Rajasthan High Court
Rajveer Singh vs State (2024:Rj-Jp:6990) on 9 February, 2024
Author: Ganesh Ram Meena
Bench: Ganesh Ram Meena
[2024:RJ-JP:6990]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 158/1994
Rajveer Singh S/o Shri Gaj Singh, R/o Hathwai, Police Station,
Rajakheda, Dist. Dholpur.
----Accused-Appellant
Versus
State of Rajasthan
----Non-appellant
For Appellant(s) : Mr. Brij Kishore Sharma
For Respondent(s) : Mr. Mahender Meena, P.P.
HON'BLE MR. JUSTICE GANESH RAM MEENA
Judgment / Order
09/02/2024
1. The present criminal appeal has been filed by the accused-
appellant against the judgment of conviction and sentence dated
15.03.1994 passed by the Court of learned Special Judge and
Additional Sessions Judge, Dholpur (for short 'the trial Court') in
Sessions Case No.62/1992, whereby the appellant was convicted
for offence under Section 366-A of IPC and was sentenced to
undergo rigorous imprisonment for three years imprisonment and
a fine of Rs.200/-, and in default of payment of fine, he has to
undergo additional fifteen days' Simple Imprisonment.
2. Counsel for the appellant instead of arguing the appeal on
merits with regard to challenge of the conviction of the appellant
for the alleged offence, confines his arguments with a plea for
grant of benefit of probation to the appellant under Section 4 of
the Probation of Offenders Act, 1958 (hereinafter referred to as
'the Act of 1958'). Counsel further submits that at the time of the
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alleged incident, the appellant was of seventeen years of age.
After conviction and filing of the present appeal, the sentence
awarded to the appellant was suspended on 11.04.1994 and was
released on bail. Counsel also submits that the appellant after
being released on bail, is living in the society peacefully. He also
submits that there are no criminal antecedents to discredit to the
appellant. Counsel further submits that the appellant assures this
Court that he will not commit any offence in future and he is ready
to submit the bonds and sureties alongwith the undertaking to
maintain peace. Therefore, he may be extended the benefit of
probation under the provisions of the Act of 1958.
3. On the other hand, learned Public Prosecutor has vehemently
opposed the plea made by counsel for the appellant for grant of
benefit of probation to the appellant, in view of nature of
allegations levelled against him. He further submits that the
nature of allegation does not warrant any kind of leniency in
awarding sentence to the appellant. Thus, the accused appellant
does not deserve for benefit of probation under the provisions of
Section 4 of the Act of 1958.
4. Considered the submissions made by counsel for the
appellant as well as the learned Public Prosecutor.
5. Section 4 of the Act of 1958 deals with the power of the
Court to release certain kind of convicts on probation, 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 for
life and the court by which the person is
found guilty is of opinion that, having
regard to the circumstances of the case
[2024:RJ-JP:6990] (3 of 8) [CRLA-158/1994]
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
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
[2024:RJ-JP:6990] (4 of 8) [CRLA-158/1994]
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 "
6. In the present case, the appellant was charged by the trial
Court for the offence under Sections 366-A & 376 of IPC. After
considering the evidence adduced by the prosecution, the
appellant was acquitted for the charge of offence under Section
376 IPC. Learned trial Court observed that the victim who had
levelled the allegations against the appellant of procuration and
rape as per the evidence available on record, remained and
resided with him at various places for about fifteen days in rented
premises & hotels but neither she raised any alarm nor she
conveyed to any person in the meantime that she is being
subjected to rape.
7. Section 4 of the Act of 1958 provides for grant of benefit of
probation to a convict who is convicted for the offence other than
the offence punishable for death and term of life. The appellant
has been convicted for offence under Section 366A of IPC which is
punishable with a maximum sentence upto ten years and no
minimum sentence has been prescribed for the aforesaid offence.
In such circumstances, a convict for offence under Section 366A
can also be allowed the benefit of probation looking to the other
circumstances. Counsel for the appellant submitted that at the
time of the incident, age of the appellant was seventeen years and
was a student and no criminal case has ever been registered
against him except the present one and the accused appellant has
suffered a lot in the long proceedings for about thirty years.
[2024:RJ-JP:6990] (5 of 8) [CRLA-158/1994]
8. The Co-ordinate Bench of this Court at principle Seat Jodhpur
in case of "Smt. Sita Vs. State of Rajasthan" in S.B. Criminal
Appeal No.657/2005" decided on 24.11.2022 has observed as
under:-
"13. In the case of Arvind Mohan Sinha
Vs. Amulya Kumar Biswas (1974) 4 SCC,
the Hon'ble Apex Court observed asunder:-
"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."
14. In the case of Brij Lal Vs. State
of Rajasthan RLW 2022Raj 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... "
14.1 In the case of 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
[2024:RJ-JP:6990] (6 of 8) [CRLA-158/1994]
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..."
14.2 In the case of Lakhvir Singh and Ors.
Vs. The State ofPunjab 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 397of Indian Penal Code, the
[2024:RJ-JP:6990] (7 of 8) [CRLA-158/1994]
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."
9. The main object of awarding sentence to a convict person is
to bring certain character reformation in him and to keep him
away from the society so that the impact of his criminal character
does not put an adverse impact on any other person.
10. In the present case, after conviction of the appellant, his
sentence was suspended and vide order dated 11.04.1994, he was
released on bail. Since after his release on bail, he is living in
society peacefully without there being any criminal antecedents to
his discredit.
11. After taking into due consideration the legislative intent of
the Act and the decision as referred in above paras, including the
fact that the appellant was seventeen years of age at the time of
alleged incident and there is no criminal antecedent to discredit to
the appellant, this Court deems it appropriate to extend the
benefit of probation to the accused appellant under Section 4 of
the Act of 1958, maintaining the impugned order of conviction
which does not call for any interference.
12. Resultantly, the present appeal is partly allowed. While
maintaining the conviction of the present accused-appellant for
the offence under Section 366A of IPC, as recorded by the learned
Trial Court in the impugned order, this Court interferes only with
the sentence part of the said order and directs that the appellant
shall be released on probation under Section 4 of the Act of 1958
upon his furnishing a personal bond in a sum of Rs. 50,000/- and
two sureties in the sum of Rs. 25,000/- each to the satisfaction of
the learned Trial Court with a further undertaking that he shall
[2024:RJ-JP:6990] (8 of 8) [CRLA-158/1994]
maintain peace and good behaviour for a period of two years and
shall not repeat the offence. The appellant is allowed two months'
time to furnish the bail bond, sureties and undertaking as ordered
above. The appellant is on bail. He need not to surrender. His bail
bonds stands discharged accordingly.
13. The record of the trial Court be sent back.
(GANESH RAM MEENA),J
ARTI SHARMA /5
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