Rajasthan High Court - Jodhpur

Bhanwar Dan vs State on 5 May, 2022

Bench: Pushpendra Singh Bhati

(1 of 6) [CRLR-280/2001]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 280/2001

Bhanwar Dan

----Petitioner Versus State

----Respondent

For Petitioner(s) : Mr. Abhishek Charan For Respondent(s) : Mr. Mukhtiyar Khan, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

05/05/2022

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

1995 and the present revision petition has been pending since

2001.

3. This criminal revision petition under Section 397 read with

Section 401 Cr.P.C. has been preferred against the judgment

dated 17.05.2001 passed by learned Sessions Judge, Jaisalmer in

Criminal Appeal No.01/2001 whereby the judgment dated

12.12.2000 passed by the learned Judicial Magistrate, 1st Class,

Jaisalmer in Criminal Original Case No.432/1996 convicting the

revisionist-petitioner was upheld. The petitioner was convicted for

the offences under Sections 409 IPC and sentenced to undergo

two years' S.I. and a fine of Rs.2,000/-in default of payment of

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which, he was ordered to undergo further one month's S.I. Vide

the impugned judgment dated 17.05.2001 though the judgment

of learned trial court to the extent of Section 409 of IPC was

affirmed, the same was modified to the extent that the petitioner

was sentenced to undergo one year's S.I. and a fine of Rs.2000/-

in default of payment of which, he was ordered to undergo further

one month's S.I. The offence(s) under Section(s) 409 IPC, with

imprisonment for life or with imprisonment of either description

for a term which may extend to ten years and shall also be liable

to fine.

4. Learned counsel for the revisionist-petitioner submits that

the revisionist-petitioner do not have any criminal antecedents to

his discredit.

5. 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 28.05.2001,

and thus, he is on bail.

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

a limited prayer that the revisionist-petitioner 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

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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)... "

7. On the other hand, learned Public Prosecutor opposes and

submits that looking to the overall facts and circumstances of the

case and the well reasoned speaking order passed by the learned

courts below, the revisionist-petitioner is not entitled for any

indulgence by this Court.

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

record of the case.

9. 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

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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 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."

9.1 In Brij Lal Vs. State of Rajasthan RLW 2002 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... "

9.2 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..."

9.3 In Lakhvir Singh and Ors. Vs. The State of Punjab and

Ors. (2021) 2 SCC 763 wherein the Hon'ble Apex Court of India,

with regard to the application of the Probation of Offenders Act,

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1958 vis-a-vis those Acts wherein a minimum sentence of

imprisonment has been prescribed by the legislature, observed as

under:-

"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 offences. A more nuanced interpretation on this aspect was given in CCE v. 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.5 It is in this context, it was observed in State of Madhya Pradesh v. 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 Indian Penal Code, the offence in the present case. In fact, the observation made in Joginder Singh v. State of Punjab ILR (1981) P & H 1 are in the same context."

10. This Court observes that there is no material on record that

the petitioner has any criminal antecedents. Thus, the revisionist-

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petitioner is entitled to the benefit under the Probation of

Offenders Act, 1958.

10.1 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 Arvind Mohan (supra), Mohd. Hashim

(supra) and in Lakhvir Singh, and by this Hon'ble Court in Brij

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

to the revisionist-petitioner.

11. In light of the limited prayer made on behalf of the