Mohammad Israr vs State Of Rajasthan
2022 Latest Caselaw 5911 Raj

(1 of 5) [CRLAS-1266/2021]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 1266/2021

Mohammad Israr S/o Mohammad Gulzar, Aged About 48 Years, W.no. 11, Purani Abadi, Sriganganagar, Dist. Sriganganagar (Raj.).

----Appellant Versus State Of Rajasthan, Through Jd. V.v.n.l. Sriganganagar.

                                                                ----Respondent


For Appellant(s)         :     Mr. DS Gharsana
For Respondent(s)        :     Mr. SS Rajpurohit, PP
                               Mr. Pradeep Sharma

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

22/04/2022

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.

This Criminal Appeal has been preferred under Section

374(2) Cr.P.C. praying for the following reliefs:-

"It is, therefore, most humbly and respectfully prayed that this criminal appeal may kindly be allowed and judgment and conviction dated 12.11.2021 passed by the learned special judge (Electricity Theft Cases) Additional Session Judge No.1, Sriganganagar, District Srigangangar in Session Case and C.I.S. No.41/2009 (9928/2014) (State of Rajasthan Vs. Mohammad Israr), may kindly be set aside and appellant may be set at liberty; "

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Vide impugned judgment dated 12.11.2021 the learned

Special Judge( Electricity Act Cases Additional Sessions Judge,

No.1 Sriganganagar) in Criminal Case No.41/2009 (CIS

No.9928/2014 convicted the accused-appellant for the offence

under Section 135 of the Electricity Act, 2003 and sentenced him

to undergo 02 year S.I., along with a fine of Rs.10,000/- default in

payment of which he was to further undergo one months' S.I.;

Learned counsel for the accused-appellant further submits

that the sentence awarded to the accused-appellant was

suspended by this Hon'ble Court vide the order dated 20.12.2021

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

Application No.872/2021, and thus, he is on bail.

Learned counsel for the accused-appellant however, makes a

limited prayer that the accused-appellant may be granted benefit

under Section 4 of the Probation of Offenders Act, 1958

(hereinafter referred to as 'the Act').

"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

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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)... "

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.

Heard learned counsel for the parties as well as perused the

record of the case.

In Arvind Mohan Sinha Vs. Amulya Kumar Biswas

(1974) 4 SCC, the Hon'ble Apex Court observed as under:-

"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.

In recalcitrant cases, punishment has to be deterrent so that others similarly minded may warn themselves of the hazards of taking to a career of crime. But the novice who strays into the path of crime ought, in the interest of society, be treated as being socially sick. Crimes are not always rooted in criminal tendencies and their origin may lie in psychological factors

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induced by hunger, want and poverty. The Probation of Offenders act recognises the importance of environmental influence in the commission of crimes and prescribes a remedy whereby the offender can be reformed and rehabilitated in society."

In Brij Lal Vs. State of Rajasthan RLW 2022 Raj 945, a

Coordinate Bench of this Court observed as under:-

"Under Section 4 of the Probation of Offenders Act nature of offence is one of the major-criteria for determining whether benefit of this provision should be given to the concerned offender or not. His age would be another relevant factor and the circumstance in which the offence was committed may be 3rd important consideration... "

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 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..."

This Court observes that there is no material on record that

the accused-appellant has any criminal antecedents. Thus, the

accused-appellant is entitled to the benefit under the Probation of

Offenders Act, 1958.

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 Mohd. Hashim (supra) & Brij Lal

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(supra), deems it appropriate to extend the benefit of the Act to

the accused-appellant.

Resultantly, the present appeal is partly allowed. While

maintaining the conviction of the present accused-appellant for

the offence under Section 135 of the Electricity Act, 2003, 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 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 the satisfaction of the learned trial

court with a further undertaking that he shall maintain peace and

good behaviour for a period of two years and shall not repeat the

offence. The appellant is on bail. He need not surrender. His bail

bonds stand discharged accordingly. However, the respondent

shall be entitled to recover the amount of civil liability from the

appellant, in strict accordance with law.

All pending applications stand disposed of. Record of the

learned court below be sent back forthwith.

(DR.PUSHPENDRA SINGH BHATI), J.

166-Sudheer/-

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