Bansilal vs State And Ors
2022 Latest Caselaw 7904 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 360/2001

Bansilal

----Petitioner Versus State of Rajasthan & Ors

----Respondent Connected With S.B. Criminal Appeal No. 529/2001 Bansilal And Anr

----Petitioner Versus State of Rajasthan

----Respondent

For Petitioner(s) : Ms. Yogita Mohanani For Respondent(s) : Mr. Anda Ram Choudhary, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

26/05/2022

S.B. CRLR No.360/2001 :

Ms. Yogita Mohanani, after making submissions for some

time, does not want to press this revision, which is against

acquittal of non-petitioners No.2 to 4 from offences under Sections

147, 323, 323/149, 325, 325/149 I.P.C. in Criminal Case

No.483/97.

Consequently, the revision petition is dismissed as not

pressed.

S.B. CRLA No.529/2001

1. The present appeal is against conviction of accused-Banshi

Lal & Jagdish.

Counsel for the accused-appellants submits that the incident

is of the year 1997 and there were cross-cases, therefore, the

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accused-appellants be granted benefit under Section 4 of

Probation of Offenders Act as they have not other criminal

antecedents.

2. This Criminal Appeal has been preferred under Section

374(2) Cr.P.C. praying for the following reliefs:-

"It is, therefore, prayed that this Hon'ble Court will be pleased to send for the record of the lower court, peruse the same and after perusal, quash the conviction/sentences passed against the appellants, acquit them or pass any other orders that his Hon'ble Court deems fit and proper."

3. The matter pertains to an incident that occurred in the year 1997 and the present appeal has been pending since 2001.

4. Vide impugned judgment dated 18.08.2001 passed by

learned Additional Sessions Judge (Fast Track), Jodhpur in

Sessions Case No.06/01 convicted accused-appellant- Jagdish

under Sections 341 & 323 IPC and was sentenced to undergo six

months' R.I. for each; and accused-appellant -Bansilal for the

offences under Sections 307, 324 & 341 IPC and was sentenced as

under:-

307 IPC : 03 years' R.I. and a fine of Rs.1000/-

in default of payment of fine to further undergo 03 months' S.I.

324 IPC : 01 year's R.I. and a fine of Rs.1000/-

in default of payment of fine to further undergo 03 months' S.I.

341 IPC : 06 months' R.I.

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

appellants do not have any criminal antecedents to their credit.

6. Learned counsel for the accused-appellants further submits

that the sentence awarded to accused-appellants was suspended

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by this Hon'ble Court vide the order dated 27.08.2001 passed in

S.B. Criminal Bail Application No.471/2001, and thus, they are on

bail.

7. 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 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)...

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      (4)...
      (5)... "

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

appeal but does not oppose to grant of benefit under Probation of

Offenders Act as there are cross-cases and the matter being too

old 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.

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

record of the case.

10. 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. In Brij Lal Vs. State of Rajasthan RLW 2022 Raj 945, a

Coordinate Bench of this Court observed as under:-

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"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... "

11.1 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..."

11.2 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

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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."

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

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

accused-appellants are entitled to the benefit under the Probation

of Offenders Act, 1958.

12.1 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-appellants.

13. The present appeal, thus, is allowed as prayed and while

upholding the conviction order, the appellants are granted benefit

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under Section 4 of Probation of Offenders Act, which is particularly

necessary as appellant No.1 is an employee of Judicial Tribunal

and at the fag of service. He may suffer excessive injury in case

such benefit is not given, thus, the appellants are given benefit

under Section 4 of the Probation of Offenders Act.

It is needless to say that once the benefit under Section 4 of

Probation of Offenders Act is granted, the rigors of sentence shall

not apply on the present appellants as per the Section 12 of the

Probation of Offenders Act.

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

maintaining conviction of the present accused-appellant Bansilal

for the offences under Sections 307, 324 & 341 IPC & Jagdish

under Sections 341 & 323 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

appellants shall be released on probation, under Section 4 of the

Act, upon their 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 learned trial court with a further undertaking

that they shall maintain peace and good behaviour for a period of

two years and shall not repeat the offence. The appellants are on

bail. They need not surrender. Their bail bonds stand discharged

accordingly.

All pending applications stand disposed of. Record of the

learned court below be sent back forthwith.

(DR.PUSHPENDRA SINGH BHATI), J.

75-76-Nirmala/Sanjay-

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