Naresh Kumar Etc. vs State
2013 Latest Caselaw 5424 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            RESERVED ON : 21st NOVEMBER, 2013
                            DECIDED ON : 25th NOVEMBER, 2013

+      CRL.A. 389/2003 & CRL.M.A.Nos. 1592/2003 & 7482/2004

       NARESH KUMAR ETC.                        ....Appellants
               Through : Mr.Chirag Madan, Advocate with
                         Mr.Sudeep Yadav, Advocate.

                                 versus

       STATE                                              ....Respondent
                     Through :   Mr.M.N.Dudeja, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Naresh Kumar (A-1) (since deceased) represented by

Smt.Kanta, Dharam Singh (A-2), Om Prakash (A-3), Ashok and Tripat

were arrested in case FIR No. 122/96 under Sections 308/34 IPC

registered at PS J.P.Kalan and sent for trial on the allegations that on

05.12.1996 at about 12.10 (Noon) in furtherance of common intention,

they inflicted injuries to Balwan Singh and Vijay Singh. Vide order dated

01.04.1999, they were charged under Sections 308/325/34 IPC. The

prosecution examined twelve witnesses to bring home their guilt. In their

313 statements, they pleaded false implication and examined DW-1

(Suresh Kumar) in defence. On appreciating the evidence and after

considering the rival contentions of the parties, the Trial Court, by the

impugned judgment dated 09.05.2003 in Sessions Case No. 166/02 held

them guilty under Section 325 IPC (A-1) and under Section 323 IPC (A-2

& A-3). It is relevant to note that Ashok and Tripat were acquitted of the

charges and the State did not challenge their acquittal. By an order dated

26.05.2003, A-1 to A-3 were released on probation and directed to pay

total compensation of ` 20,000/- to the victims. Being aggrieved, A-1 to

A-3 have preferred the appeal. It is apt to note that A-1 expired during the

pendency of the appeal and his legal heir - Smt.Kanta was permitted to

continue with the appeal vide order dated 05.04.2005.

2. During the course of arguments, learned counsel for the

appellants, on instructions, stated at Bar that the appellants have opted not

to challenge the findings of the Trial Court on conviction. He prayed to

direct the A-1's employer to release A-1's pension and relied on 'Rajbir

vs. State of Haryana', AIR 1985 SC 1278.

3. Since the appellants have given up challenge to the findings

of the Trial Court on conviction in the presence of overwhelming

evidence, the conviction under Section 325/323 IPC is affirmed. The

convicts were released on probation and were directed to pay

compensation of ` 20,000/- to the victims which has since been deposited

in the Court. Section 12 of the Probation of Offenders Act can be brought

to the notice of the concerned authorities for getting the required relief and

in case of non-compliance, deceased's legal heirs can avail legal remedies

available under law. The Court is not aware as to what disciplinary action

(if any) has been initiated by the concerned department against A-1 after

his arrest and conviction in the present proceedings or in any other

proceedings. Order-sheet dated 08.07.2003 records that A-1 was wanted

in a shooting incident and it is not clear if he faced criminal proceedings

in the said case or what was its outcome. In the absence of any cogent

material before this Court, no direction, as prayed for by the appellant, can

be given. In the case of 'Sushil Kumar Singhal vs. Regional Manager,

Punjab National Bank', (2010) 8 SCC 573, the Supreme Court held :

"9. The sole question involved in this case is whether the benefit granted to the appellant under the provisions of Act, 1958 makes him entitled to reinstatement in service. The issue involved herein is no more res integra. In „Aitha Chander Rao v. State of Andhra Pradesh‟, 1981 (Suppl.) SCC 17, this Court held :

As the appellant has been released on probation, this may not affect his service career in view of Section 12 of the Probation of offenders Act.

10. The said judgment in Aitha Chander Rao (Supra) was not approved by this Court in Harichand v. Director of School Education : (1998) 2 SCC 383, observing that due to the peculiar circumstances of the case, the benefit of the provisions of 1958 Act had been given to him and as in that case there had been no discussion on the words "disqualification, if any attaching to a conviction of an offence under such law", the said judgment cannot be treated as a binding precedent. This Court interpreted the provisions of Section 12 of the 1958, Act and held as under:

In our view, Section 12 of the probation of offenders Act would apply only in respect of a disqualification that goes with a conviction under law which provides for the offence and its punishment. That is the plain meaning of the words "disqualification, if any, attaching to a conviction of an offence under such law" therein. Where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not by reason of Section 12, suffers the disqualification. It cannot be held that by reason of Section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from government service.

        (Emphasis added)

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14. In 'State of U.P. v. Ranjit Singh', AIR 1999 SC 1201, this Court has held that the High Court, while deciding a criminal case and giving the benefit of the U.P. First Offenders Probation Act, 1958, or similar enactment, has no competence to issue any direction that the accused shall not suffer any civil consequences. The Court has held as under:

We also fail to understand, how the High Court, while deciding a criminal case, can direct that the accused must be deemed to have been in continuous service without

break, and, therefore, he should be paid his full pay and dearness allowance during the period of his suspension. This direction and observation is wholly without jurisdiction....

XXX XXX XXX

17. In view of the above, the law on the issue can be summarized to the effect that the conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceedings against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction. The word `Disqualification' contained in Section 12 of the Act, 1958 refers to a disqualification provided in other Statutes, as explained by this Court in the above referred cases, and the employee cannot claim a right to continue in service merely on the ground that he had been given the benefit of probation under the Act, 1958."

4. In the light of above discussion, the prayer asked for by the

appellants cannot be incorporated in the judgment. The appeal stands

dismissed. The compensation amount deposited in compliance of the

judgment be released to the victims. Pending applications also stand

disposed of.

(S.P.GARG) JUDGE NOVEMBER 25, 2013/tr