Phool Sahai & Others vs State Of U.P.
2014 Latest Caselaw 5103 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Court No. - 14
 

 
Case :- CRIMINAL REVISION No. - 1737 of 1990
 

 
Revisionist :- Phool Sahai & Others
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- Laxmi Narain Shanhwar
 
Counsel for Opposite Party :- A.G.A.
 

 
Hon'ble Mrs. Ranjana Pandya, J.

1. This revision has been preferred against the judgment and order dated 15.09.1990 passed by the IIIrd Additional Sessions Judge, Kanpur Nagar in Criminal Appeal No. 90 of 1988 confirming the judgment and order passed in Criminal Case No. 264 of 1988 by the Court of Maha Nagar Magistrate, Shisha, Mau, Kanpur on 05.10.1988 convicting and sentencing all the revisionists for six months' rigorous imprisonment under section 324/34, three months' rigorous imprisonment under section 323 IPC and one month's rigorous imprisonment under section 506 IPC.

2. Brief facts of the case are that the prosecution case is that on 17.03.2987 at about 7.15 p.m. the complainant Sarnam filed a non-cognizable report at police station Panki, Kanpur Nagar against the accused-revisionists, in which he had said that he was going to the market to purchase his house-hold goods, the revisionists started saying that the complainant had put colour on the revisionists, he will be taught a lesson. Some persons got the matter compromised, but the revisionists started abusing him, when he was asked not to abuse him, the revisionists assaulted the complainant with fists and kicks and danda. When his father came, he was also assaulted by the revisionists with fists and kicks and threatened to kill them. Report was lodged and after investigation, charge sheet was submitted against the revisionists. The revisionists were charged under sections 323/34, 324/34, 504, 506 IPC. The revisionists pleaded not guilty and claimed to be tried.

3. The prosecution examined PW-1 Sarnam, PW-2 Mardan, PW-3 Nanbuddhi, PW-4 S.I., Ram Saran Pandey, PW-5 Dr. A.P. Bajpai, PW-6 Head Constable Afsar Hussain.

4. In the statement under section 313 Cr.P.C., the accused-revisionists said that they had been implicated due to enmity and they have not committed the offence. The learned Magistrate after perusing all the evidence on record, convicted the accused as has been mentioned above. Feeling aggrieved the accused persons preferred Criminal Appeal No. 90 of 1988, which was dismissed.

5. Feeling aggrieved the revisionists have preferred the present revision.

6. None was present on behalf of the revisionists even in the revised list. I have heard learned AGA for the State and perused the record.

7. It is settled principle of law that the revisional jurisdiction is not as wide as the appellate jurisdiction and under the revisional jurisdiction, the High Court is required to exercise its powers where there is material irregularity or manifest error of law or procedure, or there is misconception or misreading of evidence or where the court below has failed to exercise jurisdiction vested in it or has exercised the jurisdiction wrongly and perversely or where the facts admitted or proved do not discloses any offence.

8. As a broad proposition, the interference of revisional court may be justified in cases (i) where the decision is grossly erroneous (ii) where there is no compliance with the provision of law (iii) where the finding of fact affecting the decision is not based on evidence on record (iv) where the material evidence of parties has not been considered (v) where the court below has misread or mis-appreciated the evidence on record (vi) where the judicial discretion has been exercised arbitrarily or perversely.

9. In exercise of revisional jurisdiction the court may not exercise jurisdiction to reassess the evidence and reappraisal of evidence is not permissible within the revisional jurisdiction. Hon'ble the Apex Court in A.I.R. 1999 Supreme Court 981 in the case of State of Kerela Vs. Putthumana Illath Jathavedan Namboodiri has held that "the High Court while hearing revision does not work as an appellate court and will not re-appreciate the evidence, unless some glaring mistake is pointed out to show that injustice has been done".

10. In A.I.R. 2002 Supreme Court 2229 in the case of Jagannath Chaudhary Vs. Ramayan Singh, Hon'ble Apex Court has held that "revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error on point of law resulting in miscarriage of justice". Similarly In A.I.R. 2002 Supreme Court 107 in the case of Munni Devi Vs. State of Rajasthan and others it was held by Hon'ble Apex Court that "while exercising the revisional power the High Court has no authority to re-appreciate the evidence in the manner as the trial court and appellate courts are required to do".

11. In another case A.I.R. 1993 Supreme Court 1126 in the case of State of Karnataka Vs. Appa Balu Ingale and others it has been held by the Hon'ble Apex Court that "generally speaking, concurrent findings of fact arrived at by two courts below are not to be interfered with by the High Court in absence of any special circumstances or unless there is any perversity."

12. Considering the limited scope of revisional jurisdiction it is apparent that the evidence recorded by trial court and reappreciated by the appellate court is not required to be reappreciated again on the point raised by the learned counsel for the revisionist. The appellate court has given findings after detailed discussions and has found no substance in the arguments of accused-appellant. The findings of facts recorded by two courts below may not be interfered with in this revision.

13. The arguments advanced by the learned counsel for the revisionists are that there is no ground for conviction of the accused persons and if at all the courts below had grounds to convict the accused persons, no reasons were given by the courts below for not granting probation for the present revisionists, which is erroneous in law and is liable to be sustained.

14. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of 7 years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation of Offenders Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any rule for Probation Officers in assisting the courts in relation to supervision and other matters while Probation of Offenders Act does make such a provision. While Section 12 of the Probation of Offenders Act states that the persons found guilty of an offence and dealt with under Section 3 or 4 of the Probation of Offenders Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation of Offenders Act as applicable at the same time in a given area cannot be gathered from the provision of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force. The provisions of Section 360 of the Code are wholly inapplicable.

15. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Section 360, 361 of the Code in that area. Section 3 of the Probation of Offenders Act reads as follows:-

"3. Power of court to release certain offenders after admonition.- When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition.

Explanation.- For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4."

16. Thus, this was the bounden duty of the learned trial and also the appellate court to consider while they were granting the benefit of Probation of Offenders Act.

17. Section 4 of the Probation of Offenders Act reads as follows:

"4. Power of court to release certain offenders on probation of good conduct.--(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:

Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.

18. Protection of society and stamping out criminal proclivity must be the object of law, which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice should meet the challenges confronting the society. Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. As justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong.

19. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence.

20. As I have said earlier the occurrence relates to year 1987 and this revision is pending since 1990, I find no illegality, irregularity or impropriety in the conviction and I feel that the conviction should be maintained but the sentence may be modified.

21. The revision is partly allowed with the following modification.

22. The conviction of the revisionists is upheld.

23. The revisionists shall get the benefit of section 4 of the Probation of Offenders Act. Instead of sentencing them to six months' rigorous imprisonment under section 324/34 IPC, three months' rigorous imprisonment under section 323 IPC and one month's rigorous imprisonment under section 506 IPC, they shall file two bonds to the tune of Rs. 20,000/- coupled with personal bonds to the effect that they shall not commit any offence, shall be of good behaviour and shall maintain peace during the period of one year. If there is breach of any of the aforesaid conditions they will subject themselves to undergo sentence before the Magistrate as per rules. The bonds aforesaid be filed by the accused persons within two months from the date of the judgment.

24. Let a certified copy of this order be sent to the court concerned for compliance.

Dated: 27.08.2014

Sazia