The
appellant in this appeal was convicted for an offence punishable under Sections
279 and 304-A of the Indian Penal Code for causing the death of a seven year
old girl on account of his rash and negligent driving of his
tractor. The appeal from the said order and conviction and sentence having been
dismissed by the learned Sessions Judge, the appellant moved in revision before
the High Court. In revision, the Karnataka High Court, while confirming the
conviction, set aside the sentence in respect of the offence
punishable under Section 279 of100
the Indian Penal Code but maintained the conviction and sentence in respect of
the offence under Section 304-A120
/// of the Indian Penal Code, whereby the appellant was sentenced to
undergo simple imprisonment for six months and to pay a fine of Rs. 2,000/-,
and in default of such payment, to undergo further simple imprisonment for
three months and also to pay a fine of Rs.600/- for the offence punishable
under Section 279 of the Indian Penal Code, and in default of such payment, to
undergo simple imprisonment for a month. In this appeal, the200 appellant
has challenged the order of conviction and sentence passed by the Additional
Civil Judge (Jr. Division) and Judicial Magistrate and the subsequent
orders passed by the Sessions Court and the High Court maintaining the
conviction under Sections 279240
/// and 304-A and the sentence in respect of the conviction under
Section 304-A of the Indian Penal Code.
During
the hearing of this appeal at the admission stage, the learned counsel for
the appellant informed the Court that the matter had been settled between
the parties and a compromise petition had been executed300 between the appellant and the complainant.
On such submission, the complainant was impleaded as a party to the
present proceedings and the short point, which ultimately arose during
the hearing, is whether the offence under Section 304-A could at all be compounded
since the same is not covered by the provisions of Section 320 of the360 /// Indian Penal Code.
The
aforesaid question has troubled this Court on different occasions, not only in
connection with compounding of offences punishable under the criminal
justice system, but also in respect of civil matters, and in respect of matrimonial
matters400 in particular,
where the Court had to strike a balance between the rigidity of the law
and doing substantial justice to the parties. In order to meet certain unusual
situations, this Court has from time to time taken recourse to
innovations and the powers vested in it under Article 142 of the Constitution,
in order to give a quietus to a litigation demanding. a pragmatic
solution. It has also been consistently held by this Court
that when an480 /// offence
did not come within the ambit of Section 320 of Criminal Procedure
Code but the proceedings taken on500
the basis thereof deserved to be terminated. A sentence could
always be reduced while maintaining the conviction and in most cases
the sentence was reduced to the period of the sentence already undergone. In
other cases, where circumstances so warranted, even the sentence was
altered, which at times brought the proceedings within the scope of Section 320
of Criminal Procedure Code and the offence was allowed to be compounded.
Such
being the position and in the absence of any allegation of the misrepresentation
or fraud made by the appellant, the appellant cannot be permitted to raise
the allegation of600 ///
misrepresentation or fraud for the first time in this Court.
Moreover, for the sake of argument, even if we consider that the respondent
had fraudulently entered another date of birth in his service book,
as had been alleged, it should have come to the notice of the authorities
during his course of service, and not after he had attained the age of superannuation
after the expiry of the date mentioned in the service book which was based on
the affidavit of the respondent.
To
the contrary, none of the officials responsible had noticed this during his service
period, even700 during his
time of promotions when the service book was required to be inspected by the
officials. Therefore, it clearly720
/// points out to the gross negligence and lapses on the part of
the authorities concerned and, in our view, the respondent cannot be
held responsible to work beyond his date of birth as mentioned in the matriculation
certificate when admittedly in the service book after affidavit, some other
date of birth was also evident. In view of the aforesaid circumstances,
the appellant ought to have deleted the date of birth entered in the service
book of the respondent on the800 basis
of his affidavit as the appellant had already accepted the date of birth of the
respondent on the basis of his matriculation certificate, which was also
produced by the respondent. The appellant alleged that the respondent had
entered a840 /// second
date of birth in his service book at a later period of time. The
respondent vehemently negated this contention stating that two dates of
birth were entered simultaneously in his service book by the department
officials. It is not needed for this Court to verify the veracity of the
statements made by the parties. lf at all the respondent900 entered the second date of birth at a
subsequent period of time, the authorities concerned should have detected it
and there should have been a detailed enquiry to determine whether the
respondent was responsible for the same. It has been held in a
catena of judicial pronouncements that even if by mistake, higher pay
scale was given to the employee,960 ///
without there being misrepresentation or fraud, no recovery can be effected
from the retiral dues in the monetary benefit available to the employee. This
Court in the case of Kailash Singh vs. The State of Bihar and Ors., held
that1000 recovery sought to be
made from the salary of the employees on the ground of alleged overstay in
service on the basis of age assessed or considered despite the fact that
the employee has worked during the period of alleged overstay, could
not be made.1046
