application of mind is to be made only by the said adjudicatory authority, therebys too, this Court does not deem it fit and appropriate to truncate or snatch the jurisdiction of the learned Sessions Judge, Sangrur.”

The criminal appeal is a continuation of the trial, the Court added.

It also observed that after his conviction, the convict should have made a submission for release on probation before the trial court.

However, the Court added that the present petitioner can still raise the plea before the Sessions Court.

“Now, irrespective qua the said plea becoming waived, and, therebys the convict/petitioner becoming estopped to claim the benefit of the relevant statutory provisions embodied in the Probation Act, or, the benefit of the relevant statutory provisions engrafted in the Cr.P.C., rather on invocation of the principle of estoppel arising from waiver and abandonment (supra), yet the said estoppel is not required to be attracted against the present petitioner, as, therebys it would work extreme hardship to the convict/petitioner.”

In the light of the above, the Court answered the reference in following terms,

“Since in the subjudice appeal (supra), the apposite espousal can be canvassed, therebys the availability of espousal of the extant plea, before the learned Sessions Court, Sangrur, but coaxes this Court to conclude that, the said constitutes a yet available recoursable remedy to the convict/petitioner, wherebys the residuary jurisdiction invested in this Court under Section 482 of the Cr.P.C., thus cannot be exercised at this stage.”

Mr. A.P.S. Deol, Sr. Advocate with Mr. Karan Kalia, Advocate and Mr. Vishal R. Lamba, Advocate for the petitioner.

Mr. Ankur Mittal, Addl. A.G., Haryana with Mr. P.P. Chahar, Sr. D.A.G., Haryana.

Mr. Sartaj Singh Gill, Sr. D.A.G., Punjab.

Mr. Tarundeep Kumar, Advocate for the respondents No.2 to 5.

Title: LAKHVIR SINGH v. STATE OF PUNJAB AND OTHERS

Citation: 2024 LiveLaw (PH) 277

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