Rajasthan High Court - Jodhpur
Bhanwar Lal vs State Education And Ors. ... on 24 May, 2024
[2024:RJ-JD:23694]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 4696/2011
Bhanwar Lal
----Petitioner
Versus
State Education And Ors.
----Respondent
For Petitioner(s) : Mr. Kunal Upadhyay
For Respondent(s) : Mr. Sarwan Kumar
HON'BLE MR. JUSTICE ARUN MONGA
Order (oral)
24/05/2024
1. Grievance of the petitioner inter alia stems out of impugned
communications dated 08.04.2011 (Annex.-1) & 09.04.2011
(Annex.-2) vide which he was informed by the Principal
(Respondent No. 4) that directions have been sought from the
Superintendent of Police as to whether a person who has been
convicted can be given appointment or not.
2. During pendency of the writ proceedings, following interim
order was passed way back on 27.05.2011:-
"Issue notice of the writ petition, returnable within
four weeks, to the respondents.
Notice be also issued on the stay application.
Meanwhile, respondents are directed to allow the
petitioner to join duty forthwith."
3. Apropos, on a Court query, it turns out that not only the
petitioner has been appointed on the post in question, but
thereafter his services have also been confirmed. He has also been
accorded further benefits of selection scale as well as promotion.
4. In any case, it so turns out that the petitioner's appointment
was withheld by the department despite him being successful for
the reasons that he had though been convicted by a competent
criminal Court in criminal proceedings arising out of FIR Nos.
[2024:RJ-JD:23694] (2 of 4) [CW-4696/2011]
91/2002 & 402/2003 under Section 323 & 341 of IPC, but had
been since released on probation, therefore, he was not accorded
the benefit of his selection.
5. In this context, reference may be had to a judgment
rendered by me while I was a puisne judge in Punjab and Haryana
High Court in a case titled Narsi vs. State of Haryana & Ors.:
CRM-A-38-MA-2017 (O&M), decided on 17.07.2023, keeping in
mind the concept of reformation vis a vis recidivism. Relevant
thereof is reproduced hereinbelow:-
"11. There is no gain saying that the relevant statutory
provisions and the principles underlying and pertaining to release
of offenders on probation, instead of straightaway sentencing them,
need to be kept in mind by the Courts while passing sentencing
orders.
11.1 Probation of Offenders Act, 1958 (for short "Act") was
enacted in order to save offenders in appropriate cases from being
habitual offenders by providing them with a chance to reform rather
than dumpling into jails. For ready reference, Section 4 of Act is
reproduced herein below:
"Section 4 in The Probation of Offenders Act, 1958
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) 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
[2024:RJ-JD:23694] (3 of 4) [CW-4696/2011]
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 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.
11.2. Objectives and principles of criminal law as envisioned in
the provision ibid, apart from deterrence against committing crime
against society, are inter-alia focused on the reformation of
offenders, which inheres the concept of probation. Modern criminal
justice system often aims to balance punishment with
rehabilitation, emphasizing the potential for positive change in
individuals who have committed crime. The goal of criminal law
extends beyond mere punishment. While punishment serves to deter
and hold individuals accountable for their actions, there is a
growing recognition of the importance of addressing the underlying
factors that contribute to criminal behaviour. This perspective
emphasizes the potentials of offenders to reform and reintegrate
into society as law-abiding citizens. Probation is one of the
mechanisms used to achieve this reformation objective. In certain
cases, certain offenders may be asked to remain under community
supervision rather than being incarcerated. During such probation
period, the offender can be put to follow certain conditions, such as
regular reporting to a probation officer, participating in
counselling or treatment programs and maintaining employment or
education. The aim is to provide support, guidance and
opportunities for the offender and to address the root causes of
their criminal behaviour and develop positive life skills. Close
monitoring and guidance provided during probation can help the
offender make positive changes in their life and reduce the
likelihood of reoffending.
11.3. Overall, the concept of focusing on reformation and using
alternatives to imprisonment, such as release on probation, reflects
a more holistic approach of criminal justice that takes into account
the potential for positive change and the overall betterment of both
the individual and society."
6. In the aforesaid premise, writ petition is allowed. Impugned
orders / communications dated 08.04.2011 (Annex.-1) &
09.04.2011 (Annex.-2) are set aside with consequences to follow.
[2024:RJ-JD:23694] (4 of 4) [CW-4696/2011]
7. It is made clear that the appointment of the petitioner shall
not be canceled on the ground that he was released by the
competent Court on probation.
8. Pending application(s), if any, shall stand disposed of.
(ARUN MONGA),J
180-DhananjayS/-
Whether Reportable: Yes / No
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