Delhi High Court
Avdesh Kumar vs State Nct Of Delhi on 30 September, 2014
$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 30th SEPTEMBER, 2014
+ CRL.A. 648/2000
AVDESH KUMAR ..... Appellant
Through : Mr.Aman Lekhi, Sr.Advocate with
Mr.Saurabh Ajay Gupta &
Mr.Nishant Bishnoi, Advocates.
versus
STATE NCT OF DELHI ..... Respondent
Through : Mr.M.N.Dudeja, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.Garg, J. (Open Court)
CRL.M.A.No.10238/2014 (Delay in filing review petition) &
CRL.M.A.No.10239/2014 (Delay in re-filing review petition)
For the reasons mentioned in the applications for condonation of
delay in filing and re-filing of the review petition, the delay is condoned.
The applications for condonation of delay stand disposed of.
Review Petition No. 311/2014
1. The petitioner - Avdesh Kumar seeks review of judgment
and order dated 20.12.2013 passed by this Court in Crl.A.No.648/2000
whereby he was held guilty for committing offence punishable under
Section 395 IPC and was awarded RI for three years. Learned Senior
Counsel urged that mandatory provisions of the Probation of Offenders
Act, 1958 were not taken into consideration while awarding the sentence.
The petitioner was below 21 years of age on the day of incident and as per
Section 6 of the Probation of Offenders Act, considering his antecedents,
he could not have been awarded sentence to undergo 'imprisonment'.
Reliance has been placed on the authorities : 'Nar Singh Pal vs. Union of
India and others', 2000 (3) SCC 588; 'Masarullah vs. State of Tamil
Nadu', 1982 (3) SCC 458; 'Grindlays Bank Ltd. vs. Central Government
Industrial Tribunal and others', 1980 (Supp) SCC 420, and
'Kunhayammed and others vs. State of Kerala and another', (2006) 6
SCC 359.
2. Perusal of the file reveals that Bhulley Singh (A-1), Arun
Kumar @ Munna (A-2) and Vimal Chandra (A-5) were held guilty for
committing offence 395 read with Section 397 IPC and were awarded RI
for seven years each. Avdesh Kumar (the present petitioner) (A-3) and
Suresh Kumar (A-4) who were also found guilty under Section 395 IPC
were awarded RI for three years each. Suresh Kumar (A-4), in addition,
was convicted under Section 25 of the Arms Act.
3. Trial Court record reveals that the convicts A-1 to A-5
committed dacoity at House No. E-6, INA Colony where inmates Sujan
Kumar Saraswati and his wife Mala Saraswati were present with their
children there. They were robbed of their valuable articles. A-1, A-2 and
A-5 were armed with deadly weapons that time. It speaks volume of the
gravity of the offence.
4. It is relevant to note that the present petitioner had challenged
the judgment and order of this Court dated 20.12.2013 before the Hon'ble
Supreme Court. However, the SLP preferred by the petitioner was
dismissed. Apparently, the Supreme Court did not interfere in the order on
sentence.
5. Order dated 17.10.2000 on sentence passed by the learned
Trial Court reveals that provisions of Section 360 Cr.P.C. and Probation
of Offenders Act were taken into consideration at the time of awarding
sentence to the convicts. It was specifically noted by the Trial Court that
the petitioner was a young boy at the time of the commission of the
offence and was a practicing lawyer at the time of sentence. His father, a
retired Income Tax Officer, had enrolled himself as a lawyer. It was
further noted that the petitioner belonged to a respectable, educated
family. He had a small child to maintain after his marriage. However,
considering the gravity of the offence, the Trial Court awarded RI for
seven years to the petitioner.
6. This Court also while considering the alternative argument of
the petitioner to take lenient view took into consideration the mitigating
circumstances and altered/modified the substantive sentence from RI
seven years to RI three years.
7. Section 6 of the Probation of Offenders Act, 1958 rules out
the benefit of the provisions of the Act being given to a person who is
guilty of having committed an offence punishable with life or death.
Needless to say, Section 395 IPC for which the petitioner has been
convicted is punishable with 'Imprisonment for Life'. The offence
committed is serious in nature and it is not a fit case to release the
petitioner on probation.
8. Considering the facts and circumstances of the case and
dismissal of SLP preferred against the impugned judgment by the Hon'ble
Supreme Court, I find no sound reasons to review the judgment which has
been passed on merits.
9. The review petition is dismissed.
(S.P.GARG)
JUDGE
SEPTEMBER 30, 2014 / tr
