Rajasthan High Court - Jodhpur
Damaram @ Damodarlal vs State Of Rajasthan on 13 April, 2022
Bench: Pushpendra Singh Bhati
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 409/1993
Damaram @ Damodarlal
----Appellant
Versus
State Of Rajasthan
----Respondent
For Appellant(s) : Mr.BS Rathore
For Respondent(s) : Mr. M.S. Bhati, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
13/04/2022
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 Appeal has been preferred under Section 374
Cr.P.C. praying for the following reliefs:-
"It is, therefore, prayed that the appeal be kindly
accepted, the conviction and sentence passed by the
lower court be set aside and the appellant be
acquitted."
3. The matter pertains to an incident that occurred in the year
1990 and the present appeal has been pending since 1993.
4. Vide impugned judgment dated 29.09.1993 the learned
Additional Sessions Judge, Sojat in Sessions Case No.118/92
(35/90) convicted the appellant for the offences under Sections 2
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of R.P.C.A Act & Section 3/25 of Arms Act and sentenced him to
undergo six months' S.I., along with a fine of Rs. 250/-, default in
payment of which he was to further undergo one month simple
imprisonment & sentenced him to undergo one year' S.I., along
with a fine of Rs. 200/-, default in payment of which he was to
further undergo one month simple imprisonment respectively.
5. Learned counsel for the accused-appellant submits that the
accused-appellant do not have any criminal antecedents to his
discredit.
6. Learned counsel for the accused-appellant further submits
that the sentence awarded to the accused-appellant(s) was
suspended by this Hon'ble Court vide the order dated 14.10.1993
passed in S.B. Criminal Misc. Suspension of Sentence Petition
No.397/1993, and thus, he is on bail.
7. Learned counsel for the accused-appellant further submits
that in case, if this Court is not inclined to acquit the appellant of
the charges levelled against him, that looking to his age, absence
of criminal antecedents against him, he is entitled to be extended
the benefit under Section 3 of the Probation of Offenders Act,
1958 (hereinafter referred to as 'the Act') and as per Section 360
Cr.P.C.
"3. Power of court to release certain offenders after
admonition.--
When any person is found guilty of having committed an
offence punishable under section 379 or section 380 or
section 381 or section 404 or section 420 of the Indian
Penal Code, (45 of 1860) or any offence punishable with
imprisonment for not more than two years, or with
fine, or with both, under the Indian Penal Code, or
any other law, and no previous conviction is proved
against him and the court by which the person is found
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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 so to do, then, notwithstanding anything
contained in any other law for the time being in force, the
court may, instead of sentencing him to any punishment or
releasing him on probation of good conduct under section 4,
release him after due admonition.
Explanation.--For the purposes of this section, previous
conviction against a person shall include any previous order
made against him under this section or section 4. "
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-appellant 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 Dalbir Singh Vs. State of Haryana (2000) 5 SCC 82
the Hon'ble Apex Court observed as under;-
"Parliament made it clear that only if the court forms
the opinion that it is expedient to release him on probation
for his good conduct regard being had to the circumstances
of the case. One of the circumstances which cannot be
sidelined in forming the said opinion is "the nature of the
offence."
Thus Parliament has left it to the court to decide when and
how the court should form such opinion. It provided
sufficient indication that releasing the convicted
person on probation of good conduct must appear to
the court to be expedient. The word "expedient" had
been thoughtfully employed by the Parliament in the
section so as to mean it as "apt and suitable to the end
in view". In Block's Law Dictionary the word "expedient" is
defined as "suitable and appropriate for accomplishment of
a specified object" besides the other meaning referred to
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earlier. In State of Gujarat v. Jamnadas G. Pabri & Ors.,
AIR (1974) SC 2233 a three Judge Bench of this Court has
considered the word "expedient''. Learned Judges have
observed in paragraph 21 thus:
"Again, the word 'expedient' used in this provisions,
has several shades of meaning. In one dictionary
sense, 'expedient' (adj.) means 'apt and suitable to
the end in view', 'practical and efficient'; 'politic';
'profitable'; 'advisable', 'fit, proper and suitable
to the circumstances of the case'. In another
shade, it means a device 'characterised by mere
utility rather than principle conducive to special
advantage rather than to what is universally right'
(see Webster's New International Dictionary)."
10.1 In Mohd. Hashim Vs. State of U.P. & Ors., (2017) 2 SCC
198, while reiterating the ratio decidendi laid down in Dalbir
Singh (supra), 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..."
12. This Court is conscious of the fact that the offence(s) under
Section 2 of R.P.C.A Act and Section 3/25 of Arms Act, as
mentioned above, is punishable with an imprisonment of two
years.
13. This Court observes that there is no material on record that
the accused-appellant has any criminal antecedents. Apart
therefrom, on an overall consideration of the facts and
circumstances of the case, the accused-appellant deserves to be
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granted the benefit under Section 3 of the Act, more particularly,
in view of the legislative intent of the Act.
13.2 Thus, this Court, after taking into due consideration the
legislative intent of the Act and the decisions rendered by the
Hon'ble Apex Court in Dalbir Singh (supra) and Mohd. Hashim
(supra), deems it appropriate to extend the benefit of the Act of
1958 to the accused-appellant.
14. Resultantly, the present appeal is partly allowed. While
maintaining the conviction of the present accused-appellant for
the offences under Sections Section 2 of R.P.C.A Act and Section
3/25 of Arms Act, as recorded by the learned Court below in the
impugned judgment, this Court interferes only with the sentence
part of the said judgment, and directs that the appellant shall be
released, after due admonition, under Section 3 of the Act. The
petitioner is on bail. He need not surrender. His bail bonds stand
discharged accordingly. All pending applications stand disposed of.
Record of the learned court below be sent back forthwith.
(DR.PUSHPENDRA SINGH BHATI), J.
19-Sudheer/-
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