[Cites 29, Cited by 0]
Delhi High Court
State vs Sunil @ Pahalwan & Anr on 28 January, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 17.01.2026
Judgment pronounced on: 28.01.2026
+ CRL.A. 1290/2019 and CRL.M.A. 40214/2019
STATE .....Appellant
Through: Mr. Pradeep Gahalot, APP for the
State.
SI Himanshu P.S. Alipur
Versus
SUNIL @ PAHALWAN & ANR .....Respondents
Through: Mr. Abhishek, Mr. Krishan Kumar
and Mr. Sandeep, Advocates
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. This appeal under Section 377 of the Code of Criminal
Procedure, 1973 (the Cr.PC.), has been filed by the
respondent/State in SC No. 755/2017 on the file of the Additional
Sessions Judge/Special Judge (NDPS), North, Rohini Courts, New
Delhi, assailing the order on sentence dated 16.05.2019, as per
which the accused persons have been released on probation for
good conduct with an undertaking to maintain peace and good
behaviour for a period of one year and fine of ₹5,000/-.By the
impugned judgment dated 03.05.2019, accused no. 3 and 5(A3 and
A5), respondent nos. 1 and 2 herein, have been found guilty of the
offences punishable under Sections 365 and 395 of the Indian
Penal Code, 1908 (the IPC) and accused no. 5 has also been found
guilty of the offence punishable under Section 174A IPC. Vide the
order on sentence dated 16.05.2019, accused nos. 3 and 5 have
been directed to be released on probation of good conduct on
furnishing a bond for a sum of ₹10,000/- with an undertaking to
keep peace and be of good behaviour for a period of one year. The
prayer in this appeal is limited to the extent of seeking
enhancement of the punishment imposed vide order on sentence
dated 16.05.2019.
2. The prosecution case is that in the intervening night of
29/08/2017 and 30/08/2017 at about 11:45 pm, the accused
persons, five in number, abducted CW17 Yashish Arora at
gunpoint for ransom. Hence, the accused persons, as per the final
report/charge sheet are alleged to have committed the offences
punishable under Sections 364A, 394, 395, 397, 186, 353, 307,
332/34 IPC and Sections 25, 27 of the Arms Act, 1959 (the Arms
Act).
3. On the basis of Ext. PW2/1 FIS of PW2, given on
30.08.2017, Crime no. 368/17, Alipur Police Station, was
registered. CW32, Inspector, conducted the investigation and on
completion of the same submitted the final report dated
13.11.20217 alleging the commission of offences punishable under
the above mentioned Sections against A1, 2 and 3. Thereafter,
supplementary charge sheet dated 30.03.2018 was submitted
against A4 and 5, alleging commission of offences punishable
under Sections 364A, 394, 395, 397, 186, 353, 307,174A, 332 read
with Section 34 IPC and Sections 25 and 27 of the Arms Act.
4. When the accused persons were produced before the trial
court, all the copies of the prosecution records were furnished to
them as contemplated under Section 207 of the Cr.PC. After
hearing both sides, the trial court, as per order dated 20.04.2019,
framed charge under Sections 356and 395 IPC against A1 to A5;
charge under Sections 397 and 332 IPC against A1; charge under
Sections 25 and 27 of the Arms Act against A2; charge under
Sections 397 and 307 IPC along with Section 27 of the Arms Act
and Section 174A IPC against A4; charge under Sections 394,
186, 353 and 34 IPC against A1. A charge for the offence
punishable under Section 174A IPC was also framed against A5.
The charges were read over and explained to the accused persons,
to which A3 and 5 pleaded guilty of the offences punishable under
Sections 365 and 395 read with Section 34 IPC.
5. The trial court found the plea to be voluntary and, hence,
by way of the impugned judgment dated 03.05.2019, convicted A3
and A5 of the offences punishable under Sections 365, 395, read
with Section 34 IPC. Vide Order dated 03.05.2019, they have been
directed to be released on probation of good conduct on furnishing
bond for a sum of ₹10,000/- with an undertaking to keep peace and
be of good behaviour for a period of one year from today. In case
of breach of any such conditions, they would submit themselves to
receive sentence as per law. Aggrieved, the State has filed the
present appeal.
6. It was submitted by the learned Prosecutor for the
appellant/State that the trial court went wrong in applying the
provisions of the Probation of offenders Act,1958 (the PO Act)in a
case involving offence of dacoity, which is punishable with
imprisonment for life or with imprisonment for a term extending to
ten years.
7. Per Contra, it was submitted by the learned counsel for
accused A3 and A5 that a case of road rage has been falsely
converted into a case of abduction and dacoity. It was also
submitted that A3 and A5 have no criminal antecedents. They are
youngsters aged between 23 and 26 years old with family
responsibilities. After their release on probation, they have strictly
complied with all the conditions imposed by the trial court and
have not violated the probation order in any manner. It was also
submitted that A5 voluntarily surrendered before the Magistrate
concerned, fully cooperated with the investigation. No active role
has been attributed A 3 and A5. No recovery was effected from
them, and that they have already undergone substantial
incarceration. It was also submitted that the offences in question
do not carry mandatory sentence of death or life imprisonment and
therefore, probation was rightly granted. There is no infirmity
calling for interference by this court. In support of the argument,
reliance was placed on the dictum in State v. Lucky, 2017 SCC
OnLine Del 8328.
8. The only point that arises for consideration in this appeal
is whether the trial court was right in giving the benefit of Section
4 of the PO Act to A3 and A5, that is, respondents 2 and 3 herein.
9. Heard both sides and perused the records.
10. The power of the court to release certain offenders on
probation of good conduct is envisaged in Section 4 of the PO Act
which reads thus:-
"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."
(Emphasis supplied)
11. A perusal of the Section shows that the power of the
Court to release offenders on probation of good conduct is not to
be extended to persons who have committed an offence punishable
with death or imprisonment for life. In the case on hand, A3 and 5
have been convicted of the offences punishable under Sections
365, 395 read with Section 34 IPC. The offence of dacoity,
punishable under Section 395 IPC, provides for imprisonment for
life or with rigorous imprisonment for a term which may extend to
ten years, and fine. The phrase used in S.4 of the PO Act is "not
punishable with death or imprisonment for life". It cannot be read
conjunctively so as to mean that it provides an alternative sentence
for an offence. But it must be read disjunctively. In Jagdev Singh
v. State of Punjab, 1974 KHC 577: AIR 1973 SC 2427, the
Apex Court was called upon to consider whether the benefit of S.4
of the PO Act could be extended in a case involving S.326 IPC,
which offence is punishable with imprisonment for life or with
imprisonment of either description for a term which may extend to
10 yrs. This was answered in the negative, and it was held that
both Sections 4 and 6 of the PO Act clearly provide that the benefit
of the Sections will not be available to persons found guilty of an
offence punishable with imprisonment for life. The PO Act is
intended to carry out the object of keeping away from the
unhealthy atmosphere of jail life where normally one has to mix
with hardened criminals, those found guilty of the commission of
comparatively less serious offenses, by providing for dealing with
them more leniently, with a view to their reformation under S.3, 4
or 6 of the PO Act as the case may be. An offence punishable
under S.326 IPC is indisputably punishable with imprisonment for
life. The benefit of the Act on the plain language of S.4 and 6 is
thus not available in such cases. (See also Som Nath Puri v. State
of Rajasthan, 1972 KHC 414: AIR 1972 SC 1490 and State of
Gujarat v. V. A. Chauhan, 1983 KHC 570: AIR 1983 SC 359).
12. In Jugal Kishore Prasad v. State of Bihar, 1973 SCC
(Cri) 48: 1973 CriLJ 23, it has been held that it is wrong to
contend that the offence excluded from the purview of the Section
are only those offences wherein punishment prescribed is
imprisonment for life and not for a lesser term for the language
used in the section does not warrant such a view. The plain
meaning of the Section is that the Section cannot be invoked by a
person who is convicted for an offence punishable with
imprisonment for life. The fact that imprisonment for a lesser term
can also be awarded for the offence would not take it out of the
category of offences punishable with imprisonment for life.
13. Thus, the trial court erred in invoking the benevolent
provision under Section 4 of the PO Act in the case on hand.
Hence, the order on sentence dated 16.05.2019 is set aside.
14. Now, coming to the sentence to be imposed. The incident
took place in the year 2017. Nine years have elapsed. A3 and A5
were aged about 21 years and 24 years, respectively, when the
incident took place. It was at the time of framing the Charge that
A3 and A5 pleaded guilty, apparently before any witnesses were
examined. No materials have been placed on record by the
appellant to show as to what was the result of the case against the
remaining accused persons. The appellant/State has no case that
A3 and A5 have any criminal antecedents. A3 and A5 were in
judicial custody for a period of one year and eight months, and one
year and three months, respectively. In the absence of any other
materials, the sentence is confined to the period already undergone
by them.
15. In the result, the appeal is allowed. A3 and A5, the
respondents herein, are sentenced to rigorous imprisonment for six
months each for the offence punishable under Section 365 and to
fine of ₹ 5000/- each and in default, simple imprisonment for two
months each; to rigorous imprisonment for one year each for the
offence punishable under 395 read with Section 34 IPC and to a
fine of ₹ 6000/- each and in default, simple imprisonment for three
months each. The substantive sentence is confined to the period
already undergone by them. The fine amount, when realised, will
be given to CW17 Yashish Arora, the informant/victim in the case
under Section 357(1)(b)Cr.PC.
16. Application(s), if any, pending shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
JANUARY 28, 2026
