Rajasthan High Court - Jodhpur

Harish Kumar @ Hari Singh vs State on 13 May, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 660/1999

Harish Kumar @ Hari Singh

----Petitioner Versus State

----Respondent

For Petitioner(s) : Mr. Vishal Singhal For Respondent(s) : Mr. AR Choudhary, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

13/05/2022

1. This Criminal Revision Petition has been preferred under

Section 374 Cr.P.C. praying for the following reliefs:-

"It is, therefore, most respectfully prayed that the revision petition may kindly be allowed and the impugned judgments and order of conviction passed by the two courts below on 18.03.1999 and 15.09.1999 respectively quashed and set aside and the accused be acquitted of the offences punishable under Sections 457 & 381 IPC."

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

1996 and the present appeal has been pending since 1999.

3. This criminal revision petition under Section 397 read with

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

dated 15.09.1999 passed by learned Additional Sessions Judge

No.1, Sriganganagar in Criminal Appeal No.53/99 whereby the

judgment dated 18.03.1999 passed by the learned Additional

Chief Judicial Magistrate, Srigangangar in Criminal case No.12/97

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convicting the revisionist-petitioner was upheld. The petitioner was

convicted for the offences under Sections 457 & 381 of IPC and

was sentenced to undergo 6 months and a fine of Rs.100/- in

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

one month S.I. and was sentenced to undergo 6 months and a

fine of Rs.100/- in default of payment of which, he was ordered to

undergo further one month S.I. respectively.

4. Learned counsel for the accused-petitioner submits that the

accused-petitioner do not have any criminal antecedents to his

discredit.

5. Learned counsel for the accused-petitioner further submits

that the sentence awarded to the accused-petitioner was

suspended by this Hon'ble Court vide the order dated 28.10.1999

passed in S.B. Criminal Misc. Petition No. 164/99 and thus, he is

on bail.

6. Learned counsel for the accused-petitioner however, makes a

limited prayer that the accused-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

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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 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-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 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... "

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, 1958

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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 accused-petitioner has any criminal antecedents. Thus, the

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

Offenders Act, 1958.

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                                   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 accused-petitioner.

11. Resultantly, the present petition is partly allowed. While

maintaining the conviction of the present accused-petitioner for

the offence under Sections 457 & 384 of 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