Prem Singh vs State Of Uttarakhand
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Uttarakhand High Court

Prem Singh vs State Of Uttarakhand on 4 March, 2024

Author: Pankaj Purohit

Bench: Pankaj Purohit

     HIGH COURT OF UTTARAKHAND AT NAINITAL
               Criminal Revision No. 213 of 2013
Prem Singh                                            .....Revisionist
                                  Vs.
State of Uttarakhand                                  .....Respondent
Presence:
       Mr. R.P. Nautiyal, learned Senior Advocate assisted by Ms. Garima
       Thapa, learned counsel for the revisionist.
       Mr. K.S. Bora, learned Deputy Advocate General with Mr. S.C.
       Dumka, learned AGA for the State.

Hon'ble Pankaj Purohit, J.

Heard learned counsel for the parties.

2. The present criminal revision preferred under Section 397 r/w 401 of Cr.P.C. 1973 (hereinafter referred to as Cr.P.C.) is directed against the judgment and order dated 27.06.2013, passed by learned Sessions Judge, Rudraprayag in Criminal Appeal No.19 of 2010, Prem Singh Vs. State of Uttarakhand, whereby the said court has dismissed the appeal and affirmed the judgment and order dated 20.09.2010, passed by learned Judicial Magistrate, Rudraprayag in Criminal Case No. 97 of 2010, State Vs. Prem Singh.

3. In a nut-shell, case of the prosecution is that the then Secretary, Shadhan Sahkari Samiti, Ratura, District Rudraprayag, the revisionist being posted in the aforesaid capacity by making interpolation in records has embezzled an amount of ₹47,643.16/-. In respect of the aforesaid embezzlement and criminal breach of trust, the Member Secretary of the Committee directed to lodge an FIR against the revisionist. Accordingly, an FIR was registered against the revisionist under Sections 408, 467 and 468 IPC and on completion of investigation a charge-sheet was submitted against the revisionist under the aforesaid sections before the concerned court.

4. The Court took cognizance; summoned the accused in the court and in compliance of provisions of Section 207 Cr.P.C., copies of prosecution documents were provided to him; thereafter a

charge against the revisionist was framed under Sections 408, 467 and 468 IPC, which the revisionist-accused denied and claimed to be tried.

5. Prosecution in order to prove its case produced as many as five witnesses namely PW1- Suresh Ram Arya, PW2-H.C. Buddhi Singh Panwar, PW3- Surendra Singh Bhandari, PW4-Narendra Singh Bhandari and PW5-Insp. R.P. Singh.

6. During course of examination-in-chief, PW1-Suresh Ram Arya, passed-away due to which, no cross-examination was done from this witness. Accordingly the evidence of that witness was directed not to be read in evidence. Thereafter the statement of revisionist-accused was recorded under Section 313 Cr.P.C., in which he stated that witnesses have deposed falsely against him, however he denied to lead any evidence in his defence. The trial court after hearing learned counsel for the parties and perusal of the documents available on record, proceeded to convict the accused for the offence under Section 408 IPC and sentenced him to undergo three years rigorous imprisonment with a fine of ₹5,000/- vide judgment and order dated 20.09.2010. Against the said judgment dated 20.09.2010, the appeal was carried before the Sessions Judge, Rudraprayag, which was also dismissed by the judgment and order dated 27.06.2013, passed by learned Sessions Judge, Rudraprayag. Assailing both the judgments present revision has been preferred before this Court.

7. I have heard learned counsel for the parties at length and have carefully perused the entire documents available on record.

8. Learned Senior Advocate for the revisionist having argued extensively finally submitted before this Court that the judgment and order passed by the trial court as also the appellate court are based on the evidence produced before those Courts and if this Court does not convince on the argument advanced by him, he also prayed that the revisionist may be extended, the benefit of Probation of Offenders Act, 1958 (hereinafter to be referred to as 'the Act of 1958').

9. To this submission learned State counsel has no serious objection and he also admitted that the revisionist can be extended the benefit of first offenders act.

10. Since the revisionist at the time of offence was 40 years of age (as he was aged about 53 years in 313 Cr.P.C. recorded on 06.07.2010) and now he is about 67 years of age, which was his first offence. He belongs to the poor strata of family and also has liability of his children. It was also argued that he is suffering from various ailments.

11. Learned State counsel also stated before this Court that he has not received any report regarding any other criminal antecedents of the revisionists.

12. On the basis of the aforesaid submission, it is strenuously submitted by the learned counsel for the revisionist/accused that the provision of Section 4 of the Act of 1958 may be pressed into service and to postpone the sentence awarded by the Courts below and to release the revisionist/accused on the bond of good-conduct to be executed by him before the Probationery Officer, Rudraprayag or before learned trial court.

13. In order to buttress his argument, learned counsel for the revisionist/accused placed reliance on the judgment passed by the Coordinate Bench of this Court in Criminal Revision No.154 of 2012 Harendra Singh Vs. State of Uttarakhand dated 29.08.2020, wherein the Court has granted the benefit of the Act, 1958. Paras 9 and 14 of the aforesaid judgment, which contained Hon'ble Apex Court's judgments on the point are quoted below:-

"Para-9: 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."

Para-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."

14. It is submitted by learned counsel for the revisionist/accused that the Coordinate Bench of this Court while extending the benefit of the aforesaid provision of the Act, 1958 has placed reliance upon the judgment rendered by Hon'ble Apex Court, which has been quoted in Para 14 of the judgment of co-ordinate Bench of the Court.

15. Learned Deputy Advocate General does not dispute the application of the provisions of Section 4 of the Act, 1958, as in view of the provisions of the said Act, 1958, power can be exercised, while if a person is found guilty of committing an offence not punishable with death or imprisonment for life and with regard to the facts and circumstances of the case, like nature of the case and character of the offender, the revisionist/accused can be given benefit of the said provision.

16. In order to appreciate the argument advanced by the learned counsel for the revisionist, the provision of Section 4 of the Act of 1958, is required to be appreciated with, the same is quoted hereinbelow:

"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 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."

17. From perusal of the aforesaid provision, it is clear that the power is there with the Court to release a person on a bond of good conduct by extending the benefit of Section 4 of the Act 1958, if any person is found guilty of having committed an offence not punishable with death or imprisonment for life, but, at the same time, the Court will extend the benefit so provided under Section 4 of the Act of 1958 having due regard to the nature of the offence and the character of the offender.

18. From the perusal of the record, there is no manner of doubt that the revisionist/accused was convicted under Section 408 IPC and was sentenced to undergo three years rigorous imprisonment with a fine of ₹5,000/-.

19. From the reading of the aforesaid section, it is clear that the section, in which the revisionist/accused was convicted, does not

entail the punishment of death or imprisonment for life. So, the nature of the offences is such, where, this Court can give the benefit of the Act of 1958 to the revisionist/accused. The submission made by the learned counsel for the revisionist/accused regarding the fact that there is other circumstance which would warrant the application of Section 4 of the Probation of Offenders Act, 1958 to the facts of the case, i.e. the pendency of the criminal trial, appeal and revision against the revisionist/accused since 1998 and he has undergone the trauma of the criminal trial for the last so many years, coupled with the fact that the revisionist/accused has no criminal antecedents and even prior and after the aforesaid crime, this is an only offence which has so far been registered against the revisionist/accused and he is permanent resident of village-Banspani (Udaipur), Tehsil Ukhimath , District Rudraprayag.

20. In this view of the fact, this Court is of the opinion that there is no useful purpose for sending the revisionist/accused to jail for serving the sentence awarded by the learned trial court which was subsequently affirmed by the appellate court.

21. In this view of the matter, the criminal revision is partly allowed. Judgment and order passed by learned trial court and affirmed by learned appellate court are hereby further affirmed. The conviction as recorded by the learned trial court and upheld by learned appellate trial court shall remain intact. However, so far as the sentence part is concerned, it is directed that the revisionist/accused shall be released on probation for a period of one year on furnishing a personal bond with two sureties each of like amount to the satisfaction of the concerned trial court. The fine imposed by the trial court shall be deposited by the revisionist/accused within a period of one month, if not already deposited, from the date of receipt of this order, with the Court concerned. The concerned Magistrate shall be at liberty to impose such condition(s) while executing the bond which he feels fit in accordance with the law. It goes without saying that if accused/revisionist fails to observe good conduct and behaviour during probation, or is found violating any condition imposed, the

Court concerned shall be at liberty to cancel the bond of good conduct calling the accused/revisionist to serve out the sentence awarded by the Courts below. The revisionist is on bail. The revisionist need not to surrender provided he executes the bond of good conduct before the court concerned as directed above, within 15 days from the date of this judgment.

22. Let a copy of this judgment, along with the LCR, be sent forthwith to the learned trial court for information/compliance.

(Pankaj Purohit, J.) 04.03.2024 SK