Gujarat High Court
State Of Gujarat vs Jiluji Maganji Thakor on 8 January, 2024
NEUTRAL CITATION
R/CR.A/1489/2006 JUDGMENT DATED: 08/01/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1489 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
==========================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
STATE OF GUJARAT
Versus
JILUJI MAGANJI THAKOR & 2 other(s)
==========================================================
Appearance:
MS MONALI H. BHATT, APP for the Appellant(s) No. 1
MR VK JOSHI(2329) for the Opponent(s)/Respondent(s) No. 1,2,3
==========================================================
CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 08/01/2024
ORAL JUDGMENT
1. This is an appeal filed by the appellant - State under
Section-11 of the Probation of Offenders Act, 1958
NEUTRAL CITATION
R/CR.A/1489/2006 JUDGMENT DATED: 08/01/2024
undefined
challenging the judgment and order dated 31.01.2006 passed
by the learned Additional Sessions Judge, Viramgam in
Criminal Appeal No.3 of 2005 interalia granting benefit of
Probation of Offenders Act and suspending the order of
sentence dated 29.09.2005 passed by the learned Judicial
Magistrate First Class, Viramgam in Criminal Case No.744 of
1995 for the offence punishable under Sections-325 and 114
of I.P.C. by granting benefit under Probation of Offenders Act.
2. The fact of the case is that the FIR came to be registered
by the complainant viz.Tejaji Gandaji Thakore against the
three accused persons alleging the offence punishable under
Sections-326, 323, 504, 324 and 114 of IPC alleging that on
15.04.1995 at 23:00 hours, an altercation was taken place
between the complainant and accused persons regarding not
playing the Dhol in the Garba. The accused no.3 had assaulted
to the wife of the complainant viz. Madhuben by dharia blow
on the head and on the toe of left leg and assaulted
complainant with dhariya on his left hand. The accused no.2
had given stick blow on the forehead of the complainant and
the accused no.1 had given kick-fist blow to the wife of the
NEUTRAL CITATION
R/CR.A/1489/2006 JUDGMENT DATED: 08/01/2024
undefined
complainant viz. Madhuben. With the aforesaid allegation, an
FIR came to be registered before the Mandal Police Station
being I-C.R. No.14 of 1995.
2.1 On setting criminal law in motion, the investigation was
carried out and on collecting the material, a chargesheet
came to be submitted before the learned Competent Court.
The learned Magistrate on satisfying being received the
papers by the accused persons had framed the charge below
Exh.12, which was read and explained to the accused persons
and plea was recorded below Exhs.13, 14 and 15 of all
accused, wherein the accused had pleaded innocent and
claimed to be tried.
2.2 To prove the case, the prosecution had examined eight
witnesses and produced 10 documentary evidences and on
filing the closing pursis, the statements of all accused persons
were recorded under Section-313 of the Cr.P.C. Incriminating
material, which was recorded during the trial, was put before
all accused and all accused had stated to be innocent,
however, no any evidence was led by any of the accused in
NEUTRAL CITATION
R/CR.A/1489/2006 JUDGMENT DATED: 08/01/2024
undefined
their defence. At the end, after evaluating the material placed
and considering the argument advanced by the learned
advocate for the respective parties, the learned trial Court
vide judgment and order dated 29.09.2005 convicted all the
accused persons for the offence punishable under Sections-
325 and 114 of the IPC. The learned trial Court ordered to
undergo the sentence of two years simple imprisonment with
fine of Rs.1,000/-, in default, further simple imprisonment of
20 days for the offence punishable under Section-325 of the
IPC and to undergo the sentence of one month with fine of
Rs.100/- and in default of fine, further seven days simple
imprisonment for the offence punishable under Section-114 of
the IPC.
2.3 Being aggrieved by the aforesaid judgment and order of
the conviction, an appeal was preferred by the accused
persons being Criminal Appeal No.3 of 2005 before the
learned Additional Sessions Court, Viramgam. The learned
appellate Court after considering the material placed before
the trial Court and the argument advanced by the learned
advocates, confirmed the conviction vide judgment and order
NEUTRAL CITATION
R/CR.A/1489/2006 JUDGMENT DATED: 08/01/2024
undefined
dated 31.01.2006. However, the sentence was suspended for
the period of two years by granting the benefit under Section
4(1)(3) of Probation of Offenders Act with observation that
during the probation period, if any condition would be
breached, then they would be called for completion of the
sentence. The learned appellate Court further ordered that
accused is ordered to be released on executing the personal
bond of Rs.5,000/- each with surety of the like amount for
maintaining peace and for good behaviour. With the aforesaid
observation, they were released under the Probation of
Offenders Act.
2.4 Being aggrieved and dissatisfied with the aforesaid
judgment and order of the learned appellate Court, the State
has preferred an appeal under Section 11 of the Probation of
Offenders Act.
3. Heard Ms. Monali H. Bhatt, the learned APP appearing
for the appellant - State and Mr. V.K. Joshi, learned advocate
for the opponent nos.1, 2 and 3.
4. Learned APP submitted that without considering the
NEUTRAL CITATION
R/CR.A/1489/2006 JUDGMENT DATED: 08/01/2024
undefined
gravity of offence and without considering the material placed
before the trial Court and reasons assigned for sentence, the
learned appellate Court had granted the benefit under the
Probation of Offenders Act. Learned APP further submits that
at the time of hearing of sentence, the prayer was made
before the learned trial Court to grant the benefit under the
Probation of Offenders Act, however, the learned trial Court
had rejected the said prayer considering the evidence placed
by the prosecution and considering the injury, which was
caused by the respondent - accused to the wife of the
complainant, which is grievous in nature. However, ignoring
the aforesaid aspect, the learned appellate Court had passed
the judgment and order granting the benefit under the
Probation of Offenders Act. Learned APP further submits that
as per Section-5 of the Probation of Offenders Act, while
granting the benefit, the learned trial Court ought to have
awarded the compensation to the victim, however, by not
granting the same, the learned appellant Court had committed
grave error and therefore, probation is nothing but travesty of
the justice considering the gravity of the offence. Learned
advocate further relies on the report submitted by the P.S.I.,
NEUTRAL CITATION
R/CR.A/1489/2006 JUDGMENT DATED: 08/01/2024
undefined
Mandal Police Station, Viramgam, dated 08.01.2024 wherein,
it is reported that against the accused no.1 and accused no.2,
one more offence is registered before the Mandal Police
Station being a II-C.R. No.46 of 2011. Learned APP states that
though the in the said offences, the judgment and order of
acquittal was passed by the learned trial Court, but
registration of FIR itself shows that the respondent - accused
are habitual offender and therefore, no benefit under the
Probation of Offenders Act can be granted. In view of the
above facts, learned APP prays to quash the order passed by
the learned appellate Court by suspending the sentence for
two years and further prays to restore the original order of
learned trial Court by directing the respondent - accused to
undergo the sentence.
5. On the other hand, Mr. V.K. Joshi, the learned advocate
for the respondents - accused submits that the order passed
by the learned appellate Court was of 31.01.2006, wherein,
for the period of two years, the sentence was suspended on
the condition that for the two years, if any offence is
registered and breach is reported against the respondents -
NEUTRAL CITATION
R/CR.A/1489/2006 JUDGMENT DATED: 08/01/2024
undefined
accused, they would be called for completion of the sentence.
Learned advocate further submits that the two years period
has already over and the order of the learned appellate Court
is already implemented. Therefore, at this stage, after a
period of 16 years, reversing the order passed by the learned
trial Court cause great injustice to the respondent - accused.
Learned advocate further submits that as submitted by the
learned APP the offence was registered in the year 2011,
therefore, it shows that for the period of two years, there was
no any breach of peace is reported at the end of respondent -
accused and therefore, there is no requirement to interfere
with the order passed by the learned appellate Court and
prays to dismiss the appeal.
6. Considering the argument advanced by the learned
advocates for the respective parties, this Court finds that the
learned trial Court after considering the evidence placed had
passed the judgment and order of conviction and awarded the
sentence of two years for the offence punishable under
Section-325 of the IPC. It is true that at the time of awarding
the sentence, the accused were heard and they prayed for
NEUTRAL CITATION
R/CR.A/1489/2006 JUDGMENT DATED: 08/01/2024
undefined
grating of benefit under Section-360 of the Cr.P.C. but the
same was rejected by the learned trial Court only on the
ground that injury, which was caused was of grievous in
nature and therefore, they are not required to be granted the
benefits under the Probation of Offenders Act.
7. Challenging the said order, similar prayer was made
before the learned appellate Court, wherein, the learned
appellate Court had call for the report from the Probation
Officer, in which the Probation Officer had stated that the
accused no.1 had committed the first offence and he is doing
the business of T.V. repairing. The financial condition of the
accused no.1 is average and he is suffering from physical
disability. It is further observed in the said judgment and
order of the learned appellate Court that the Probation Officer
had opined that with a view to provide the opportunity to
reform in the society, positive opinion was given to grant the
benefit under the Probation of Offenders Act. With regard to
the accused no.2, the Probation Officer stated that the
accused no.2 is doing the labour work and having wife as well
as minor kids. The accused no.2 is having the responsibility of
NEUTRAL CITATION
R/CR.A/1489/2006 JUDGMENT DATED: 08/01/2024
undefined
family and his parents are alive. It is further reported that
there is no any other offence is registered against this
accused, however, the Probation Officer had given negative
opinion so far as the accused no.2 is concerned. With regard
to the accused no.3, the Probation Officer has stated that the
accused no.3 is having the responsibility of family consisting
of a wife and five children, his younger son is aged about eight
months. The Probation Officer further stated that no any
offence is registered against the accused no.3. The Probation
Officer has given positive opinion for accused no.3 by praying
to give the benefit under the Probation of Offenders Act. The
learned trial Court had given detail reasons while grating the
benefit under the Probation of Offenders Act and keeping in
mind the reformative theory, the benefit under the probation
of Offenders Act was granted.
8. Learned APP has relied on section 5 of the Probation of
Offenders Act and prayed to award the compensation and
costs. For that Section-5 is required to be re-looked, which is
reproduced herein below.
Section-5 Power of Court to require released offenders to
NEUTRAL CITATION
R/CR.A/1489/2006 JUDGMENT DATED: 08/01/2024
undefined
pay compensation and costs. -
(1) The Court directing the release of an offender under
section 3 or section 4, may, if it thinks fit, make at the
same time a further order directing him to pay -
(a) such compensation as the court thinks
reasonable for loss or injury caused to any person by
the commission of the offence; and
(b) such costs of the proceedings as the court thinks
reasonable.
(2) The amount ordered to be paid under sub-section (1)
may be recovered as a fine in accordance with the
provisions of sections 386 and 387 of the Code.
(3) A civil court trying any suit, arising out of the same
matter for which the offender is prosecuted, shall take
into account any amount paid or recovered as
compensation under sub-section (1) in awarding
damages.
On examining the Section-5, it is found that it is the
discretionary power given to the Court to award the
compensation or to grant the cost. That, after considering the
report submitted by the Probation Officer, the learned trial
Court deem it fit not to award any compensation and cost,
which is not in mandatory in nature. Therefore also, this Court
NEUTRAL CITATION
R/CR.A/1489/2006 JUDGMENT DATED: 08/01/2024
undefined
does not interfere with the findings recorded by the learned
appellate Court while granting the benefits of Probation of
Offenders Act.
9. It is true that the injury, which is caused was of serious
in nature, but as at present, the probation period, which was
ordered by the learned appellate Court was already over and
there was no any untoward incident between the complaint
and the accused reported, this Court finds that there is no any
illegality or perversity in the order and therefore, no
interference is required. The argument advanced by the
learned APP that one more offence is registered against the
respondent nos.1 and 2 in the year 2011, but considering the
report, it is found that in the said offence, the judgment and
order of acquittal was passed by the learned trial Court in the
year 2015.
10. The aim of granting the benefit under Probation of
Offenders Act is to carry out the object of reformation. As the
offence is not of serious in nature, to avoid sending accused to
prison, running risk of turning him into regular criminal.
NEUTRAL CITATION
R/CR.A/1489/2006 JUDGMENT DATED: 08/01/2024
undefined
11. Considering the above, this Court finds that the
judgment and order dated 31.01.2006 passed by the learned
Additional Sessions Judge, Viramgam in Criminal Appeal No.3
of 2005 suspending the order of sentence dated 29.09.2005
passed by the learned Judicial Magistrate First Class,
Viramgam in Criminal Case No.744 of 1995, is just and proper
and therefore, no interference is to be required and hence, the
Criminal Appeal is hereby dismissed. Record and Proceedings
be sent back to the concerned Court forthwith.
(M. K. THAKKER,J)
A. B. VAGHELA
