Bakulbhai Morarbhai Patel vs State Of Gujarat
2023 Latest Caselaw 8051 Guj

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      R/CR.RA/202/2012                            ORDER DATED: 03/11/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL REVISION APPLICATION NO. 202 of 2012

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                         BAKULBHAI MORARBHAI PATEL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1
MR DHAWAN JAISWAL, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                              Date : 03/11/2023

                                ORAL ORDER

1. This revision is preferred by the Revisionist under Section 379 read with Section 401 of the Code of Criminal Procedure, 1973, seeking to quash and set aside the judgment and order dated 5.6.2004, passed by the learned JMFC, Navsari in Criminal Case No. 2805 of 1997, whereby, the Revisionist was convicted for the offence punishable under Section 326 of the Indian Penal Code, 1860, and was sentenced to undergo simple imprisonment for 03 years and to pay fine of Rs.5000/- and in default to undergo further simple imprisonment for one month, so also the order dated 13.4.2012, passed by the learned 2nd (Ad hoc) Addl. Sessions Judge, Navsari, in Criminal Appeal No. 10 of 2004, whereby, the appellate Court confirmed the judgment and order passed by the trial Court.

1.1 Being aggrieved by the impugned judgment and order

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passed by the trial Court as well as the Appellate Court, the Revisionist is before this Court by way of the present Revision.

2. Learned Advocate Mr. Bharda appearing for the Revisionist, instead of pressing the merits of the Revision, would submit that the benefit of Section 4 of the Probation of Offenders Act, 1958 (in brief, 'the Act'), be extended to the petitioner. He referred to and relied on the decision of the Hon'ble Apex Court in 'Jagatpal Singh and Others Vs. State of Haryana', 1999 SCC OnLine SC 355, so also the decision of this Court dated 29.09.2023, rendered in Criminal Revision Application No. 99 of 2013 in support of his submission.

2.1 Pursuant to the request made by the learned Advocate Mr. Bharda to extend the benefit of Section 4 of the Act to the Revisionist, this Court had called for report of the concerned Probation Officer, which is forwarded by him and the same is ordered to be taken on record.

3. On the other hand, learned APP appearing for Respondent

-State submitted that if, this Court deems fit it may pass appropriate orders granting benefit of Section 4 of the Act to the Revisionist by imposing suitable costs.

4. In the above background, brief facts of the case are as under:-

4.1 That one Ramanbhai Parbhubhai Patel lodged a complaint

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in Navsari Rural Police Station on 3.3.1997 which was registered as C.R. No. I-46/1997 under section 326 of the I.P.C. and under section 135 of the Bombay Police Act inter-alia alleging that the complainant is serving as a Senior clerk in the office of G.E.B., Navsari and he goes to his work place from his house in Pijra. He has two brothers and two sisters. That he has three uncles out of which his father is the eldest whereas his second uncle Jivanbhai Babarbhai is residing abroad and another uncle Maganbhaj Babarbhai has expired and the youngest uncle is Morarbhai Babarbhai and they are all residing separately and doing agricultural activityThat his youngest uncle Morambhai Babarbhai has three children wherein his eldes son is Bharat who is residing abroad, second son is Bak who is the present petitioner and the youngest son Prakashbhai and all of them are residing together as the lands are also together. The lands of the complainant a separate and since the complainant is serving in G.E.B., his younger brother Dhirubhai Parbhubhai is looking after the agricultural activity on behalf of the complainant and due to rice being cultivated, his brother Dhirubhai was supplying water through a small canal, however the agricultural land of his uncle Morarbhai is also situated in the front side of the land of the complainant and since the canal also is joined from there for the purpose of giving water, that despite the brother of the complainant was giving water from the said canal, the paternal cousin namely Bakulbhai removed the canal which was used for giving water and had become enemical with the brother of the complainant.

4.2 That on 3/3/1997, when the brother of the complainant

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was giving water to the crop of rice, at that time his cousin Bakulbhai was also present in his agricultural field and at around 9.15 a.m. in the morning, there was a verbal altercation between the brother of the complainant and the said Bakulbhai, at that time the said Bakulbhai all of a sudden assaulted the brother of the complainant with a sickle because of which the brother of the complainant fell on the ground and became unconscious. At that time one Arvindbhai who was working in the agricultural field alongwith Savitaben Maganbhai Halpati informed the wife of the brother of the complainant that her husband was assaulted by his cousin Bakulbhai and that he is lying unconscious in the agriculture filed. The complainant therefore upon coming to know of this went to the agriculture filed and saw that his brother Dhirubhai was assaulted in the head and since he require immediate medical aid, he was shifted to Khadsupa Hospital and from there for further treatment to Gohil Hospital in Navsari and thereafter the complainant proceeded to lodge the complaint.

5. It is alleged in the FIR that the Revisionist committed the offence punishable under Section 326 of the Indian Penal Code. Pursuant to the registration of FIR, the concerned IO carried out the investigation and on completion of the same filed the charge- sheet before the trial Court. Since, the Revisionist did not plead guilty, charge was framed against him. During the course of trial, prosecution examined witnesses and also adduced documentary evidences. At the end of the trial, the trial Court, though, acquitted the Revisionist for the aforesaid offence, convicted him for the offence punishable under Section 326 of

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the IPC. When the Revisionist challenged the same before the Appellate Court, the Appellate Court dismissed his appeal as stated herein above and hence, the present Revision.

6. Heard learned advocates appearing for the respective parties.

7. From a perusal of the report filed by the concerned Probation Officer, it appears that he has given positive opinion in favour of the present Revisionist and has stated that no antecedent is recorded against the Revisionist. It is further stated that the petitioner has the responsibility of his family. It is also stated that the Revisionist is readily helping other persons in the family and in the village and that he is not a habitual offender. It is also stated subsequent to the incident in question, he has not committed any other offence and there is every chance of reform. It is submitted that the petitioner is feeling remorse for the incident in question. In short, the Probation Officer has given a positive opinion in favour of the Revisionist. It was submitted that the petitioner is about 45 years of age at the time of filing this petition and at present, he is 56 years old. From the record it is also revealed that at the time of hearing of his appeal before the Appellate Court also, the Revisionist had made a request for grant of benefit of probation to him.

8. In the present case, the Revisionist is convicted for the offence punishable under Section 326 of the IPC, which provides for maximum punishment upto life. However, the Revisionist is

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inflicted the punishment of only three years in this case. The prosecution has accepted the aforesaid verdict and hence, there is no possibility of enhancement in punishment. This is a case of punishment of trivial nature and if, the nature of injury sustained by the original complainant is perused, the same is also trivial in nature. Thus, the facts and circumstances in this case are sufficient to attract the benefit of probation in favour of the Revisionist. In peculiar facts of the case, this Court owes duty to do ex debito justice. This Court is conscious to the proposition that in case where punishment can be inflicted is upto life, benefit of probation should not be extended. But, in the present case, infliction of three years' punishment to the petitioner is accepted by the State/prosecution machinery. Now, there is no chance of imposing higher punishment. Thus, this fact makes the case fit to exercise power to extend the benefit of probation. Lest, it would be again the very proposition of interest of justice and to do justice.

9. At this juncture, it would be relevant to refer to the observations made by this Court at Paragraphs-10 and 11 in Criminal Revision Application No. 99 of 2013, which reads thus;

"10. Both the courts below have seriously erred in reading the provisions of the Probation of Offenders Act, 1958 as well as sections 360 & 361 of the Code of Criminal Procedure, 1978. The Court was required to give reason for not extending the benefit of the Probation of Offenders Act, 1958. Such reasons are lacking, The learned trial Court observed that at the time of incident, the petitioner is holding weapon like knife and that aspect has weighed the learned trial Court not to extend the benefit of probation to the petitioner/accused. I am not satisfied with such reason.

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In fact, such is not a reason for not extending the benefit of probation.

11. Be that as it may, since the Probation Officer, Anand filed positive report, this Court is of the considered opinion that the petitioner/accused is required to be given benefit of probation under the Probation of Offenders Act, 1958. In Jagatpal Singh (supra), the Hon'ble Apex Court has extended benefit of probation in favour of the accused for the offence punishable u/s 323 r/w section 452 of the IPC. At this juncture, learned APP Mr. Soni would submit that the petitioner/accused requires to be saddled with amount of cost u/s 5 of the Probation of Offenders Act, 1958. For such statement, learned advocate Ms. Riya Patel would submit to pass necessary order considering the fact that the petitioner/accused is poor and is coming from lower strata of the society."

10. For the foregoing reasons, I pass following order:-

ORDER

1. The judgment and order of conviction and punishment dated 5.6.2004, passed by the learned JMFC, Navsari, in Criminal Case No. 2805 of 1997 and confirmed vide order dated 13.4.2012, by the learned 2nd (Ad hoc) Addl. Sessions Judge, Navsari, in Criminal Appeal No. 10 of 2004, is hereby confirmed.

2. Instead of directing the petitioner/accused to undergo imprisonment stated in the impugned judgment, the benefit of probation u/s 4 & 5 of the Probation of Offenders Act, 1958 r/w sections 360 & 361 of the Code of Criminal Procedure, 1978, is granted to the petitioner/accused.

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3. Instead of sending the petitioner/accused in custody for undergoing the sentence, the petitioner/accused is ordered to execute personal bond of Rs.5000/- before the learned learned JMFC, Navsari, and surety of like amount for keeping good behaviour and peace for a period of six months from the date of receipt of writ of this order.

4. The petitioner/accused shall pay costs u/s 5 of the Probation of Offenders Act, 1958 of Rs.15000/- to the DLSA, Navsari, before executing the personal bond and surety as ordered earlier.

5. At the end of time period of six months, if the petitioner/accused is found with good behaviour and is keeping peace in the society, the substantive sentence shall become inoperative.

11. With these observations and directions, present Criminal Revision Application stands disposed of. Rule is made absolute, accordingly. Direct service is permitted.

(J. C. DOSHI,J) SHEKHAR P. BARVE