Rajasthan High Court - Jodhpur

Bagdawat Ram And Ors vs State on 18 May, 2022

Bench: Pushpendra Singh Bhati

(1 of 7) [CRLA-368/1991]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 368/1991

Bagdawat Ram And Ors.

                                                                   ----Appellant
                                    Versus
State of Rajasthan
                                                                 ----Respondent


For Appellant(s)          :     Mr. BS Rathore
For Respondent(s)         :     Mr. SK Bhati, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

18/05/2022

1. This Criminal Appeal has been preferred under Section 374

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

"Hence, it is prayed that the appeal may kindly be allowed, conviction passed against the appellants be set-aside and the appellants be ordered to be acquitted of the charge"

2. Although there are conflicting reports about death, but

counsel for the appellant Mr. BS Rathore makes a statement at Bar

that he has instructions from appellants No.1 & 4 as they are

alive. The death of respondents No.2 & 3 is already recorded.

3. Counsel for the appellant submits that the incident is of year

1982 and is about 30 years old. The maximum sentence awarded

is of three years' RI and thus, the appellants be given benefit

under Section 4 of the Probation of Offenders Act.

(2 of 7) [CRLA-368/1991]

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

1982 and the present appeal has been pending since 1991.

5. Vide impugned judgment dated 30.10.1991 the learned

Additional Sessions Judge, No.1, Jodhpur in Sessions Case

No.32/85 convicted accused-appellants for the offence under

Section 395 IPC and were sentenced to undergo three years' R.I.

and a fine of Rs. 100/- in default of payment of which they further

ordered to undergo seven days' S.I.

6. Learned counsel for the accused-appellants submits that the

offence under Section 395 IPC is punishable with a maximum

imprisonment up to ten years, therefore, the appellant may be

granted benefit of Section 4 of the Probation of Offenders Act,

1958.

7. Learned counsel for the accused-appellants submits that the

appellants do not have any criminal antecedents to their discredit.

8. Learned counsel for the accused-appellants further submits

that the sentence awarded to the accused-appellants was

suspended by this Hon'ble Court vide the order dated 19.12.2000,

and thus, they are on bail.

9. Learned counsel for the accused-appellants however, makes

a limited prayer that the accused-appellants 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

(3 of 7) [CRLA-368/1991]

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)... "

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

present 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 -appellants are

not entitled for any indulgence by this Court.

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

record of the case.

12. In Arvind Mohan Sinha Vs. Amulya Kumar Biswas

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

(4 of 7) [CRLA-368/1991]

"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."

13. 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... "

13.1 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..."

(5 of 7) [CRLA-368/1991]

13.2 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

(6 of 7) [CRLA-368/1991]

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."

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

punishment that may be awarded under Section 395 IPC is

punishable with a maximum imprisonment up to ten years,

therefore, Section 4 of the Act of 1958 will apply in the present

case.

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

the accused-appellants have any criminal antecedents. Thus, the

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

Offenders Act, 1958.

15.1 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-appellant.

16. Resultantly, the present appeal is partly allowed. While

maintaining the conviction of the present accused-appellants for