Jammu & Kashmir High Court
Joginder Singh vs State Of J&K on 6 May, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
Item No. 01
Suppl. List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(through virtual mode)
CrlM No.1952/2024
In CRA No.10/2005
JOGINDER SINGH ...APPELLANT/APPLICANT(s)
Through: Mr. Sunil Sethi, Sr. Advocate, with
Mr. Ankush Chandel, Advocate.
Vs.
STATE OF J&K ...RESPONDENT/NON-APPLICANT(S)
Through: None.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER(ORAL)
06.05.2025
1. Through the medium of present application, the appellant/applicant
has sought consideration of his case for grant of benefit of Probation of
Offenders Act, 1958, or in the alternative to reduce his sentence to the
period of incarceration of three months that has already been undergone by
him during the trial and post-conviction.
2. The appellant/applicant was convicted of offences under Section 307
and 498A RPC in a case arising out of FIR No.13/1993 registered with
Police Station, Khour, in terms of judgment of conviction dated 23.03.2005
passed by the learned Principal Sessions Judge, Jammu. Vide order dated
24.03.2005, the learned Sessions Judge sentenced the appellant/applicant
to undergo rigorous imprisonment for a period of five years for commission
of offence under Section 307 RPC and for a period of two years for
commission of offence under Section 498-A RPC. The appellant was also
sentenced to pay a fine of Rs.50,000/ for commission of offence under
Section 307 RPC and Rs.10,000/ for commission of offence under Section
498-A RPC. In default of payment of fine, the appellant was directed to
undergo further imprisonment of two years for offence under Section 307
RPC and six months for offence under Section 498-A RPC.
3. The aforesaid judgment of conviction and order of sentence came to
be challenged by the appellant/applicant before this Court vide CRA
No.10/2005. Vide judgment dated 06.12.2024 passed by this Court, the
judgment of conviction passed by the trial court has been upheld. However,
so far as the sentence imposed upon the appellant/applicant by the trial
court is concerned, the same has been reduced by providing that in proof of
offence under Section 307 RPC, instead of imprisonment of five years, the
appellant/applicant shall undergo imprisonment for a period of two years
whereas in proof of offence under Section 498-A RPC, sentence of
imprisonment has been reduced from two years to one year.
4. In the present application, the appellant/applicant has submitted that
he continues to live with his wife even after the incident which led to his
conviction. It has been further submitted that the appellant/applicant is a
poor person and being an ex-serviceman, it will be very difficult for him to
approach the Supreme Court for redressal of his grievance. It has been
further submitted that the High Court of Rajasthan has, in somewhat similar
circumstances in the case titled Nawal Kishore and another vs. State of
Rajasthan (Criminal Appeal No.483/1993 decided on 19.02.2004) granted
the benefit of Probation of Offenders Act to the convict therein.
5. Heard learned Senior Counsel for the appellant/applicant and
6. Section 4 of the J&K Probation of Offenders Act, which is in pari-
materia with Section 4 of the Probation of Offenders Act, 1958, lays down
the guidelines regarding extension of benefit of release on probation to a
convict. It would be apt to notice the provisions contained in Section 4 of
the J&K Probation of Offenders Act, which are reproduced as under:
"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 and 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 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 repetitions 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.
7. From a perusal of sub-section (1) of Section 4 quoted above, it is
clear that when a person is found guilty of having committed an offence
other than the offence punishable with death or imprisonment for life, the
court, that has passed the judgment of conviction having regard to the
circumstances of the case including the nature of the offence and the
character of the offender, has discretion to release such person on probation
of good conduct subject to the conditions laid down in Section 4.
8. Thus, it is clear that the power of the court to release a convict on
probation of good conduct is restricted to cases where the person has been
convicted of an offence other than the offence punishable with death or
imprisonment for life. In other words, a person who has been convicted of
an offence which is punishable with death sentence or with life
imprisonment cannot claim the benefit of release on probation of good
conduct. This has been clearly explained by the Supreme Court in the cases
titled Rattan Lal vs. State of Punjab (AIR 1965 SC 444) and Sitaram
Paswan & anr. Vs. State of Bihar (AIR 2005 SC 3534).
9. Coming to the facts of the present case. The appellant/applicant has
been convicted, inter alia, of offence under Section 307 RPC. It has been
proved that he had attempted to commit murder of his wife by pouring
kerosene oil upon her and setting her on fire with a matchstick, which
resulted in extensive burn injuries to her. Section 307 RPC makes the
offence of attempt to murder, if such an act causes hurt to any person,
punishable with imprisonment for life or imprisonment of either description
for ten years and fine. The offence, of which the appellant/applicant has
been convicted, carries punishment of life imprisonment, as such, his case
for grant of benefit under Probation of Offenders Act cannot be considered.
The prayer of the appellant/applicant is, therefore, without any merit.
10. The alternative prayer made by the appellant/applicant can also not
be granted in his favour because this Court, while passing judgment dated
06.12.2024, has reduced the sentence to the maximum possible extent after
taking into consideration all aspects of the matter including the
circumstances that the appellant/applicant continued his marriage with the
victim as also his prolonged trial. Even otherwise, it is not open to this
Court to review/modify its order of sentence in view of the specific bar
contained in section 369 of the J&K Cr. P. C, which clearly provides that a
criminal court cannot alter or review its judgment except to correct the clerical
errors. Reduction of sentence is certainly not a clerical error which can be
corrected by this Court after having already pronounced judgment dated
06.12.2024.
11. For the foregoing reasons, I do not find any merit in this application.
The same is dismissed accordingly. Interim order dated 18.12.2024 shall
stand vacated and the appellant/applicant is directed to surrender before the
trial court within one month from today and in default, the trial court shall
issue warrants of arrest against the appellant/applicant, whereafter he shall
be sent to jail for serving the balance period of sentence.
12. A copy of this order be sent to the trial court for information and
compliance.
(Sanjay Dhar)
Judge
Srinagar
06.05.2025
"Bhat Altaf-Secy"
Whether the order is reportable: Yes/No
