Rajasthan High Court
Banwari vs State (2024:Rj-Jp:6960) on 9 February, 2024
Author: Ganesh Ram Meena
Bench: Ganesh Ram Meena
[2024:RJ-JP:6960]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 39/1994
1.Banwari s/o Narain, r/o kolida (Sikar)
2.Hemaram s/o maknaram, r/o kolida, PS raghunathgarh, Distt.
Sikar
3.Mst. Shravani w/o Banwari, r/o kolida, PS raghunathgarh,
Distt. Sikar
4.Hardevaram s/o Khinvaram r/o kolida, PS raghunathgarh,
Distt. Sikar
5.Ramniwas s/o bhagwanaram, r/o narsinghani, PS Nawalgarh,
Distt. Jhunjhunu
6.Hariram s/o Bhagwanaram, r/o narsinghani, PS Nawalgarh,
Distt. Jhunjhunu
7. Balvir s/o Bhagwanaram r/o narsinghani, PS Nawalgarh, Distt.
Jhunjhunu
8. Mohan s/o Bhagwanaram r/o narsinghani, PS Nawalgarh,
Distt. Jhunjhunu
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. Harendra Sinsinwar,
Mr. J. S. Rathore
For Respondent(s) : Mr. Mahender Meena, PP.
HON'BLE MR. JUSTICE GANESH RAM MEENA
Judgment / Order
09/02/2024
1. The present criminal appeal has been preferred by the
accused appellants against the judgment of conviction and
sentence dated 21.01.1994 passed by the Court of learned
Additional Sessions Judge, Sikar (for short 'the learned trial
Court') in Sessions Case No.32/1990 whereby each of the accused
appellants have been convicted and sentenced as under:
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[2024:RJ-JP:6960] (2 of 9) [CRLA-39/1994]
Offence Under Sentence Fine In default of Payment
Section of Fine
147 IPC 6 Month Simple 100/- 7 days' additional SI
Imprisonment
148 IPC 1 Year Simple 200/- 15 days' additional SI
Imprisonment
323/149 IPC 3 Years Simple 100/- 7 days' additional SI
Imprisonment
342 IPC 3 Years Simple 100/- 7 days' Imprisonment
Imprisonment
395 IPC 5 Years Simple 2000/- 6 months' additional SI
Imprisonment
459 IPC 5 Years Rigorous 2000/- 6 months' additional SI
Imprisonment
436 IPC 5 Years Rigorous 2000/- 6 months' additional SI
Imprisonment
365 IPC 2 Years Rigorous 500/- 1 month's additional SI
Imprisonment
2. Sentences of the accused appellants were ordered to run
concurrently.
3. However, no sentence was awarded in view of the fact that
they have been convicted for the offence under Section 459 IPC.
4. Learned counsel appearing for the appellants instead of
arguing the appeal on its merits with regard to challenge of the
conviction of the appellants, confines his arguments to the extent
of prayer for grant of benefit of probation under Section 4 of the
Probation of Offenders Act, 1958 (for short 'the Act of 1958').
Counsel further submits that the accused party and the
complainant party belong to the same family and because of some
family disputes, the alleged incident took place, though, there was
no such pre-determined motive of the appellants for committing
such offence. Counsel further submits that except present case,
no case has been registered against the accused appellants.
Counsel further submits that the appellants assure the Court that
after conviction, they are living in cordial atmosphere and also
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[2024:RJ-JP:6960] (3 of 9) [CRLA-39/1994]
assure for the future. The conduct of the appellants during the
course of trial as also pending appeal remained good. Therefore,
they may be extended the benefit of probation in view of the
mandate of Section 4 of the Act of 1958. Counsel further submits
that the alleged incident is of the year 1988 and in these last 35
years, there is no allegation of any kind of criminal act against the
appellants. Therefore, the appellants may be granted the benefit
of probation under Section 4 of the Act of 1958 as appellants have
no criminal antecedents to discredit them.
5. Learned Public Prosecutor has vehemently opposed the
submission advanced by the counsel appearing for the accused
appellants and submits that looking to the overall facts and
circumstances of the case, the well reasoned and the speaking
order passed by the learned Court below, the accused appellants
are not entitled for any kind of indulgence by this Court.
6. Considered the submissions made by counsel for the
appellants as well as learned Public Prosecutor.
7. Learned trial Court did not expect and discuss the plea of the
accused appellants for grant of probation under the provision of
Section 4 of Act of 1958 observing that the accused appellants
does not deserve any leniency in sentence looking to the nature of
allegations levelled against them.
8. Section 4 of the Act of 1958 deals with the power of Court to
release certain offenders on probation for good conduct, which is
quoted as under:-
"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
[2024:RJ-JP:6960] (4 of 9) [CRLA-39/1994]
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) When an order under sub-section (1) is
made, the court may, if it is of opinion that in the
interests of the offender and of the public it is
expedient so to do, in addition pass a supervision
order directing that the offender shall remain
under the supervision of a probation officer
named in the order during such period, not being
less than one year, as may be specified therein,
and may in such supervision order impose such
conditions as it deems necessary for the due
supervision of the offender.
(4) The court making a supervision order
under sub-section (3) shall require the offender,
before he is released, to enter into a bond, with
or without sureties, to observe the conditions
specified in such order and such additional
conditions with respect to residence, abstention
from intoxicants or any other matter as the court
may, having regard to the particular
circumstances, consider fit to impose for
[2024:RJ-JP:6960] (5 of 9) [CRLA-39/1994]
preventing a repetition of the same offence or a
commission of other offences by the offender.
(5) The court making a supervision order
under sub-section (3) shall explain to the
offender the terms and conditions of the order
and shall forthwith furnish one copy of the
supervision order to each of the offenders, the
sureties, if any, and the probation officer
concerned."
9. The aforementioned section speaks of the fact that the
benefit of probation can be allowed to a convict person in case he
is not convicted in any offence punishable with death or
imprisonment for life.
10. Counsel for the appellants has placed reliance upon the
judgment passed by the Co-ordinate Bench of this Court at
Principal Seat, Jodhpur in the case of "Bagdawat Ram and Ors.
Vs. State of Rajasthan; S.B. Criminal Appeal No.368/1991"
decided on 18.05.2022. In the case of Bagdawat and others
(supra), the Co-ordinate Bench of this Court at Principal Seat,
Jodhpur has observed as under:-
"12.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
[2024:RJ-JP:6960] (6 of 9) [CRLA-39/1994]
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..."
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
[2024:RJ-JP:6960] (7 of 9) [CRLA-39/1994]
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 Singhv. State of Punjab ILR (1981) P & H
1 are in the same context."
11. The aforesaid case of Bagdawat and others (supra)
pertains to the conviction under Section 395 of IPC as is the
present case wherein the accused appellants have been convicted
and sentenced for maximum 10 years.
12. Learned Public Prosecutor is not in a position to controvert
the submissions.
13. Counsel for the accused appellants submits that there are no
other criminal case registered against the appellants and there are
no criminal antecedents to discredit to the appellants.
[2024:RJ-JP:6960] (8 of 9) [CRLA-39/1994]
14. The object behind awarding sentence and sending an
accused in custody is to bring a reform in his character and to
keep him away from the society, so that his character of
committing an offence does not bring any impact on any other
person living in the society.
15. The accused appellants were convicted in the year, 1994 and
after filing of the present appeal, their sentence was suspended
and they were released on bail. The accused appellants are
residing in the society peacefully and there are no criminal
antecedents to discredit to them in last 29 years. Looking to this
fact, this Court can safely held that the accused appellants are not
required to be sent back to serve the sentence for character
reformation.
16. In view of the discussion made above, the accused
appellants are entitled to be extended the benefit of probation
under Section 4 of the Act, 1958 and instead of asking them to
serve the imprisonment they be released on certain conditions.
17. Resultantly, the present appeal is partly allowed. While
maintaining the conviction of the present accused appellants for
the offences under Sections 147, 148, 365, 395, 342, 436, 459,
323/149 and 325/149 as regarded by the learned trial Court 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, 1958 upon their
furnishing a personal bond in sum of Rs.50,000/- and two sureties
in sum of Rs.25,000/- each to the satisfaction of the trial Court
with a further undertaking that they will maintain peace and good
behavior for a period of two years and shall not repeat the
[2024:RJ-JP:6960] (9 of 9) [CRLA-39/1994]
offence. The appellants are allowed two months' time to submit
their personal bonds, the sureties and the undertaking before the
trial Court. The appellants are on bail, they did not need to
surrender and their bail bonds stand cancelled accordingly. The
accused appellants are required to deposit the amount of fine as
ordered by the trial Court.
18. The record of the learned trial Court be sent back
immediately.
(GANESH RAM MEENA),J
Seema/1
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