Rajasthan High Court - Jodhpur

Sanjeev Kumar vs State on 9 November, 2022

Bench: Pushpendra Singh Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 897/2017 Sanjeev Kumar Sharma S/o Sh. Sita Ram Sharma, By Caste Brahmin, Resident Of Kastoorba Colony, Jalore Raj.

                                                                  ----Appellant
                                   Versus
State Of Rajasthan
                                                                ----Respondent


For Appellant(s)         :     Mr. Pradeep Shah.
                               Mr. CS Rathore.
For Respondent(s)        :     Mr. Mahipal Bishnoi, PP.
                               Mr. Vikram Choudhary.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

09/11/2022

1. This Criminal Appeal has been preferred under Section

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

"It is, therefore, most humbly prayed that your Lordships may graciously be pleased to allow this criminal appeal and the impugned judgment and order dated 14.06.2017 passed by learned Special Judge, Electricity Act Cases, Jalore, convicting and sentencing the appellant for the offence under Sections 138 of the Act of 2003, may kindly be quashed and set aside and the appellant may kindly be acquitted for the said offence."

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

2013 and the present appeal has been pending since 2017.

3. Vide impugned judgment dated 14.06.2017, the learned

Special Judge, Electricity Act Cases, Jalore in Session Case

No.5/2013 convicted the accused-appellant for the offence under

Section 138 of Electricity Act and sentenced him to undergo one

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year imprisonment, along with a fine of Rs. 10,000/-, default in

payment of which he was ordered to further undergo three

months' simple imprisonment.

4. Learned counsel for the appellant has pointed out that the

accused-appellant has deposited the civil liability of Rs.9,35,777/-,

which is noted in the impugned judgment. Learned counsel further

submits that the accused-appellant has also deposited the fine

amount of Rs.10,000/- before the Rajasthan State Legal Services

Authority, Rajasthan High Court Jodhpur. The receipt of which has

been furnished by learned counsel for the accused-appellant and

the same is taken on record.

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

offence is akin to a civil offence and the accused-appellant does

not have any criminal antecedents to his discredit.

6. Learned counsel for the accused-appellant further submits

that the sentence awarded to the accused-appellant was

suspended by this Hon'ble Court vide the order dated 23.06.2017

passed in S.B. Criminal Misc. Bail Application (Suspension of

Sentence) No. 628/2017, and thus, he is on bail.

7. Learned counsel for the accused-appellant however, makes a

limited prayer that the accused-appellant 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

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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)... "

8. Learned counsel for the Electricity Department, Mr. Vikram

Choudhary fairly submits that the issue in the present case is

covered by the judgment rendered by this Court in the case of

Hari Singh v. State of Rajasthan S.B. Criminal Appeal No .

896/2017, wherein keeping into consideration the cases of

Arvind Mohan Sinha Vs. Amulya Kumar Biswas (1974) 4

SCC, Mohd. Hashim Vs. State of U.P. & Ors., (2017) 2 SCC

198 and Lakhvir Singh and Ors. Vs. The State of Punjab and

Ors. (2021) 2 SCC 763 rendered by the Hon'ble Apex Court; and

and the case of Brij Lal Vs. State of Rajasthan RLW 2002 Raj

945, rendered by a Coordinate Bench of this Hon'ble Court; this

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Court extended the benefit or probation under Section 4 of the

Probation of Offenders Act,1958 to the petitioner convicted of the

same offence, being Section 138 Electricity Act, 2003.

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."

10.1 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... "

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10.2 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..."

10.3 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

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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."

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

the accused-appellant has any criminal antecedents. Thus, the

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

Offenders Act, 1958.

11.1 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.

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

maintaining the conviction of the present accused-appellant for

the offence under Section 138 of Electricity Act, 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 appellant shall be released on probation, under