Smt Savithramma vs The State Of Karnataka
2021 Latest Caselaw 3481 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 23RD DAY OF OCTOBER, 2021

                     BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.1080/2021


BETWEEN:

1.    SMT. SAVITHRAMMA
      W/O. LATE KALEGOWDA
      AGED ABOUT 63 YEARS

2.    RAGHU S.K.
      S/O. LATE KALEGOWDA
      AGED ABOUT 38 YEARS

3.    RANI
      D/O. LATE KALEGOWDA
      AGED ABOUT 36 YEARS

ALL ARE RESIDING AT:
SANNAKKIGOWDANA KOPPALU VILLAGE
KONANUR HOBLI
ARAKALAGUD TALUK
HASSAN DISTRICT
PIN CODE - 573 102                  ... PETITIONERS

(BY SRI.SANCHAN JAI NANDAN, ADV.)
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AND:

THE STATE OF KARNATAKA
THROUGH KONANUR POLICE STATION
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001                 ...RESPONDENT

(BY SMT. RASHMI JADHAV, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 CR.P.C READ WITH SECTION 401
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
09.09.2021 PASSED IN CRL.A.NO.100/2021 SO FAR AS
THESE PETITIONERS ARE CONCERNED ON THE FILE OF
THE LEARNED PRINCIPAL DISTRICT AND SESSIONS
JUDGE, HASSAN AND SET ASIDE THE CONVICTION
SENTENCE PASSED BY THE LEARNED ADDITIONAL CIVIL
JUDGE AND JMFC, ARAKALAGUD IN C.C.NO.51/2015 (OLD
C.C.NO.20/2008) DATED 24.06.2019 AGAINST THE
PETITIONERS FOR THE OFFENCE P/U/S 506 OF IPC.


     THIS CRIMINAL REVISION PETITION COMING ON
FOR ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:-

                           ORDER

Though this matter is listed for admission today, with

the consent of both the parties, the matter is taken up for

final disposal.

2. Heard Sri Sanchan Jai Nandan, learned counsel

for the Revision Petitioners and Smt. Rashmi Jadhav,

learned High Court Government Pleader for respondent-

State.

3. This Revision Petition is filed challenging the

validity of the judgment passed in C.C.No.51/2015

whereby the Revision Petitioner came to be convicted for

the offence punishable under Section 506 of IPC and was

ordered to undergo simple imprisonment for a period of six

months and to pay fine of Rs.2,000/-, with a default

sentence of two months of simple imprisonment which was

confirmed in Criminal Appeal No.100/2021 dated

09.09.2021, on the file of the Principal District and

Sessions Judge, Hassan.

4. Brief facts of the case are as under:

Arakalagudu police filed a charge sheet against the

Revision Petitioners and others which was tried in

C.C. No.51/2015. On contest, the said case ended in

conviction of the accused persons including the Revision

Petitioners by order dated 24.06.2019. Being aggrieved

by the conviction order, the Revision Petitioners filed an

appeal before the Principal District and Sessions Judge in

Criminal Appeal No.100/2021. The learned Principal

District and Sessions Judge after securing the records and

hearing the parties, by order dated 09.09.2021, did not

entertain the appeal on merits inter alia disposing of the

appeal by rejecting IA No.1 filed under Sections 4 and 5 of

the Indian Limitation Act.

5. Learned counsel for the Revision Petitioners

vehemently contended that the First Appellate Court erred

in law in not entertaining the appeal on merits and by

dismissing the appeal on the ground of limitation. He

further contended that the appeal is the right of an

accused and the First Appellate Court ought not to have

adopted a pedantic approach in entertaining IA.No.1 filed

under Sections 4 and 5 of the Indian Limitation Act and

should have considered IA No.1 filed in Criminal Appeal

No. 100/2021 with a liberal view and ought to have

condoned the delay and dispose of the appeal on merits.

Alternatively, he contended that both the Courts have

failed to consider grant of Probation to the revision

petitioners as admittedly the revision petitioners are the

first time offenders and sought for modification of the

order passed by the learned Magistrate by granting

probation to the revision petitioners.

6. Per contra, learned High Court Government

Pleader opposes the submissions made on behalf of the

Revision Petitioners. However, in respect of the alternate

submission, learned HCGP contended that in the event of

this Court granting the probation, the report from the

Probation Officer is necessary and therefore, to that

extent, the matter requires re-consideration before the

learned Magistrate and sought for remanding the matter

only with regard to the granting of probation while

maintaining the conviction order.

7. In view of the rival contentions urged by the

learned counsel for the parties, the following points that

would arise for consideration are:

"1. Whether the revision petitioners have made out a case to interfere with the finding recorded by the learned Magistrate that the accused/revision petitioners are guilty of the offence punishable under Section 506 of the IPC?

2. Whether the revision petitioners have made out a case for modification of sentence?"

8. In the case on hand, admittedly, the accused

came to be convicted for the offence punishable under

Section 506 of the IPC. The material evidence available on

record clearly indicate that the Revision Petitioners did

gave a life threat to the complainant.

9. The material evidence available on record

sufficiently establish that there was a scuffle between the

accused party and the complainant party with regard to

the serious matrimonial dispute between the complainant

and accused No.1-Manjegowda. The material evidence also

establishes that in this scuffle, there was a life threat given

to the complainant by all the accused persons including the

revision petitioners. The finding recorded by the learned

Magistrate, on re-appraisal, this Court is of the considered

opinion that it is based on sound reasons. Therefore, there

is no case made out by the revision petitioners to interfere

with the finding recorded by the learned Magistrate that

accused/revision petitioners are guilty of the offence

punishable under Section 506 of the IPC. Accordingly,

point No.1 is answered in the negative.

10. Insofar as the sentence is concerned,

admittedly, the revision petitioners are the mother-in-law,

brother-in-law and sister-in-law of the complainant. They

are all first time offenders. There is no material on record

to show that they are habitual offenders. In this scuffle, on

account of emotions, the accused persons have given life

threat. In the absence of any previous criminal

antecedents, the convicting Court ought to have

considered the grant of probation. The learned Magistrate

while sentencing the revision petitioners for imprisonment

of six months for the offence punishable under Section 506

of the IPC, has stated that since the offence is against a

lady, granting of probation would result in sending a wrong

signal to the society.

11. The said reasoning assigned by the learned

Magistrate cannot be countenanced in law inasmuch as

once an order of conviction is recorded, the grant of

probation must be considered on all together footing than

the factors to be considered for recording an order of

conviction. In this regard, this Court places its reliance on

following cases:

i. In the case of Chandreshwar Sharma v. State

of Bihar reported in (2000) 9 SCC 245 at paragraph

No.3, it is held as under:

"3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 Kg. of non-ferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on

the cycle would not tantamount to recovery from the possession of the appellant, and this contention has been negatived and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice, Mr. Singh, the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of Section 360 of the CrPC. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the CrPC. As such, the mandatory duty cast on the Magistrate has not been performed.

Looking to the facts and circumstances of the present case, we see no reasons not to apply the

provisions of Section 360 of the CrPC. We accordingly, while maintain the conviction of the appellant, direct that he will be dealt with under section 360, and as such, we direct that the appellant be released on probation of good conduct instead of sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly."

ii. In the case of Gulzar v. State of M.P reported in

(2007) 1 SCC 619, it has been held as under:

"(A)........

(B) Probation of Offenders Act (20 of 1958), S.4 - Criminal P.C. (2 of 1974), S.360 - General Clauses Act (10 of 1897), S.8(1) - PROBATION OF OFFENDERS - GENERAL CLAUSES - OBJECT OF AN ACT - JUDGMENT - Benefit of probation - Scope of S. 4 of 1958 Act and S. 360 of Code - Different - Both statutes cannot co-exist at same time in same area.

Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the P.O. Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other matters while P.O. Act does make such a provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co- existence would lead to anomalous results...."

12. Applying the said principles to the case on

hand, since there is no previous criminal antecedents and

the incident has taken at the spur of the moment, learned

Magistrate ought to have considered grant of probation.

Therefore, this Court is of the considered opinion that non-

consideration of grant of probation to the revision

petitioners has resulted in serious miscarriage of justice.

Insofar as the contentions taken by the learned High Court

Government Pleader that the report of Probation Officer is

concerned, admittedly, after the incident there is no

complaint against the revision petitioners. The incident

said to have occurred on 28.04.2001 and 20 years have

elapsed thereafter. There is no complaint against the

revision petitioners of the similar nature in this regard.

At this stage only for getting report from the Probation

Officer, if the matter is remanded to the Magistrate, it

would only result in futile exercise. Accordingly, this Court

is of the considered opinion that the revision petitioners

have made out a case for grant of probation. Accordingly,

point No.2 is answered partly in the affirmative and the

following order is passed:

ORDER

1. Criminal Revision Petition is allowed-in-part.

2. While maintaining the conviction of the revision petitioners for the offence punishable under Section 506 of IPC, each of the revision petitioners are directed to pay fine of Rs.5,000/- inclusive of

Rs.2,000/- already imposed, with default sentence, simple imprisonment of two months and the Revision Petitioners are directed to execute a bond in a sum of Rs.25,000/- each with one surety for the likesum for their good behavior which shall be in force for two years. Time is granted to the revision petitioners to execute a bond and to pay the remaining fine on or before 20.11.2021.

It is submitted that Revision Petitioner Nos.1 and 2 are

in custody. Hence, after executing a bond and payment of

fine, learned Magistrate is directed to issue release order.

Ordered accordingly.

Sd/-

JUDGE

KA*