Rajasthan High Court - Jodhpur

Satya Narain Sankhla vs State on 10 May, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 124/2001

Satya Narain

----Petitioner Versus State of Rajasthan

----Respondent Connected With S.B. Criminal Revision Petition No. 121/2001 Satya Narain

----Petitioner Versus State of Rajasthan

----Respondent

For Petitioner(s) : Mr. Manoj Pareek for Mr. Gajendra Singh Rathore For Respondent(s) : Mr. Arun Kumar, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

10/05/2022

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.

S.B. CRLR No.124/2001

1. This Criminal Revision Petition has been preferred under

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

"It is, therefore respectfully prayed that this revision petition may kindly be accepted and Sessions Judge, Ratangarh, dated 13.02.2001 be quashed and set aside and the accused petitioner be acquitted of the offences

(2 of 13) [CRLR-124/2001]

under Section 409 IPC. Alternatively, it is prayed that the substantive sentence awarded in this case may kindly be ordered to run concurrently with the sentence passed in Criminal Appeal No.10/97 by the learned Additional Sessions Judge, Ratangarh, vide judgment and order dated 13.02.2001."

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

1979 and the present revision petition has been pending since

2001.

3. Vide impugned judgment dated 05.11.1992 the learned

Additional Judicial Magistrate, Churu in Criminal Case No.335/92

convicted revisionist-petitioner for the offence under Section 409

IPC sentenced to undergo three years' R.I. and a fine of Rs.6000/-

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

six months' additional imprisonment.

4. Vide impugned judgment dated 13.02.2001 in Criminal

Appeal No.10/97 the sentence awarded to petitioner was reduced

to one year's R.I. but the sentence of fine and imprisonment in

default were maintained.

5. Learned counsel for the revisionist-petitioner submits that

the offence under Section 409 IPC are punishable with a

maximum imprisonment up to ten years, therefore, the petitioner

may be granted benefit of Section 4 of the Probation of Offenders

Act, 1958.

6. Learned counsel for the revisionist-petitioner submits that

the petitioner do not have any criminal antecedents to his

discredit.

7. Learned counsel for the revisionist-petitioner further submits

that the sentence awarded to the petitioner was suspended by this

(3 of 13) [CRLR-124/2001]

Hon'ble Court vide the order dated 08.03.2001, passed in S.B.

Criminal Misc. Bail Application No.22/2001 and thus, he is on bail.

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

a limited prayer that the 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 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)...

                                               (4 of 13)                   [CRLR-124/2001]


      (5)... "

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 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 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."

11.1 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

(5 of 13) [CRLR-124/2001]

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... "

11.2 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..."

11.3 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, 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

(6 of 13) [CRLR-124/2001]

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."

12. This Court is conscious of the fact that the maximum

punishment that may be awarded under Section 409 IPC is up to

10 years and, therefore, Section 4 of the Act of 1958 will apply in

the present case.

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

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

revisionist-petitioner is entitled to the benefit under the Probation

of Offenders Act, 1958.

13.1 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 revision-petitioner.

(7 of 13) [CRLR-124/2001]

14. Resultantly, the present revision petition is partly allowed.

While maintaining the conviction of the present revisionist-

petitioner for the offence under Section 409 IPC, 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 petitioner 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

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.

S.B. CRLR No.121/2001

1. This Criminal Revision Petition has been preferred under

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

"It is, therefore respectfully prayed that this revision petition may kindly be accepted and the judgment and order of the learned Additional Sessions Judge, Ratangarh, dated 13.02.2001be quashed and set aside and the accused-petitioner be acquitted of the offences under Section 409 IPC."

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

1980 and the present revision petition has been pending since

2001.

3. Vide impugned judgment dated 28.01.1988 the learned

Additional Chief Magistrate, Churu in Criminal Case No.328/80

convicted revisionist-petitioner for the offence under Section 409

(8 of 13) [CRLR-124/2001]

IPC sentenced to undergo three years' R.I. and a fine of Rs.500/-

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

six months' S.I.

4. Vide impugned judgment dated 13.02.2001 in Criminal

Appeal No.9/97 the sentence awarded to petitioner was reduced to

one year's R.I. but the sentence of fine and imprisonment in

default were maintained.

5. Learned counsel for the revisionist-petitioner submits that

the offence under Section 409 IPC are punishable with a

maximum imprisonment up to ten years, therefore, the petitioner

may be granted benefit of Section 4 of the Probation of Offenders

Act, 1958.

6. Learned counsel for the revisionist-petitioner submits that

the petitioner do not have any criminal antecedents to his

discredit.

7. Learned counsel for the revisionist-petitioner further submits

that the sentence awarded to the petitioner was suspended by this

Hon'ble Court vide the order dated 08.03.2001, passed in S.B.

Criminal Misc. Bail Application No.21/2001 and thus, he is on bail.

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

a limited prayer that the 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

(9 of 13) [CRLR-124/2001]

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)... "

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 Arvind Mohan Sinha Vs. Amulya Kumar Biswas

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

(10 of 13) [CRLR-124/2001]

"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 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."

11.1 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... "

11.2 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..."

(11 of 13) [CRLR-124/2001]

11.3 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, 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

(12 of 13) [CRLR-124/2001]

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."

12. This Court is conscious of the fact that the maximum

punishment that may be awarded under Section 409 IPC is up to

10 years and, therefore, Section 4 of the Act of 1958 will apply in

the present case.

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

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

revisionist-petitioner is entitled to the benefit under the Probation

of Offenders Act, 1958.

13.1 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 revision-petitioner.

14. Resultantly, the present revision petition is partly allowed.

While maintaining the conviction of the present revisionist-