Rajasthan High Court - Jodhpur

Suresh Kumar vs State on 8 April, 2022

Bench: Pushpendra Singh Bhati

(1 of 7) [CRLR-617/1999]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 617/1999

Suresh Kumar

----Petitioner Versus State

----Respondent

For Petitioner(s) : Mr. Rajiv Bishnoi For Respondent(s) : Mr. Gaurav Singh PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

08/04/2022

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 has been preferred under

Section 397 read with Section 401 Cr.P.C. has been preferred

against the judgment dated 02.09.1999 passed by the learend

Additional Sessions Judge No.3, Udaipur in Original Criminal

Appeal No.14/99 (133/98), whereby while upholding the

conviction of the petitioner under Sections 454 & 380 IPC, as

recorded by the learned Additional Chief Judicial Magistrate No.2,

Udaipur in the judgment dated 11.11.1998 passed in Criminal

Original Case No.131/84, the sentence on each count has been

reduced to six months simple imprisonment and a fine of Rs.200/-

on each count, default of payment of which to further undergo

seven days simple imprisonment.

                                           (2 of 7)                [CRLR-617/1999]



2.1    The prayer made in the present petition reads as under:

"Under such circumstances, it is prayed that this revision may kindly be accepted and the petitioner be granted benefit of Provision of Section 4 of the Probation of Offenders Act as well as a direction be given that the petitioner's service shall not be affected by virtue of Section 12 of the Probation of Offenders Act."

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

1984 and the present appeal has been pending since 1999.

4. The offence under Section 380 IPC and Section 454 IPC, are

punishable, as per the Indian Penal Code, with imprisonment of

either description for a term which may extend to seven years and

shall also be liable to fine, and with imprisonment of either

description for a term which may extend to three years and shall

also be liable to fine, respectively. It is further provided in Section

454 IPC that if the offence intended to be committed is theft, the

term of the imprisonment may be extended to ten years.

5. Learned counsel for the accused-petitioner submits that on

the date of commission of the alleged offence, the accused-

petitioner was even below 18 years of age, and that he does not

have any previous criminal antecedents to his discredit.

6. Learned counsel for the accused-petitioner further submits

that the sentence awarded to the accused-petitioner was

suspended by this Hon'ble Court vide the order dated 10.09.1999,

passed in S.B. Criminal Misc. Petition (Suspension of Sentence)

No. 158/99, and thus, he is on bail.

7. Learned counsel for the accused-petitioner however, makes a

limited prayer that the accused-petitioner may be granted benefit

(3 of 7) [CRLR-617/1999]

under Section 4 of the Probation of Offenders Act, 1958

(hereinafter referred to as 'the Act'). Learned counsel also referred

to Section 6 of the Act.

Sections 4 & 6 of the Act read 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 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)...

(4)...

(5)... "

"6. Restrictions on imprisonment of offenders under twenty-one years of age.--

(4 of 7) [CRLR-617/1999]

(1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.

(2) For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in sub-section (1) the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender."

8. On the other hand, learned Public Prosecutor opposes the

appeal and submits that looking to the overall facts and

circumstances of the case and the well reasoned speaking order

passed by the learned court below, the accused-petitioner is not

entitled for any indulgence by this Court.

9. Heard learned counsel for the parties as well as perused the

record of the case.

10. In Jugal Kishore Prasad Vs. State of Bihar, (1972) 2

SCC 633, the Hon'ble Apex Court observed as under:

` "... Before, however, the benefit of the Act can be invoked, it has to be shown that the convicted person even though less than 21 years of age, is not guilty of an offence punishable with imprisonment for life. This is clear from the language of Section 6 of the Act."

(5 of 7) [CRLR-617/1999]

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

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

decision rendered in Masarullah v. State of Tamil Nadu,

(1982) 3 SCC 458 and Ishar Das v. State of Punjab, (1973)

2 SCC 65, held as under:

"... In Masarullah v. State of Tamil Nadu, (1982) 3 SCC 458 there are observations to the effect that "in case of an offender under the age of 21 years on the date of commission of the offence, the Court is expected ordinarily to give benefit of the provisions of the Act and there is an embargo on the power of the Court to award sentence unless the Court considers otherwise, 'having regard to the circumstances of the case including nature of the offence and the character of the offender', and reasons for awarding sentence have to be recorded... ... The rationale is that the underlying purpose of the provision being reformative - Section 6 being a special provision enacted to prevent the confinement of young persons under 21 years of age in jail, to protect them from the pernicious influence of hardened criminals...

... while Section 6 provides that a court "must not" sentence a person under the age of 21 years to imprisonment unless sufficient reasons for the same are recorded, based on due consideration of the probation officer's report. The relevant aspects while giving benefit under Section 6 of the Act are: the nature of offence, the character of the offender, and the surrounding circumstances as recorded in the probation officer's report..."

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

198, while reiterating the ratio decidendi laid down in Dalbir

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

(6 of 7) [CRLR-617/1999]

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..."

13. This Court is conscious of the fact that the accused-petitioner

was even below 18 years of age at the time of commission of the

alleged offence, as is reflected from the record of the case and the

punishment, which has been provided under the Indian Penal

Code for the offences under Sections 380 & 454 IPC, as

mentioned above, clearly makes the precedent law of Jugal

Kishore (supra) and Lakhvir Singh (supra) applicable in the

present case.

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

petitioner has any criminal antecedents. Thus, the accused-

petitioner is entitled to the benefit as per the mandatory

requirement of the Act.