Gauhati High Court
Page No.# 1/4 vs The State Of Assam on 21 May, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/4
GAHC010003882013
2025:GAU-AS:6359
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./40/2013
MD. SAFRUL ISLAM and 2 ORS
S/O MD ISMIL ALI
2: MD HIFJUR RAHMAN
S/O MD ISMIL ALI
3: MD ISMIL ALI
S/O ATOR ALI ALL ARE R/O VILL- KUNAPARA
P.S. BADARPUR
DIST KARIMGANJ
ASSA
VERSUS
THE STATE OF ASSAM
Advocate for the Petitioner : MS.P YASMIN, MR.A UDDIN,MR.G UDDIN
Advocate for the Respondent : PP, ASSAM, ,
:: PRESENT ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the Petitioners : Mr. G. Uddin,
Advocate.
For the Respondent : Mr. J. Chutia,
Addl. P.P. Assam.
Date of Hearing : 14.05.2025.
Date of Judgment : 21.05.2025.
Page No.# 2/4
JUDGMENT AND ORDER (CAV)
Heard Mr. G. Uddin, the learned counsel appearing for the petitioners. Also
heard Mr. J. Chutia, the learned Addl. Public Prosecutor, Assam.
2. This is an application under Section 397 read with Section 401 of the Criminal
Procedure Code (CrPC) challenging the judgment and order dated 18.11.2011 passed
by the learned Chief Judicial Magistrate, Karimganj in G.R. case No.732/2006 affirmed
by the learned Addl. Sessions Judge (FTC), Karimganj in Criminal Appeal
No.21(4)/2011.
3. On 21.08.2006 at about 10 in the morning, Moinuddin was going towards
Karimganj. The petitioner Ismail Ali stopped him on the road and started to argue with
him. Ismail Ali called his sons, the petitioner Hifjur Rahman (now deceased) and the
petitioner Safrul Islam. The father and sons trio, assaulted Moinuddin.
4. The trial court, on the basis of the evidence on record, convicted Ismail Ali and
his sons under Sections 341 and 323 of the Indian Penal Code read with Section 34 of
the said Code.
5. For the offence under Section 341 of the IPC, the petitioners were sentenced to
pay a fine of ₹250/- each and for the offence under Section 323 of the IPC, they were
sentenced to pay ₹250/- each. In default of payment of fines for both the offences,
the petitioners were sentenced to undergo simple imprisonment for 7(seven) days
each.
6. On appeal, the learned appellate court upheld the judgment passed by the trial
court.
7. Mr. Uddin has submitted that the learned trial court as well as the appellate court
committed jurisdictional error because both the courts did not show any reason as to
why the provisions of the Probation of Offenders Act, 1958 were not applied in the
said case.
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8. I have considered the submissions made by the learned counsel of both sides.
9. When a criminal court punishes a convicted person, the court has to consider
many things. Court has to consider the antecedents of the offender, his character and
his age. The court has the power to release an offender on probation of good conduct
instead of sentencing him to undergo imprisonment. While punishing an offender, the
court has to consider the circumstances in which the offence was committed. Before
imposing sentence upon a convict, the court has to show a reason as to why he
cannot be released on admonition or on probation of good conduct. Section 360 of the
Criminal Procedure Code as well as the Probation of Offenders Act, 1958 says so.
10. The factual matrix involved in Keshav Sitaram Sali v. State of Maharashtra ,
(1983) 1 SCC 390 is like this -
"The charge against the appellant who was an employee of the Railways was that on
September 12, 1972 at Paldhi Railway Station he had abetted the commission of an
offence of theft of coal from a railway goods wagon, which was committed by Bhikan
Murad who was arraigned as Accused 1 in the case before the Special Judicial
Magistrate First Class (Railways), Bhusawal. The learned Magistrate acquitted the
appellant of that charge and against the judgment of acquittal passed by the learned
Magistrate, the State Government filed an appeal before the High Court of Bombay.
The High Court allowed the appeal and convicted the appellant of an offence
punishable under Section 379 read with Section 109 IPC. It imposed a sentence of fine
of Rs 500 on the appellant and in default of payment of fine to suffer rigorous
imprisonment for two months. The subject-matter of theft was a quantity of coal
valued at Rs 8. After the judgment was delivered by the High Court the appellant has
been taken back to duty by the Railways and he is in service. "
11. Under the said factual matrix, the Hon'ble Supreme Court has held as under:
"2. Having regard to the special circumstances of this case and the character and
antecedents of the appellant we are of the view that this was an eminently fit case in
which the High Court should have extended the benefit of either Section 360 of the
Code of Criminal Procedure or Sections 3 and 4 of the Probation of Offenders Act to
the appellant instead of imposing a sentence of fine on him. We, therefore, set aside
the sentence imposed upon the appellant and remit the case to the trial court [Court
of the Special Judicial Magistrate, First Class (Railways)], Bhusawal to pass an
appropriate order under either of the two provisions referred to above. The fine which
has already been paid by the appellant shall be refunded to him. The appellant shall
appear before the Magistrate on any date during the second week of February, 1983 to
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enable the trial court to pass orders as directed above."
12. Coming back to the case in hand, this Court is of the opinion that failure to
consider the case of the petitioners under provisions of Section 360 of the Code of
Criminal Procedure or under the Probation of Offenders Act, 1958, the trial court as
well as the appellant court had committed jurisdictional error. Therefore, the revision
petition is allowed.
13. The sentences imposed upon the petitioners are set aside. Now, the petitioner
Md. Hifjur Rahman is no more as he expired on 06.02.2015. Therefore, the petitioners
Md. Safrul Islam and Md. Ismail Ali/Ismil Ali are released under Section 3 of the Act of
1958.
The Revision Petition is disposed of. Send back the LCR.
JUDGE
Comparing Assistant
