Rajasthan High Court - Jodhpur

Anupam vs State on 2 May, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 174/2000

Anupam

----Petitioner Versus State of Rajasthan

----Respondent

For Petitioner(s) : Ms. Sumeha Kalla for Mr. Sanjay Mathur For Respondent(s) : Mr. Mukesh Trivedi, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order 02/05/2022

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 Revision Petition has been preferred under Section

397/401 Cr.P.C. praying for the following reliefs:-

"It is, therefore, humbly prayed that this revision petition may kindly be accepted and allowed. The judgment dated 18.04.2000 passed by the Additional Sessions Judge No.3, Udaipur in criminal appeal No.23/99 against the judgment dated 14.10.1999 passed by Additional Chief Judicial Magistrate No.1, Udaipur in criminal regular case No.679/99 may kindly be quashed and set aside."

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

1996 and the present revision petition has been pending since

2000.

4. This Criminal Revision Petition has been preferred against

the impugned judgment dated 18.04.2000 passed by learned

Additional Sessions Judge, No.3, Udaipur whereby the judgment

dated 14.10.1999 passed by learned Additional Chief Judicial

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Magistrate, No.1 Udaipur in Criminal Original Case No.679/99

convicting the revisionist-petitioner under Sections 279 & 304-A

IPC and sentenced to undergo 06 months R.I. & 02 years R.I.

respectively was upheld. The same was modified vide order dated

18.04.2000 to the extent that the petitioner was sentenced to

undergo 06 months S.I. & 01 year S.I. respectively.

5. The offences under Sections 279 & 304-A IPC are punishable

with an imprisonment for up to six months & up to two years

respectively, therefore, benefit of Section 3 of the Probation of

Offenders Act, 1958 (while considering Section 6) be granted to

the petitioner.

6. Learned counsel for the revisionist-petitioner submits that at

the time of occurrence of the alleged incident, the revisionist-

petitioner was 21 years of age and that he does not have any

criminal antecedents to his discredit.

7. Learned counsel for the revisionist-petitioner further submits

that the sentence awarded to the revisionist-petitioner was

suspended by this Hon'ble Court vide the order dated 24.05.2000,

passed in S.B. Criminal Misc. Bail No.52/2000 and thus, he is on

bail.

8. Learned counsel for the revisionist-petitioner however, makes

a limited prayer that the revisionist-petitioner may be granted

benefit under Section 3 of the Probation of Offenders Act, 1958

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

to Section 6 of the Act.

Sections 3 & 6 of the Act read as under:-

"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

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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 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. "

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

(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."

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

revision petition 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 revisionist-petitioner is not

entitled for any indulgence by this Court.

10 Heard learned counsel for the parties as well as perused the

record of the case.

11. 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."

12. 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

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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..."

13. 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..."

14. This Court is conscious of the fact that the revisionist-

petitioner was 21 years of age at the time of commission of the

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

the offences under Sections 279 & 304-A IPC, as mentioned

above, are punishable with an imprisonment for up to six months

& up to two years respectively, which clearly makes the precedent

law of Jugal Kishore (supra) and Lakhvir Singh (supra)

applicable in the present case.

14.1 Further, there is no material on record that the revisionist-

petitioner has any criminal antecedents. Thus, the revisionist-

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petitioner is entitled to the benefit as per the mandatory