Nathabhai Mulubhai Babriya vs State Of Gujarat
2021 Latest Caselaw 16876 Guj

      R/CR.RA/364/2021                              JUDGMENT DATED: 27/10/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL REVISION APPLICATION NO. 364 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI                                Sd/-

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1      Whether Reporters of Local Papers may be allowed                 Y
       to see the judgment ?

2      To be referred to the Reporter or not ?                          Y

3      Whether their Lordships wish to see the fair copy                N
       of the judgment ?

4      Whether this case involves a substantial question                N
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                         NATHABHAI MULUBHAI BABRIYA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MALAYKUMAR S PATEL(8901) for the Applicant(s) No. 1
PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
SIDDHANT R SHAH(8722) for the Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                               Date : 27/10/2021

                              ORAL JUDGMENT

1. This revision application is filed by the original first informant under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") praying for quashing and setting aside the impugned order, whereby benefit of probation for a period of five years was granted to respondent No.2 -

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original accused, who came to be convicted for an offence under Section 324 of the Indian Penal Code, as also under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Act"), and directed to undergo three years' simple imprisonment for an offence under Section 324 of the Indian Penal Code, as also five years' simple imprisonment for an offence under Section 3(1)(x) of "the Act" with fine. As such, as recorded in the impugned order, after pronouncing the conviction and sentence, instead of sending respondent No.2 - accused into custody, he was ordered to be released on probation for a period of five years.

2. The petitioner is the original first informant, who registered an FIR against respondent No.2 - accused, as pursuant to an application made to the Mines and Minerals Department, the officer concerned, visited lease site of the accused, which led to a quarrel with the complainant and not only he was assaulted by the present respondent No.2 - accused and other accused, who appears to be the sons of the present respondent No.2, they also caused injuries to the petitioner and he was insulted of his caste and threatened of dire consequences. The respondent No.2 - accused is said to have assaulted the petitioner with gupti and iron pipe. On conclusion of investigation, the charge-sheet came to be filed against the accused, which led to trial in the Court of learned Additional Sessions Judge and Special Judge (Atrocity), Rajula in Special Atrocity Case No.16 of 2013.

3. On conclusion of trial, the learned Judge vide judgment and order dated 29.01.2021, convicted and sentenced respondent No.2 - accused for the offences punishable under the Penal Code as also under "the Act". However, instead of implementing the sentence, he was granted benefit of probation for a period of five years and was not sent to the custody. It is

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that very order, so far as grant of probation is concerned, is challenged by the petitioner - complainant by way of present revision application.

4. Pursuant to Rule issued in this revision application, Mr. Siddhant R. Shah, learned advocate has appeared on behalf of the respondent No.2 - accused.

5. Mr. Malaykumar S. Patel, learned advocate for the petitioner, submitted that in view of Section 19 of "the Act", no person convicted for an offence under "the Act" can be granted benefit of either Section 360 of "the Code" or the provisions of the Probation of Offenders Act, 1958 (herein after referred to as "the Act, 1958") as it shall not apply to any person above the age of eighteen years, who is found guilty of having committed an offence under "the Act". He has further submitted that there is no constitutional issue involved in the case, which requires reference under Section 395 of "the Code". Not only that, it is further submitted that even without calling for the report of probation officer, benefit of probation came to be granted to respondent No.2 - accused, who is admittedly more than eighteen years of age and is not entitled for the same, in view of clear bar under Section 19 of "the Act".

5.1 Drawing attention of this Court to the list of cases filed against respondent No.2 - accused in Rajula Police Station itself, seven in numbers, under different provisions of the Indian Penal Code as also the Motor Vehicles Act, ranging from the year 2006 till the present case, it is submitted that a person having such a criminal record cannot be granted benefit of probation as it could have been refused on assigning good reasons.

       R/CR.RA/364/2021                               JUDGMENT DATED: 27/10/2021



5.2       He has relied on a decision of the Rajasthan High Court in the case

of State Government vs. Kesu Dang, reported in SB Criminal Appeal No.831 of 2011 dated 30.07.2013, and submitted that in the said decision, the benefit of probation granted by the Sessions Court to the accused, who was convicted for an offence under "the Act", came to be set aside in view of Section 19 of "the Act". The Rajasthan High Court allowed the above referred appeal preferred by the State and set aside the direction granting probation to the accused in that case and the matter was remanded to it for passing a fresh judgment. Therefore, he has submitted that the impugned judgment and order, so far as it grants benefit of probation to the respondent No.2 - accused, who is convicted for an offence under "the Act", is required to be quashed and set aside.

6. Ms. C.M. Shah, learned APP has also supported the submission made by Mr. Malaykumar S. Patel, learned advocate for the petitioner by submitting that when there is a clear bar under Section 19 of "the Act", any person convicted for an offence under "the Act" could not have been granted the benefit of probation.

7. Mr. Y.N. Ravani, learned advocate appearing with Mr. Siddhant R. Shah, learned advocate for respondent No.2 - accused submitted that the accused filed affidavit-in-reply to the criminal revision application producing several documents along with the reply, including certain depositions of witnesses and documents. Drawing attention of the Court to the contents of the affidavit, it is submitted that the trial Court found the following aspects while conducting the trial:

(i) The deponent is having the responsibility of aged parents, widow and two daughters and sons of his younger brother.

       R/CR.RA/364/2021                                 JUDGMENT DATED: 27/10/2021



          (ii)    The deponent is not having any other criminal antecedents.
          (iii)   There is no other earning member.
          (iv)    The deponent is from a good family background and is a
          man of good character.
          (v)     The deponent is ready to undertake and maintain good
                  behaviour.

It is asserted in the affidavit that he has followed the order of Court granting him probation and as directed is reporting to the probation officer regularly. It is also asserted in the affidavit that the order of Special Court has already been implemented and accused has started obeying the condition and there is no negative report from the probation officer.

7.1 He has further submitted that the provisions of "the Act, 1958" are beneficial provisions made with a view to fulfill the object for reformation in criminal justice delivery system. He has further submitted that by grant of probation to the accused, he is not acquitted but is under supervision of an officer, who is appointed under the provision of "the Act, 1958" with a condition to report regularly to the probation officer. He has further submitted that drawing attention of the Court to the statement of objects and reasons of "the Act, 1958", since there were no separate probation laws at all in several States, the Central Legislation by way of "the Act, 1958" is enacted to bring about uniformity in its application with more emphasis on the reformation and rehabilitation of the offender as a useful and self-reliant member of society without subjecting him to the deleterious effects of jail life.

7.2 It is further submitted that by grant of probation to the accused and releasing him on probation, he doesn't become free citizen but is subject to observation and check by the probation officer with a duty to report

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regularly to the probation officer. Drawing attention to the difference between Sections 3 and 4 of "the Act, 1958", he has submitted that classification is done by "the Act, 1958" and there needs no further classification by taking away the benefit of that benevolent provisions of law.

7.3 It is further submitted that even where the punishment is provided punishable with death or imprisonment for life, the Court is empowered to grant probation in an appropriate case if it fulfills the criteria, whereas Section 3 of "the Act" provides a sentence of six months to five years with fine and where there is no such benefit of probation to be granted in view of Section 19 of "the Act", it is submitted that classification for grant of benefit of probation on the basis of punishment is absolutely arbitrary, unjust and in breach of Article 14 of the Constitution of India. It is further submitted that offenders under "the Act" are excluded from consideration for grant of benefit of probation, which is contrary to the object of "the Act, 1958". Referring to the Parliamentary debates on "the Act, 1958" at page 20, 26 & 27 of the compilation provided by the learned advocate for the respondent No.2 - accused, it is submitted that the intention of Legislature is reformative and instead of sentencing an accused, maximum use of "the Act, 1958" is to be resorted to by the Court. It is further submitted that depriving the accused benefit of probation, without there being any logical reason, is absolutely arbitrary, and therefore, it is required to be held to be ultra vires to the Constitution of India.

7.4 It is further submitted that grant of probation to an accused without calling for the report of the probation officer be construed as merely an irregularity and not an illegality. For the said contention, a reference is made to a decision in the case of State of Gujarat vs. Ganpatbhai

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Premjibhai Joshi, reported in 1998 Criminal Law Journal 2160, wherein this Court concluded that lapse to call for report of probation officer can be overlooked. He has further submitted that the appeal against conviction of an accused, who is granted benefit of probation, is held to be maintainable by Full Bench of Allahabad High Court in the decision in the case of Sheo Narain Tandon vs. The State reported in AIR 1959 ALL 351. Similarly, he has relied on a decision in the case of Honorato de Souza vs. Pedro Manuel Puriflcacao de Souza and the State, reported in AIR 1966, Goa, Daman and Diu 46. Relying on the decision in the case of Moran M. Baselios Marthoma Mathews II and Others vs. State of Kerala and Others, reported in 2007 (6) SCC 517, more particularly, para 13 thereof, it is submitted that appeal is continuation of original proceedings. If the statute is not prohibiting filing of appeal against conviction itself, it is a statutory right of the person, which cannot be curtailed and a person can prefer an appeal against his conviction despite grant of benefit of probation. Relying on the decision in the case of Dilip S. Dhandukar vs. Kotak Mahindra Co. Ltd. and Another, reported in 2007 (6) SCC 528, it is submitted that right to Appeal is a fundamental right, which cannot be shut out or cannot be subjected to any condition. In short, it is submitted that even if this revision application is pending, he cannot be deprived of his right to prefer an appeal against his conviction, and therefore, his appeal would also be maintainable.

7.5 In short, the submissions of the learned advocate for respondent No.2 - accused is that the provisions made under "the Act, 1958", which is benevolent in nature, covers every accused of all offences and even encompasses punishment except death sentence and life imprisonment, whereas, "The Act", which provides for maximum punishment up to five years, the benefit of probation could not have been taken away on the

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basis of punishment also which would be arbitrary, and therefore, ultra vires the Constitution.

8. Considering the submissions made by the parties as also the record annexed with the petition, the affidavit-in-reply as also the compilation filed by the learned advocate for respondent No.2 for the determination of this revision application Section 19 of "the Act" is required to be reproduced herein:

" 19. Section 360 of the Code or the provisions of the Probation of Offenders Act not to apply to persons guilty of an offence under the Act.--The provisions of section 360 of the Code and the provisions of the Probation of Offenders Act, 1958 (20 of 1958) shall not apply to any person above the age of eighteen years who is found guilty of having committed an offence under this Act."

A mere look at the aforesaid provision would establish that benefit of probation either under Section 360 of "the Code" or under "the Act, 1958" cannot be granted to any person above the age of eighteen years, who is found guilty of having committed an offence under "the Act". When there is no dispute in this case that the respondent No.2 - accused is a person aged above eighteen years, therefore, in view of express provision made in "the Act", no benefit of probation could have been granted to the accused, who is convicted for an offence under "the Act". Dealing with the contentions with regard to maintainability of an appeal against the conviction, suffice it to say that though appeal may be maintainable, it has nothing to do with the determination of the present revision application, which challenges only the grant of probation and not touching any other aspect of the case.

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9. The submission that the provisions of Section 19 of "the Act" is absolutely arbitrary, unjust and in breach of Article 14 of the Constitution is concerned, it is out of context. As such, considering the object of "the Act" as also keeping in mind the measures to improve socio-economic conditions of Scheduled Castes and Scheduled Tribes, they remain vulnerable, that has brought about the enactment containing a provision like Section 19 of "the Act". Howsoever benevolent provisions of "the Act, 1958" may be, when it is specifically barred by "the Act", keeping in mind the indignities, humiliations and harassments suffered by the oppressed class like Scheduled Castes and Scheduled Tribes, when such provision is made, it cannot be said to be arbitrary or in breach of Article 14 of the Constitution of India.

10. Considering the respect and dignities to be conferred to the Scheduled Castes and Scheduled Tribes, the provisions under "the Act" has been enacted. It has to be applied to one and all and no un-equals are being treated equally, and therefore, it cannot be said that there is any breach of Article 14 of the Constitution of India. The contention that classification on the basis of punishment, where "the Act, 1958" grants benefit to an accused, who is not convicted for an offence punishable with death or imprisonment of life, taking away the same benefit to an accused convicted under "the Act" where sentence is up to five years is required to be rejected outright. As such, provisions of Section 19 of "the Act" is not made with that consideration. It is made with a view to deter a person to humiliate or insult persons of Scheduled Castes and Scheduled Tribes, which are made punishable under "the Act" and, therefore, it cannot be said that the said provision is in any manner, arbitrary or unjust and made in breach of Article 14 of the Constitution of India.

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11. When special provision for special class for upliftment of underprivileged, made with a view to deter persons committing offences under "the Act", parliament consciously taken away benefit of probation either under Section 360 of "the Code" or under "the Act, 1958", it cannot be said that it is arbitrary, discriminatory or unjust in breach of any of the fundamental rights. As such there is presumption of constitutionality of any Act or provision. There is no question of treating anyone differently. The distinction made between the offender committing offence under penal law and offender committing offence under "the Act" is with a purpose. Not only a provision is made to deny benefit of probation to convict of offence under "the Act" but overriding effect is also accorded to the provisions of "the Act" to other laws. When "the Act" enacted provisions of Section 360 of "the Code" as also "the Act, 1958" were existing. The legislature was conscious about the existing provisions of Section 360 of "the Code" as also the "the Act, 1958", while enacting "the Act" therefore, even in absence of overriding effect of "the Act", provision denying benefit of probation to convict of offence under "the Act" would have prevailed as special law.

12. The aforesaid contention is again misconceived as learned advocate for respondent No.2 - accused has missed Section 20 of "the Act", which reads as under:

" 20. Act to override other laws.--Save as otherwise provided in this Act, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law."

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The Legislature in its wisdom, while enacting "the Act" in the year 1989, was aware about the provisions of "the Act, 1958", despite that it provided under Section 19 of "the Act", taking away grant of benefit of probation to the convicted accused for an offence under "the Act".

Howsoever beneficial provisions would be under "the Act, 1958", with an overriding effect of "the Act", which provides non-grant of the same to the convict of the offence under "the Act", it can never be said to be arbitrary in any manner. The provisions of "the Act", more particularly, Section 19, would override the provisions of "the Act, 1958", and therefore, in case of such conflict, despite existence of the "the Act, 1958", the accused convicted for an offence under "the Act", in view of Section 19 and 20 of "the Act" cannot be granted benefit of probation.

13. Coming back to the impugned judgment and order, it appears that, neither the advocate for the accused nor the prosecutor appearing before the trial Court brought to the notice of the Court that in view of Section 19 of "the Act", no benefit of probation could be granted to an accused, convicted under "the Act". At the same time, the concerned Court is also not alive to such provision and therefore, fell in error while it granted benefit of probation to accused, who is convicted for an offence under "the Act".

14. At the same time, grant of benefit of probation without calling for report from the probation officer may not be treated to be merely an irregularity. When probation is to be granted, as such, a report should be called for from the probation officer, whether accused is entitled to such benefit or not, considering his social status, conduct and the other aspects. However, it has nothing to do with the present case, when there is a clear bar for grant of probation. The issue that it can be granted without calling for report or not pales into insignificance.

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15. Therefore, there remains no option but to allow this revision application by quashing and setting the grant of benefit of probation for five years to the respondent No.2 - accused instead of implementing the order of sentence. Thus, benefit of probation granted to respondent No.2

- accused, as mentioned in para 3 of the impugned judgment and order, is hereby quashed and set aside and he is directed to surrender to the custody for serving out the sentence, subject to the appeal to be heard on merit in accordance with law. However, it is made clear that before hearing the appeal against his judgment of conviction and order of sentence now would be conditional that unless he surrenders, his appeal may not be taken up for hearing and trial Court may be free to issue non- bailable warrant asking respondent No.2 - accused to serve up the sentence.

Rule made absolute to the aforesaid extent.

(UMESH A. TRIVEDI, J) Raj S. Dhobi