Karnataka High Court

The State Of Karnataka vs Sanju S/O Shankerappa And Anr on 27 January, 2022

Bench: V Srishananda

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 27TH DAY OF JANUARY, 2022

                       BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.200060/2017


BETWEEN:

THE STATE OF KARNATAKA
THROUGH RURAL P.S.RAICHUR,
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
OFFICE OF THE ADVOCATE GENERAL
 KALABURAGI BENCH AT KALABURAGI.    ...PETITIONER

(BY SRI SHARANABASAPPA M. PATIL, HCGP.)

AND:

1 . SANJU S/O SHANKERAPPA
AGE:36 YEARS, OCC:COOLIE,
R/O ALIAMBER, TQ. & DIST.BIDAR.

2 . SANJUKUMAR, S/O VAIJINATH
AGE:38 YEARS, OCC:PRIVATE WORK,
R/O SIDDAPUR, TQ & DIST.BIDAR. ...     RESPONDENT

(BY SRI. ISHWARAJ CHOWDAPUR, ADV.)

   THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C
PRAYING TO, CALL FOR THE RECORDS AND ALLOW THIS
REVISION PETITION BY SETTING ASIDE THE IMPUGNED
JUDGMENT AND ORDER DATED:06.02.2017 PASSED BY
THE PRINCIPAL DISTRCT AND SESSIONS JUDGE, BIDAR
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IN CRIMINAL APPEAL NO.52/2016 INSOFAR AS SENTENCE
OF IMPRISONMENT IS CONCERNED AND CONFIRM THE
SENTENE OF IMPRISONMENT PASSED BY THE TRIAL
COURT DATED:24.09.2016 PASSED IN C.C.NO.1239/2014,
ON THE FILE OF THE PINCIPAL CIVIL JUDGE AND JMFC-II,
BIDAR, IN THE INTEREST OF JUSTICE AND EQUITY.

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

                         ORDER

1. The present Revision Petition is by the State,

challenging the order passed in Criminal Appeal

No.52/2016 dated 6.2.2017 passed by the Principal District

and Sessions Judge, Bidar, whereby the order of conviction

passed in CC No.1239/2014 dated 24.9.2016 came to be

confirmed, and the sentence of imprisonment was set

aside by ordering additional compensation of `50,000/- to

be paid to PW-1 in addition to the amount of compensation

awarded by the Trial Court.

2. The operative portion of the First Appellate

Court reads as under:

(i) The Criminal Appeal No. 52/2016 is hereby partly allowed.

(ii) The judgment of conviction dated 24.09.2016 passed in CC No.1239/2014 passed by the Principal Civil Judge and JMFC-II, Bidar is hereby confirmed.

(iii) The order on sentence passed dated 24.09.2016 by the Court of Principal Civil Judge and JMFC-II, Bidar so far as suffering sentence of imprisonment is hereby set aside. The order of sentence of payment of fine is kept intact.

(iv) The Accused No.1 and 2 shall pay compensation of Rs.50,000/- to the PW-1 in addition to amount of compensation awarded by the Trial Court as per Section 357 of Cr.PC.. The amount of compensation shall be paid to Accused No.1 and 2 within a period of three months from today.

(v) If Accused No.1 and 2 fails to pay compensation of Rs.50,000/- to the PW-1 within a

shall undergo simple imprisonment for a period of one month.

(vi) The learned Magistrate to take recourse to make the accused Nos.1 & 2 under Probation of Offenders Act and take necessary bonds etc.,"

3. In the revision, following grounds have been

raised:

¾ That, the impugned order dated 6.2.2017 passed by the learned Principal Sessions Judge, Bidar so far as suffering sentence of imprisonment is concerned giving benefit of Probation of Offenders Act is totally illegal, erroneous and as such, same is liable to be set aside.

¾ That, the reasons assigned by the learned Principal Sessions Judge, Bidar while passing the impugned order are erroneous and as such he has slipped into an error and passed impugned order resulting in substantial miscarriage of justice to the case of the-prosecution.

¾ It is submitted that, the trial Court after appreciating the entire evidence has rightly convicted the accused/respondents and has rightly sentenced them to suffer imprisonment as per provisions of law, but the learned Sessions Judge, by taking an erroneous view of the facts and circumstances of the case has erroneously passed the impugned order giving benefit of Probation of Offenders Act and modified the suffering of sentence. Hence, sarne deserves to be set aside.

¾ It is also relevant to submit that, the trial Court after proper appreciation of evidence of prosecution witnesses i.e. PWs.l to 5, 7 8 which corroborated each others evidence has rightly convicted and sentenced to suffer imprisonment, but the learned Sessions Judge has not assigned proper and factual reasons for modifying the sentence.

¾ It is also relevant to submit that, the trial Court after hearing on sentence has clearly observed that, the benefit of Probation of Offenders Act is not extended to accused persons as the offence committed are against the society and have not found any good grounds to extend the benefit of Probation of Offenders Act. When such being the Situation. the learned Sessions Judge without appreciating the evidence of material witnesses has blindly extended the benefit of Probation of Offenders Act and erroneously modified the sentence. Hence, the same is liable to be set aside and consequently sentence imposed by the trial Court be confirmed.

¾ Thus, viewed from any angle, the order of the learned Principal District and Sessions Judge, Raichur is illegal, improper and deserves to be set aside."

4. Re-iterating the above grounds, learned High

Court Government Pleader contended that the witnesses

have supported the case of the prosecution, which has

been rightly appreciated by the learned Trial Magistrate

and passed an order of conviction and sentenced to

undergo imprisonment and fine, which has not been

properly re-appreciated by the learned Judge in the First

Appellate Court and passed the modified order passed by

the learned Trial Magistrate, which is incorrect and sought

for allowing the Revision Petition.

5. Per contra, Sri Ishwaraj Chowdapur, learned

counsel representing the respondent/accused contended

that the First Appellate Court had every power under the

provisions of the Probation of Offenders Act, as the

accused Nos.1 & 2 are not habitual offenders and

therefore, rightly granted the benefit of PO Act and

ordered additional compensation which the

respondent/accused was ready to pay within a reasonable

time.

6. He also pointed out that the Trial Court has

insisting an order from this court extending the time to pay

the compensation as the revision petition is now filed by

the State belatedly and therefore, seeks time to pay the

compensation amount till 10.02.2022.

7. In view of the rival contentions, the sole point

that would arise for consideration is -

"Whether the State has made out a case

to interfere with the order passed by the

learned District Judge in Criminal Appeal

No.52/2016 ?"

8. In the case on hand, the conviction of accused

persons for the offences punishable under Sections 323,

324 and 504 read with Section 34 of IPC has become final

inasmuch as accused persons have not challenged the

order of conviction which was confirmed by the learned

Judge in the first Appellate Court in Criminal Appeal

No.52/2016. The State has preferred this revision petition

only with regard to the grant of probation to the accused

by the first appellate court.

9. It is pertinent to note from the order of the

learned Magistrate on sentence that the learned Magistrate

has passed an order that benefit of the Probation of

Offenders Act is not extended to the accused as the

offence committed by the accused persons are against the

society and there is no good grounds to extend the benefit

to Probation of Offenders Act.

10. It is pertinent to note that the role to be

played by a Judge while passing an order of conviction is

all together different from the role to be played while

passing an order of sentence.

11. Further, whenever the accused persons are

first time offenders without there being any criminal

antecedents, the convicting court is bound to consider the

grant of probation which is a mandatory duty. In this

regard this court gainfully places its reliance on the

decisions of the Hon'ble Apex Court 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 Cr.P.C. 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 Cr.P.C. 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."

and in the case of Gulzar v. State of M.P reported in

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

"12. 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 PO 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 the PO Act does make such a provision. While Section 12 of the PO Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the PO Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel 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. The intention to retain the provisions of Section 360 of the Code and the provisions of the PO Act, as applicable at the same time in a given area, cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable".

12. Appling the above principles, learned Judge in

the first Appellate court rightly exercised the powers

vested in it under the provisions of the Probation of

Offenders Act and modified the sentence passed by the

trial court. While so doing, the first Appellate Court was

also of the opinion that injured persons are to be

sufficiently compensated and therefore, ordered to pay

compensation of `50,000/- to PW.1 in addition to the

compensation awarded by the learned trial Magistrate.

13. A submission is made on behalf of the accused

persons by Sri Eashwaraj Chowdapur that the accused

persons are ready to pay the additional fine amount and