Naresh Chandra Gahatori vs State Of Uttarakhand
2021 Latest Caselaw 4938 UK

  IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
                Criminal Revision No.117 of 2009


Naresh Chandra Gahatori                         ...............Revisionist

                                  Versus

State of Uttarakhand                       ......             Respondent

Mr. Kishore Kumar, learned Counsel for the revisionist.
Mr. Siddharth Bisht, learned B.H. for the State

Hon'ble R.C. Khulbe, J.

Heard learned counsel for the parties.

2. This criminal revision, preferred by the revisionist u/s 397/401 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 21.12.2006 passed by the learned Chief Judicial Magistrate, Champawat, in Criminal Case No.21 of 2004 U/s 279, 337, 427 IPC, State Vs. Naresh Gahatori, whereby the learned Magistrate convicted the revisionist under Section 279 of IPC and sentenced him three months R.I. with a fine of Rs.200/-; convicted under Section 337 of IPC and sentenced him three months R.I. and also convicted under Section 427 of IPC and sentenced him six months R.I. and with a fine of Rs.500/- as well as the judgment and order dated 28.07.2009 passed by the learned Sessions Judge, Champawat, in Criminal Appeal No.01 of 2007, Naresh Gahtori Vs. State, whereby the learned Sessions Judge dismissed the appeal and affirmed the order passed by the Lower Court.

3. Brief facts of the present case are that the informant Sukhjinder Singh submitted information with police station Banbasa. Accordingly, impugned FIR No.155 of 2003 was registered U/s 279, 337, 338, 427 IPC. After the investigation, charge sheet was submitted;

accordingly, cognizance was taken after giving necessary copies to the revisionist as provided under Section 207 Cr.P.C., statement of revisionist was recorded, who pleaded not guilty and claimed to be tried.

4. In order to prove its case, the prosecution examined PW1 Sukhjinder Singh, PW2 Jaspal Singh, PW3 Amarjit Singh, PW4 Jaman Singh, PW5 Dr. Sanjeev Prakash, PW6 Suresh Giri, PW7 Constable Laxman Singh and PW8 S.I. K.P. Singh.

5. Oral and documentary evidence was put to the revisionist under Section 313 Cr.P.C. in reply to which he alleged the same to the false but no evidence in defense was adduced.

6. After hearing both the parties, learned trial Court found that prosecution has successfully proved the charges under Sections 279, 337, 427 IPC against the revisionist and, accordingly, he was found guilty. On hearing the sentence he was sentenced for the offences as mentioned in para no.1 of this judgment. Aggrieved by the judgment and order dated 21.12.2006 in Criminal Case No.21 of 2004(New No.73/2006), State Vs. Naresh Gahatori, the revisionist preferred Criminal Appeal No.01 of 2007, Naresh Gahtori Vs. State whereby the leaned Sessions Judge, dismissed the appeal and affirmed the lower Court order. Hence this revision has been filed.

7. Learned counsel for the revisionist fairly argued that he does not want to argue the case on merit, since the learned trial Court has rightly convicted the revisionist as per evidence produced by the prosecution but the matter relates to the year 2003; 18 years have elapsed; the revisionist has not been previously convicted in any other crime; there is no criminal history against him; it was an accident and a benefit of first offenders' act may be given to him in the light of the evidence.

8. I have also gone through the statements of the above witnesses. The testimony of the above witnesses is not only natural but also trustworthy. They have been subjected to lengthy cross-examination but nothing has come out in their evidence which may create any reasonable doubt in their testimony. In the above circumstances the Trial Court has rightly held that the prosecution has successfully proved the charges against the revisionist beyond reasonable doubt. There is no illegality in the impugned judgment, since material and substantial evidence is available on record against the revisionist. The revisionist has rightly been convicted by the Trial Court under Sections 279, 337, 427 IPC and the order of conviction and sentence has also rightly been upheld by the Appellate Court.

9. Learned State Counsel fairly submitted that it is true that the offence relates to the year 2003 and 18 years have elapsed and he did not receive any information regarding the criminal history of the revisionist and, accordingly, looking to the nature of offence, the revisionist can be extended the benefit of First Offenders Act.

10. In this regard, the Hon'ble Apex Court in the case of "Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjola" reported in 2001 SCC (Cri.) 2, 897, in paragraph no.7, has held as under:

"7. Probation of Offenders Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as a useful and self-reliant members of society without subjecting them to deleterious effect of jail life. The Act empowers the Court to release on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the description mentioned in Sections 3 and 4 of the said Act."

11. Section 4 of the Probation of Offenders Act, 1958 read 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 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 5 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 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."

12. Section 4 of the Act would demonstrate that if a person is found guilty of having committed an offence not punishable with death or imprisonment for life, in that event, considering the nature of the offence and the character of the offender, the Court, instead of sentencing him at once to any punishment, may release such person on probation of good conduct, on his entering into a bond, with or without sureties, for a period not exceeding three years. Before releasing the offender, on probation, the Court must satisfy itself that 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. The Court before passing the order of release on probation may also call report of the Probation Officer. The Court while releasing on probation may also direct that accused shall remain under the supervision of Probation Officer for a period not less than one year.

13. A careful reading of Section 4 of the Act would reveal that if the offence is punishable for a period more than 2 years, but not punishable with death or imprisonment for life, admonition of sentence shall not be required and if person, released on probation, is found involved in any offence during the period of probation or otherwise, is found behaving in violation of condition of bond, he shall be directed to serve out the sentence awarded by the court. In other words, while on probation, such person should not involve himself in subsequent

offence or must honour the condition of his bond / surety bond and if he breaches the same, he has to serve out the sentence awarded by the Court.

14. In this regard, the Hon'ble Apex Court in the case of "Paul George vs. State of NCT of Delhi" reported in 2008 SCC (Cri.) 2, 768, in paragraph no.12, has held as under:

12. This litigation has been going on for the last 20 years and has been fought tenaciously through various courts, we are also told that the appellant who has had a good career throughout but for this one aberration has since been dismissed from service on account of his conviction. We, therefore, while dismissing the appeal, feel that the ends of justice would be met if we direct that the appellant be released on probation under Section 4 of the Probation of Offenders Act, 1958 on conditions to be imposed by the Trial Court. The appeal is disposed of in the above terms.

15. In the present case the revisionist is the first- time offender. The incident seems to have taken place 18 years ago.

16. Therefore, considering the provisions of the Probation of Offenders Act, 1958, no useful purpose would be served to send the revisionist to jail to serve out the remaining sentence. Rather, in the opinion of the Court, he should be released on probation in order to reform himself.

17. The impugned judgments and orders passed by the trial court and the appellate Court below are hereby affirmed and the present revision, thus, stands partly allowed. The conviction part of the revisionist - Naresh Chandra Gahatori, under Sections 279, 337, 427 IPC, is left intact. However, as far the sentence part is concerned, it is directed that the revisionist shall be released on probation for a period of one year on

furnishing a personal bond to the satisfaction of the concerned Trial Court with one surety. The fine, as imposed by the Trial Court, shall be deposited by the revisionist within a period of one month, if not already deposited, from the date of receipt of this order, to the court concerned. The concerned Magistrate shall be at liberty to impose such conditions while executing the bond which he feels fit in accordance with the law. It goes without saying that if revisionist fails to observe good conduct and behaviour during probation or is found violating any condition, to be imposed; the Court concerned shall be at liberty to cancel the bonds calling the accused-revisionist to serve out the remaining sentence. The revisionist shall appear before the Trial Court on or before 04.01.2022 for compliance.

18. Let a copy of this judgment be sent forthwith to the learned Trial Court for information/compliance.

(R.C. Khulbe, J.) 06.12.2021 Sukhbant