Rajasthan High Court - Jodhpur

Maga Ram vs State on 1 April, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 94/1998

Maga Ram

----Petitioner Versus State

----Respondent

For Petitioner(s) : Mr. L.D. Khatri For Respondent(s) : Mr. Mukesh Trivedi

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

01/04/2022

1. In the wake of instant surge in COVID - 19 cases and spread

of its highly infectious Omicron variant,abundant caution is being

maintained, while hearing the matters in the Court, for the safety

of all concerned.

2. This criminal revision petition under Section 397 read with

Section 401 Cr.P.C. has been preferred claiming the following

reliefs:

"It is therefore respectfully prayed that this revision petition may kindly be allowed and judgment and order dt. 29.1.98 passed by the learned Sessions Judge, Jaisalmer in criminal appeal no. 29/95 and judgment and order dt. 9.11.05 passed by the learned Chief Judicial Magistrate, Jaisalmer in cirminal original case no. 387/80 may kindly be set aside and petitioner may kindly be acquitted for the offence u/s. 408 and 471 IPC. In the alternative, it is prayed that the petitioner may be released on probation or sentence may be reduced till he underwent."

3. The matter pertains to an incident which occurred in the year

1978 and the present petition is pending since the year 1998.

(2 of 6) [CRLR-94/1998]

4. Brief facts of the case as placed before this Court by the

learned counsel for the petitioner are that the Tejmatta Gram Seva

Sahakari Samiti ("the Samiti") received an agricultural loan for

their members each to the sum of Rs. 1000/- from the Rajasthan

State Cooperative Bank Ltd, the total amount of which was Rs.

51,000/- which was allegedly withdrawn by the petitioner from the

said bank, since he was the 'mantri' of the Samiti along with the

co - accused Mohanlal who was posted as an Assistant Inspector.

And that, the money so withdrawn was allegedly not disbursed

amongst the beneficiaries for whom it was intended, but was

allegedly embezzeled by the accused persons, after creating a

forged cash book whereby signatures of the beneficiaries were

forged.

5. Learned counsel for the petitioner submits that a charge-

sheet was filed against Mohanlal under Sections 408, 468, 471

read with 114 I.P.C. and that the petitioner was in fact, not

arrested and his charge-sheet was filed under Section 299 Cr.P.C.

However, that subsequently, the learned Trial Court framed

charges, against Mohanlal under Sections 406, 468 and 471 read

with 114 I.P.C. and against the petitioner under Sections 406, 468

and 471 I.P.C.

6. Learned counsel for the petitioner also submits that the

petitioner and the co - accused were both convicted by the

learned Trial Court, vide order dated 09.11.1995, under Sections

408, 468 and 471 I.P.C. and sentenced to simple imprisonment of

5 years, 3 years, and 3 years each with fines totaling Rs.10,200/-

and Rs. 2,200/- respectively, with a direction that the sentences

were to run concurrently.

(3 of 6) [CRLR-94/1998]

7. Learned counsel for the petitioner further submits that both

the accused preferred appeals before the learned Sessions Court,

whereby the Court suspended he sentences of the accused, and

vide its judgment dated 29.01.1998, allowed the appeal preferred

by the co-accused Mohanlal and acquitted him of all charges, while

the appeal of the petitioner was only partly allowed to the extent

that he was only acquitted for the charge under Section 468 I.P.C.

and the remainder of the conviction and sentence was maintained.

8. Learned counsel for the petitioner also submits that the

learned Sessions Court has erred in distinguishing the case of the

petitioner from that of the co-accused Mohanlal, who was

acquitted from all charges, and that, the petitioner has undergone

a custody for a period of 4 months 22 days. Learned counsel also

submits that the petitioner is on bail in pursuance of the order

dated 13.02.1998 passed by this Hon'ble Court in S.B. Cr.Misc.

Bail Application No.69/1998, whereby the sentence awarded to the

petitioner was suspended.

9. Heard learned counsel for both parties and perused the

record of the case.

10. In Arvind Mohan Sinha Vs. Amulya Kumar Biswas,

(1974) 4 SCC 222, the Hon'ble Apex Court has held, "the

Probation of Offenders Act is a reformative measure and its object

is to reclaim amateur offenders who, if spared the indignity of

incarceration, can be usefully rehabilitated in society"; further

observed, "Crimes are not always rooted in criminal tendencies

and their origin may lie in psychological factors induced by

hunger, want and poverty."

11. In Mohd. Hashim Vs. State of U.P. & Ors., (2017) 2 SCC

198, while reiterating the ratio decidendi laid down in Dalbir

(4 of 6) [CRLR-94/1998]

Singh Vs. State of Haryana, (2000) 5 SCC 82, the Hon'ble

Apex Court observed as under:

"... The Court has further opined that though the discretion as been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient... ... Section 4 can be resorted to when the court considers the circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct."

12. In Lakhvir Singh & Ors. The State of Punjab & Ors.,

(2021) 2 SCC 763, the Hon'ble Apex Court, while referring to the

decision rendered in CCE v. Bahubali, (1979) 2 SCC 279,

observed as under:

"13. Even though, Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the PC Act') prescribes a minimum sentence of imprisonment for not less than 1 year, an exception was carved out keeping in mind the application of the Act. In Ishar Das (supra), this Court noted that if the object of the legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed, there was no reason to specifically provide an exception for Section 5(2) of the PC Act. The fact that Section 18 of the Act does not include any other such offences where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other

(5 of 6) [CRLR-94/1998]

offences. A more nuanced interpretation on this aspect was given in CCE vs. Bahubali, (1979) 2 SCC

279. It was opined that the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non-obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act. It is in this context, it was observed in State of Madhya Pradesh vs. Vikram Das (Supra) that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We are of the view that the corollary to the aforesaid legal decisions ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence under Section 397 of IPC, the offence in the present case. In fact, the observation made in Joginder Singh vs. State of Punjab, ILR (1981) P&H 1 are in the same context."

13. This Court observes that the petitioner, was acquitted from

the charge under Section 468 I.P.C. by the learned Sessions

Court, vide the impugned order dated 19.01.1998, granting him

the benefit of doubt while upholding the convictions under

Sections 408 and 471 I.P.C.

14. This Court is conscious of the fact that the maximum

imprisonment, under Section 408 I.P.C. is 7 years, and under

Section 471 I.P.C. is 2 years as under 465 I.P.C. 13.1

Further, there is no material on record that the accused-petitioner

is having any previous criminal antecedents. Thus, the accused-

petitioner deserves to be granted the benefit under Section 4 of

the Act.

                                                                               (6 of 6)                  [CRLR-94/1998]



                                   14.1    Thus, this Court, after taking into due consideration the

legislative intent of the Act and the decisions rendered by the

Hon'ble Court in Arvind Mohan Sinha (supra) Mohd. Hashim

(supra) and Lakhvir Singh (supra), deems it appropriate to

extend the benefit of the Act to the accused-petitioner.

15. Resultantly, the present petition is partly allowed. While

maintaining the conviction of the present accused-petitioner for

the offence under Sections 408 & 471 IPC, as recorded by the

learned trial court in the impugned judgment, this Court interferes

only with the sentence part of the said judgment, and directs that

the petitioner shall be released on probation, under Section 4 of

the Act, upon his furnishing a personal bond in the sum of

Rs.50,000/- and two sureties in the sum of Rs.25,000/- each to